Surpass Leather Co.

In the Matter of SURPASS LEATHER COMPANY and INDEPENDENT LEATHER WORKERS' UNION OF FULTON COUNTY Case No. C455.-Decided March 27, 1940 Leather Manufacturing Industry-Discriniination: discharge for union mem- bership and activities ; charges of, sustained as to one employee, dismissed as to another-Strike: spontaneous refusal by several coworkers of discrimina- torily discharged employee to continue working; strike of all employees called by union because of discriminatory discharge-Interference, Restraint, and Coercion: during strike, supervisory employees urged individual employees to return to work, stated union would not be permitted to succeed at plant, and that there would be no work if union won consent election-Strike Settlement Agreement: settling strike, provided for consent election to determine collective- bargaining agency choice of employees, union agreed to withdraw charges filed against employer and filed no further charges respecting matters occurring on or before date of agreement, except as to discriminatory discharge of one employee-Discrimination: subsequent to signing of strike settlement agree- ment: discriminatory distribution of maintenance work to influence employees' choice in consent election, discriminatory application of sick-benefit plan as to one employee ; charges of discriminatory delay in reinstating 7 employees following strike, dismissed-Reps esentataves: proof of choice : results of con- sent election disregarded, does not reflect employees' free choice in view of employer's unfair labor practices ; membership cards in evidence ; union not designated by a majority-Collective Bargainotg: refusal to bargain collectively, allegations of, dismissed, upon failure to prove majority-Reinstatement Ordered: discriminatorily discharged employee upon resumption of operations- Back Pay: awarded discriminatorily discharged employee from date of dis- charge to date of closing of plant less net earnings-Remedial Order: payment of sick benefits to one employee ; payment of sum equal to that which would have been earned in equal distribution of maintenance work, to 68 employees. Mr. John H. Dorsey, for the Board. Mr. John W. Morgan, of Lynn, Mass., and Maider di Maider, by Mr. Lydon F. Maider, of Gloversville, N. Y., for the respondent. Mr. Harry Pozefsky, of Gloversville, N. Y., for the Independent. Mr. William Strong, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Independent Leather Workers' Union of Fulton County, herein called the Inde- 21 N. L. R. B., No. 125. 1258 SURPASS LEATHER COMPANY 1259 pendent, the National Labor Relations Board, herein called the Board, by the Regional Director for the Third Region (Buffalo, New York), issued its complaint dated May 12, 1938, against Surpass Leather Company, Gloversville, New York, herein called the re- spondent, alleging that the respondent had engaged in and was en- gaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. The complaint was duly served upon the respondent and the Independent. On June 3, 1938, the respondent filed its answer with the Board and filed a Bill of Complaint in the United States Dis- trict Court for the Western District of New York, seeking to restrain the Board from conducting a hearing in this proceeding. The Board appeared specially in the proceeding before the District Court and moved to dismiss the Bill of Complaint. Hearing was held before the District Court on June 6, 1938. On June 7, 1938, the Board, by the Regional Director, issued and duly served upon the respondent and the Independent an amended complaint and notice of hearing thereon. On June 13, 1938, the District Court issued its decision granting the Board's motion to dismiss the Bill of Complaint filed by the respondent., The amended complaint, as further amended at the hearing, alleges, in substance, that the respondent discouraged 'membership in the Independent, a labor organization of its employees, by (1) discharg- ing from its employ and refusing to reinstate Charles Herrick, Jr., and Charles Luft, for the reason that they had joined and assisted the Independent; (2) delaying the reinstatement of six employees z after a strike, which the Independent called as a result of the respond- ent's unfair labor practices, for the reason that they joined and assisted the Independent; (3) refusing to pay sick-leave benefits to Elizabeth Simonds, an employee, because she joined and assisted the Independent; and (4) discriminating in the distribution of work to certain of its employees 3 because they participated in the -strike; ' Surpass Leather Company v . Winters, 23 F. Supp. 776. 8 Frank Gargullo, James Martin , Felix Vavruick, Edward Hemstreet, Abraham Geweye,. and Harvey Wood. 8 Sidney Blake, Tom Barton, C. Bleyl, A. Briggs , J P. Burke, J. Cascalli, Peter Christian, E. Dillon, Aaron Davis , James Davis , Sam Dunlop , J. Dunlop, Jr, H. Dutcher, Sr, IT Dutcher, Jr., Herman Freese , William Fox, William Forgette , Clarence Forgette, Frank Garguilo , Helen Garguilo , A. Garwatoski, B. Garwatoski, F. Garwatoski , S Garwatoski, Z Garwatoski, A. Geweye, Paul Godrijan , Albert Hayes, Evelyn Hayes, F Ilayes, E Herrick, R . Herrick, E Hemstreet, Art Hitchman , Frances Hazard , Marguerite Hamilton, Russell Hamilton, Iola Howard, George Jewett , John Kapa , John Kodlic , Michael Kello, Steve Korczijnski , Mollie Lombardi , Lewis Luft , John Mazur , Ethel Martin, James Martin, Ernest Marchlevicz , Peter Mikus, John Madden , Frank Murphy, Charles Nimy, Mary Nyhan, Albert Ostrom, Edward Peek, Mike Renche , P Rizziello , Roy Rudd, Alfred Schrader, Charles Seth ader, Stella Snell , Adeline Schelhaas , Elizabeth Simonds, R Sww eeney , Joseph Spigelo, Walter Staszko, Arthur Stowell, Clarence Sutton, Mike Valsic, Clara Van Nort, M. Van Lone, F Vavruick, John Widanka , E. Wittfield , Harvey Wood , and B Zawlocki. 1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the respondent refused to bargain collectively with the Inde- pendent, although the latter had been designated as bargaining agent by a majority of the respondent's employees within an appropriate unit; and that by the foregoing acts and refusals, 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. Thereafter the respondent duly filed an amended answer in which it, in substance, (1) contested the Board's jurisdiction of the subject matter; (2) admitted the discharges of Herrick and Luft and the refusal to pay benefits to Simonds, but denied that these acts con- stituted unfair labor practices; (3) denied that it had discriminated in the distribution of work which its employees were hired to per- form-that is, work on skins; and (4) denied the other alleged unfair labor practices. The answer referred to an agreement between the respondent and the Independent settling a strike which took place in February 1938 as disposing of the certain issues in this proceeding. The respondent also filed with the Board a motion for particulars of the amended complaint. Pursuant to notice, a hearing was held at Johnstown, New York, from June 16 to 23, 1938, before William P. Webb, the Trial Ex- aminer duly designated by the Board. The Board, the respondent, and the Independent were represented by counsel and participated in the hearing. Full opportunity to be heard , to examine and cross- examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the opening of the hearing, the respond- ent renewed its motion for particulars of the amended complaint. The Trial Examiner denied the motion. During the hearing, several motions to dismiss certain allegations of the amended complaint were made by counsel for the respondent. The Trial Examiner re- served ruling, on these motions at the time of the hearing, and denied them in his Intermediate Report.4 Counsel for the respondent also moved for dismissal of this proceeding on the ground that the re- spondent,is not engaged ,,iii interstate commerce at its Gloversville plant. The Trial Examiner denied this motion. Counsel for the Board moved the dismissal of allegations in the amended complaint as to certain individuals 5 named in the complaint as having been discriminated against in the distribution. of work and moved to con- form the pleadings to the proofs adduced. The motions were granted. Numerous other motions and objections to the admission of evidence were' made and ruled upon at the hearing by the Trial Examiner. The Board has reviewed the rulings of the Trial Examiner and finds 4 These rulings are affirmed in so far as they are not inconsistent with the Findings of Fact, Conclusions of Law, and Order set forth below. e Peter Christian, C. Bleyl, William Forgette, Z Gaiwatoski, Evelyn Hayes, John Kapa, Clara Van Noit, E. Herrick. SURPASS LEATHER COMPANY 1261 that no prejudicial errors were committed. The rulings are hereby affirmed. On September 9, 1938, the Trial Examiner issued his Intermediate Report in which he found, in substance, that the respondent had engaged in and was engaging in unfair labor practices affecting com- merce, within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the Act. He recommended that the respondent cease and desist from the unfair labor practices found; reinstate with back pay Herrick and Luft ; make whole Simonds for sick benefits withheld from her; make whole employees against whom the Trial Examiner found the respondent had discriminated in the distribution of work; and, upon demand, bargain with the Independent. The Trial Ex- aminer further found that the respondent had not discriminatorily delayed the reinstatement of six employees named in the complaint and recommended that allegation of the complaint in that regard be dismissed. The respondent thereafter filed exceptions to the Intermediate Report. Both the respondent and the Independent waived the privilege of oral argument before the Board, and, in lieu thereof, filed briefs. On June 19, 1939, the respondent informed the Board that for economic reasons it had closed its Gloversville plant. The Board has fully considered the briefs of the Independent and the respondent, and the respondent's exceptions to the Intermediate Report and, in so far as the exceptions are inconsistent with the find- ings, 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 1. THE BUSINESS OF THE RESPONDENT e Surpass Leather Company is a Pennsylvania corporation duly licensed to do business in the State of New York. Its principal office is in Philadelphia, Pennsylvania, and it operates a manufacturing plant at Philadelphia and one at Gloversville, New York. The Gloversville plant, alone, is involved in this proceeding. The respondent is engaged in the manufacture, sale, and distribu- tion of kid and kangaroo leathers. The principal raw materials used at its Gloversville plant, herein called the plant, are skins, chemicals, dyestuffs, oils, acids, alkalis, and pigments. Ninety per cent of the raw materials used at the plant are obtained from sources outside the State of New York. This includes skins, which are obtained from 9 The findings of fact set forth in this section refer to the situation existing at the time of the heaiing. 1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD India, Australia, and China. All raw materials are purchased by the Philadelphia office and are shipped directly to the plant from their sources. All the finished products of the plant, which annually amount to approximately 100,000 dozen skins, valued at from $4.50 to $9.50 a dozen, are shipped to points outside the State of New York. In 1938 more than 200 persons were employed at the plant. II. THE ORGANIZATION INVOLVED Independent Leather Workers' Union of Fulton County is an unaffiliated labor organization, admitting to membership production employees of the respondent and of a number of tanneries in Fulton County, New York, excluding executives, foremen, assistant foremen, sorters of the finished leather, and maintenance and office employees. III. THE UNFAIR LABOR PRACTICES A. Background In August 1933 the Independent was organized by employees of 33 tanneries in Fulton County, New York, and in October 1933, after a general strike in which the respondent's employees also participated, most of the production employees in these tanneries became members of the Independent. The strike was settled by an agreement, sub- scribed to by all of the tanneries, which recognized the Independent as sole collective bargaining agent for their employees. The respond- ent, however, did not subscribe to this agreement or recognize the Independent. Between 1933 and 1935 the Independent secured very few nlem- hers among the employees at the respondent's plant. From 1934 the Independent, fearing discharges of its members by the respond- ent, organized the latter's employees in secret. In 1935 the re- spondent's glazers began a strike, but failed in their effort to make the strike general throughout the plant. Although the strike was soon settled, a number of the strikers were not reinstated by the respondent. In the summer of 1936 an open organizational campaign by the- Independent among the respondent's employees was followed by discharges by the respondent. B. The discharge of Charles Herrick, Jr. Charles Herrick, Jr., was discharged by the respondent on Oc- tober 6, 1937. He had been employed at the plant for 6 years, dur- ing the last 4 of which he was foreman of the raw-stock department. His duties as foreman included the receipt and sorting of raw stock, and its distribution to various departments. Herrick joined the In- SURPASS- LEATHER COMPANY 1263 dependent on September 11, 1937, but apparently ' was not a very -active member .7 Herrick testified that at monthly meetings of the supervisory per- sonnel officials of the respondent had warned the foremen that they 'and all other employees would be discharged if they joined a union. The supervisory officials who are alleged to have made such state- ments, and others present at the meetings, denied, at the hearing, -that they were ever made. We need not resolve this conflict in 'evidence.' The respondent contends that Herrick was discharged for failure to report that three bales of skins were wet upon receipt at the plant, and because his work, in general, was unsatisfactory. The `record discloses that Herrick failed to report the condition of the skins upon their arrival. Herrick admitted at the hearing that, for a period of about a year prior to his discharge, the respondent was dissatisfied with and had often complained regarding his work, and that he had been reprimanded for failing to dispose of waste in accordance with health regulations. The respondent avers that it was unaware of Herrick's member- ship in the Independent until the latter claimed that Herrick's dis- charge was in violation of the Act. Herrick testified that while he did not tell any of the respondent's supervisory officials of his union membership, it was generally known at the plant, and that a short time after joining the Independent he accidentally dropped his mem- bership card and it was seen by Skiff and Mattis, foremen. Both of these individuals denied, at the hearing, that they ever saw Her- rick's membership card. We credit their denials. The evidence is insufficient to support a finding that the respond- ent had knowledge of Herrick's membership in the Independent or to sustain the allegation that the respondent discharged Herrick be- -cause of such membership. The complaint as to Herrick will be ,dismissed. C. The discharge of Charles Luft Charles Luft, a machine operator in the buffing department of the plant," was discharged on February 1, 1938, after employment by the respondent for a total of 6 years.9 The respondent avers that Luft was discharged "for failure to obey the orders of his foreman and Superintendent ..." 7 The Independent does not admit foremen to membership , but Herrick , on applying for membership, did not indicate his pisition and was permitted to become a member 8 Buffing is the removal of surplus flesh from the inner side of skins by the use of sandpapering machines. e Luft testified that in 1936 he had been discharged because he questioned the advis- ability of a proposed "shop union," and that he was reemployed at the plant about 9 months later. 1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Luft joined the Independent in 1936 but shortly thereafter permit- ted his membership to lapse. However, he continued to act as spokes- man for the employees in his department in dealing with the respon- dent regarding grievances and other matters relating to wages, hours, .and conditions of employment. Luft rejoined the Independent in January 1938 and became very active in soliciting -members for the Independent among employees in the plant, distributing ,member- ship applications and a monthly newspaper published by the Inde- pendent, and acting as committeeman for the handling of grievances in his department. No employee of the respondent held higher office in the Independent at this time. Luft testified that during January 1938 his foreman, John King, destroyed copies of the news- paper which Luft brought into the plant for distribution, "as soon as I brought them in," and stated to him, referring to his Indepen- dent membership button, "you might as well take your union button off because it isn't going to do any good in there." King denied seeing any newspapers or applications in the possession of Luft or making the statement. He also denied that he ever saw Luft's Independent button. On the basis of the entire record, we credit Luft. Luft and five other employees in the buffing department were paid on a piece-work, minimum production basis. ,If more than & hours were consumed in completing a day's work, which consisted of buffing 100 dozen skins, they received no additional pay for the overtime. In the buffing process various grades of sandpaper are employed, ranging by number from 00 to 3, in ascending order of coarseness. A supply of all the grades of sandpaper was at all times available for use by the buffers. Some time prior to Luft's discharge, the respondent embarked upon certain experimental work in the treatment of skins. As a result of this new processing, a pigment formed on the skins, making it more difficult to remove the excess flesh, and requiring more 'frequent changes of the No. 1 sandpaper then most generally in use. This, in turn, resulted in. retarding the buffing process, making it very difficult if not virtually im- possible properly to buff the required number of skins within a hours. Luft testified that a few months prior to his discharge he had discussed with King, his foreman, the question of using sandpaper coarser than No. 1, and that the latter had stated it was immaterial to him what grade of paper was used, "as long as .the work was satisfactory and he wasn't getting the devil over it ... "; that the respondent's buffers are permitted to use any grade of sand- paper they deem necessary to secure a satisfactory finish on skins; that the thickness of skins and the amount of excess flesh and fat on SURPASS LEATHER COMPANY 1265 them varies; that in the past buffers often had exercised their dis- cretion, as to the grade of sandpaper used, without comment from any supervisor; that specific instructions as- to the particular grade had been given only as ' to ' very thin skins known as "paper shell" or "paper thin" skins, but that the respondent had not processed such skins for several months prior to February 1, 1938. Luft also testified that the former superintendent, George Beck, had told the buffers to use whatever grade of sandpaper they considered neces- sary to clean the skins properly. Beck did not testify. Another buffer testified that on one occasion, several months pre- vious to Luft's discharge, all the buffers, with Luft as spokesman, spoke to King regarding the use of No. 11/z sandpaper, and he stated that he "would see about it." King admitted making, in substance, the statement attributed to him by, Luft, but also testified that at a later date he told Luft and .all other "buffers thai Morris, general superintendent of the plant,, -wanted No. 1 paper used. King further testified that he had "never been told" that the buffers were exercising their own discretion as to grade of sandpaper. We find that the grade of sandpaper used depended upon the con- dition of the skins being processed and, with a possible exception in the case of paper-thin skins, was left to the discretion of the buffers. On February 1, 1938, the buffers, all of whom were working on the same kind of skins, found that as a result of its becoming gummed very rapidly and requiring frequent changes, the use of No. 1 sand- paper, then on the machines, would not permit them to produce the type of surface demanded by the respondent on 100 dozen skins within the $ hours for which they would be paid. The respondent had pre- viously,returned to the buffers, for reworking without pay, numerous skins claimed to have been improperly cleaned by them. Stockamore, one of the buffers, suggested to the others that they change to No. 11/2 sandpaper. Stockamore, and the three buffers working with him on one machine thereupon made the substitution. Shortly thereafter, Hayes and Charles Luft, working on another machine, also made the change. to No. 11/2 sandpaper. Later that day Foreman King carne into the department, inspected the skins which had been treated with No. 11/2 sandpaper, and said, in substance, "If you do work as good as this all the time why, there -will never be any complaint." The buffers thereupon told King that they. were using No. 11/2 paper. • King immediately left the room and informed, Morris of this fact. King also stated to Morris that he thought the skins "looked very good."' Morris testified that he asked King "Did Charles Luft change?" and King replied in the affirmative. 1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Morris immediately departed for the buffing department and, upon arriving, addressed himself to Luft, demanding to know what grade of sandpaper he was using, and "who told him to put it on." Luft, inquired whether there was anything wrong with the work, to which Morris replied, "it makes no difference," and again asked what grade of sandpaper Luft was using. Luft stated to Morris that all the buffers were using the No. 11/2 paper. Upon being informed: that it was No. 11/2, Morris discharged Luft. The five other buffers, four of whom were not then members of. the Independent, immediately protested what they considered to be-dis- criminatory treatment of Luft, telling Morris that Luft was not re- sponsible for the change of sandpaper, and that they also, and first,, had changed the sandpaper on their machines. They informed Mor-, ris that if he persisted in the discharge of Luft they would leave the plant with him. Morris was adamant, and the buffers left the plant. Although he knew that they also were using No. 11/2 sandpaper, Morris refrained from criticising the buffers because "I still had my, production to get out." He left "in the hands of King to censor [sic] them for making the change." After this incident, shortly prior to the hearing, Morris instructed the buffers to use No. 11/2 sandpaper on the same type of skins as were processed on February 1. Luft testified that at the time of his discharge he asked Morris why he was being discharged, to which Morris replied, "Well, you're an agitator anyway." The following day a conference was held between the buffers, Morris, Hutchinson, the assistant superintendent, and Buchborn, the general manager of the plant. One of the buffers pres- ent at this conference testified, on direct examination by the Board's counsel, and another testified on cross-examination by the respondent's counsel, that Buchborn stated that Luft was discharged because he was an agitator." Clarence H. Carr, president of the Independent, testified that at another conference, in February, Buchborn made a, similar statement. Dutcher, Sr., an employee and Independent of- ficer, testified, upon cross-examination by the respondent's counsel, that he did not on any occasion hear the term used with reference to Luft by a representative of the respondent. At the hearing Buch- born and Morris denied ever having made such statements. We be- lieve that both Morris and Buchborn made the statements attributed to them. Upon the entire record we reject the respondent's assertion that it discharged Luft for failure to obey orders. We are not convinced of the existence of a company rule requiring the use of No. 1 sandpaper in buffing. Assuming, however, that there was such a rule the record is clear that it was applied in a discriminatory manner against Luft. SURPASS LEATHER COMPANY 1267 It further appears, from King's enthusiasm for the results obtained by using,No. 11/2 paper and from the fact that Morris later instructed the buffers to use paper of that grade on skins similar to those which were being processed on February 1, that no great loss can have been entailed- by the action of the buffers in changing the paper. It is uncontradicted, moreover, that when Morris discharged Luft the buffers informed hint, as was the fact, that they had all changed paper and that Luft was not responsible for the change. Thus,, even if Morris had erroneously believed Luft to be responsible, his misap- prehension was immediately corrected when he faced Luft and the other buffers. Under the circumstances we find that Morris' insistence on singling out Luft for discharge was motivated by resentment against Luft be- cause of his activities on behalf of his fellow employees and of the Independent. Subsequent references to Luft by Morris and Buchborn as an "agitator" confirm us in our finding. We find that on February 1, 1938, the respondent discharged Luft because he joined and assisted the Independent, that it thereby dis- criminated in regard to his hire and tenure of employment, discouraged membership in the Independent, and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Prior to his discharge,.Luft was earning $30.10 a week on a 40-hour week basis, averaging between $18 and $25 a week. At the time of the hearing, he had not secured employment elsewhere. D. The strike Upon leaving the plant, on February 1, 1938, the buffers proceeded to the office of the Independent where they reported the entire matter to Carr, who instructed them to return to work, stating that he would endeavor to adjust the matter with the respondent. On the following morning the buffers returned to the plant and again requested that Luft be reinstated. This was again refused by the respondent, who, in addition, also discharged Luft's brother Lewis.1° The buffers again left the plant. On February 2, 1938, the Independent requested the respondent to reinstate Luft. The respondent refused. On February 4, in accord= ante with the respondent's demand contained in registered letters sent to all the buffers but Charles Luft, that they return or forfeit their jobs, all the buffers except Luft, acting upon the suggestion of Carr, returned to work. 15 The complaint does not allege that the discharge of Lewis Luft was in violation of the Act The record is not clear as to the reasons for this discharge Lewis returned to work on Februaiy 6, 1938. 1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On February 6, 1938, the Independent held a special meeting, called specifically to discuss the question of what position the Independent "should take on the discharge of Mr. Luft for union activities," at which- it was voted to call a strike at the respondent's plant.. It is' clear and we find that the strike was called by the Independent in pro- test against the respondent's unfair labor practices in discharging Luft. On the following day many of the respondent's production employees, whose number subsequently increased, joined the strike. Numerous strikers, who were not. then members of the Independent became -its- members during the strike. The plant remained open in "skeleton operation." During the strike, the respondent and the Independent engaged in negotiations toward settlement. They were assisted by a repre- sentative of the Labor Department of the State of New York, while a representative of the Regional Director's office was present at some of the- conferences. The strike was finally concluded on February 26, 1938', on the basis of an agreement between the respondent and the Independent which provided, inter alia, that : (1) a consent elec- tion, to determine whether or not the respondent's employees desired to be represented by the Independent as their sole collective bar- gaining agent, be held at the plant on March 10, 1938, under the supervision of the Regional Director for the Third Region; (2) the production and maintenance employees of the respondent, exclud- ing executives, foremen, assistant foremen, sorters of the finished leather, and office workers, whose names appear on the respondent's February 4, 1938, pay roll should be eligible to participate; (3) the respondent and the Independent agree to abide by all rulings of the Regional Director in respect to the election; (4) the respondent would distribute equally among its employees work on skins; and, (5) the respondent would not interfere, by coercion or persuasion, directly or through its agents or foremen, with its, employees in their -free choice in the election. In a separate letter,.also dated February 26, 1938, the Independent agreed to terminate the strike, to withdraw all charges filed against the respondent, and file no further charges with respect to any mat- ters occurring on or before that date, except ast to the discharge of Charles Luft. Prior to the termination of the strike, between 40 and 5G strikers had returned to work. E. Interference, restraint, and coercion during the strike During the strike the respondent engaged in various activities calculated to influence its employees to relinquish their membership in the Independent and in other ways to interfere with, restrain;. and coerce them in the exercise of the rights guaranteed by the Act. SURPASS LEATHER COMPANY 1269 On February 8, 1938, H. G. Hegeler, assistant to the president of the respondent, addressed the female employees in the plant, apparently at the request of several employees. Stelle Snell, an em- ployee of the respondent for 5 years, testified that Hegeler stated that he would never agree to a "union" or "closed shop" and that as long as the employees remained at the plant and did not go out on strike there would be some work to do, and that they would re- ceive their pay even if they did nothing more than sweep floors or merely sit on chairs. Hegeler and other officials of the respondent admitted that he made the "closed shop" statement, but denied the balance as related by Snell. In view of the fact that, as will be shown, the respondent actually paid employees who came to the plant for a greater number of hours than they actually worked, we believe Snell. Joseph Lombardi, employed by the respondent for 5 years, joined the strike on February 8, 1938. Lombardi testified that (1) while he was on the picket line during the strike he was approached by Pete Penchell, a foreman, who requested him to return to work, saying that the strike of the Independent would not succeed; (2) on February 12 Carl Spiess, another foreman, suggested to Lombardi that he return to work the following day, a Sunday, saying that Lambardi would be paid anyway, and that there were many persons "earning pretty good money now, without working so much, and besides, if you come back right away, you might have a chance to get a better job"; whereupon Lombardi replied that the Independent would win the strike, and Spiess retorted that the respondent would close the plant rather than permit victory by the Independent; (3) a few days later he was again requested by Penchell and by John Mattis, foreman, to return to work at the plant, the latter stating that the respondent was a large firm having much money and would not permit the Independent to succeed at the plant. Mattis testified on behalf of the respondent, but did not deny Lombardi's statements. Penchell and Spiess were not called upon to testify by the respondent. We credit Lombardi's testimony. Lombardi returned to the plant on February 18, prior to the termi- nation of the strike. He testified that in discussing the possible return to work of his wife, Mattis stated in substance that he did not know how "the office" would regard permitting her return since "she was too active in the strike." Mattis testified at the hearing, but said nothing respecting this incident. We credit Lombardi. Although Lombardi, upon his return, worked only 5 hours each day, he was paid for 8 hours' work. Other employees testified that during the strike they also were paid for more hours than they actually worked. Hazel Sheldon, testifying that she received such 2830: t 2-41-vol 21-81 1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD additional compensation both during the strike and for a, few days after it ended, stated that she believed it was paid because "the management was grateful for us coming in when the strike was on, coming through picket lines ..." On February 21 the respondent resumed the preparation of skins for further production work. Two days later this process was again interrupted. Lombardi testified that he and other employees asked Penchell the reason for the interruption, and that Penchell replied that a vote was to be taken among the employees to determine whether they wanted to be represented by the Independent, and, if the Independent won, there would not be any more work. As we have stated, Penchell did not testify. Lombardi further testified that on February 23 Howard King, a foreman, stated that the selection of the Independent in a consent election would result in the cessation of work. King denied that he made statements of this kind, con- tending that "I never mentioned the election outside of the fact we were having an election." He testified that on February 23 he could not have known of the consent election agreement, which was not signed until February 26, but admitted that on February 23 he had read in the newspapers of the probability of the holding of such an election. We find that King as well as Penchell made the statements attributed to them by Lombardi. Shortly prior to the execution of the consent election agreement of February 26 Buchborn, without securing consent of the Independent, released copies of the contract draft to the local newspapers, which issued bulletins and press releases stating that the strike was thereby settled. We believe that the respondent's release of the terms of the proposed contract was an attempt to influence employees to return to work by misleading them into believing that their union repre- sentatives had reached an agreement with the respondent ending the strike. Between February 26, the date of the conclusion of the strike, and March 10, the date of the consent election, as will be shown, and for several days thereafter, the respondent engaged in unfair labor practices in violation not only of the Act, but also of an express provision of the consent election agreement of February 26. Under the circumstances, we are of the opinion that the undertaking of the Independent, referred to above, to refrain from filing charges with respect to matters occurring before February 26 should not deter us from a determination of the issues of alleged unfair labor practices prior to that date.11 "See Matter of Ingrain Manufacturing Company and Textile TVoikeis Organizing Corn- mittec, 5 N. L. It. B. 908 Matter of Chicago Casket Company and Casket Makers Union, No 10306, Affiliated with the Ante,ican Fede,ation of Laboi, 21 N L R B 235. SURPASS LEATHER COMPANY 1271 We accordingly find that the respondent, through its officials and supervisory employees, by urging individual employees to return to work during the strike and by stating that the Independent would never be permitted to succeed at the plant, and that there would be no work if the Independent won the consent election, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. F. Discriminatory distribution of work after the strike; the consent election During the strike, on about February 13, 1938, the respondent began the performance of certain maintenance work in the plant, which was completed on or about March 18, 1938. Between February 28 and March 10, 1938, the period between the settlement of the strike and the consent election, the volume of this maintenance work was high while production work on skins remained below normal. Both male a,nd female employees were assigned this work, although no female- employee had ever before engaged in such work for the respondent. During the period in question the respondent specifically instructed its foremen to distribute the work on skins equally among the em- ployees. This was done. It gave no similar instructions, however, with respect to the maintenance work then in progress. Distribution, of the maintenance work was, in fact, limited to employees who had refrained from striking or who had returned to work prior to the end of the strike. None was asssigned to strikers who had stayed out until the strike was over. Approximately 1500 hours of maintenance work was thus discriminately assigned to the exclusion of 68 strikers 12 who had remained loyal to the Independent. The respondent assigned no reason for its failure to share the maintenance work among all the employees, contenting itself with the assertion-that the agreement of February 26 called for equal distri- bution'oof -work on skins only, and made no mention of maintenance work. 12 Sidney Blake , Tom Barton , A. Briggs, J. P Burke , J Cascalli, E Dillon , Aaron Davis, James Davis , Sam Dunlop, J Dunlop , Jr, H Dutcher, Sr, H Dutcher , Jr, Herman Freese, William Fox, Clarence Forgette, Frank Garguilo , Helen Garguilo , A Garwatoski, B Garwatoski, F. Garwatoski , S. Garwatoski, A. Geweye , Paul Godrijan , Albert Hayes, F. Hayes, R Herrick, E Hemstreet , Art Hitchman, Frances Hazard , Marguerite Hamilton, Russell Hamilton , Iola Howard , George Jewett, John Kodlic , Michael Kello, Steve Korczijnski , Mollie Lobardi , Lewis Luft, John Mazur, Ethel Martin, James Martin , Ernest Marchlevicz , Peter Mikus , John Madden , Frank Murphy , Charles Nimv , Mary Nyhan. Albert Ostrom , Edward Peek, P. Rizziello, Roy Rudd, Alfred Schrader, Charles Schrader, Stella Snell , Adeline Schelhaas , R Sweeney , Joseph Spigelo , Walter Staszko , Arthur Stowell , Clarence Sutton, Mike Valsic, M. Van Lone, F Vavruick , John Widanka, E. Wittfleld , and B Zawlocki . Mike Renche received a small amount of maintenance work on February 28, 1938. We find that he, too, was discriminated against Elizabeth Simonds was ill during the strike and did not return to work until March 7, 1938. She- received no maintenance work between March 7 and 18. We believe that the respondent's failure to give her maintenance work was also discriminatory (See Sec . H, infra) 1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We are of the opinion and we find that from February 28 to March 10, 1938, the respondent withheld maintenance work from employees who had remained loyal to the Independent, at the same time distrib- uting such work among employees who had refrained from striking or had abandoned the strike prior to its conclusion, for the purpose of influencing the result of the election held on March 10, 1938, ad- versely to the Independent, and that it thereby and by its continued discrimination until March 18, 1938, when the maintenance work ended, discriminated in regard to the hire and tenure of its employees, discouraged membership in the Independent, and interfered with, restrained, and coerced its employees in the exercise of the rights guar- anteed in Section 7 of the Act. The election was held as scheduled on March 10, and the Inde- pendent lost. In view of the respondent's unfair labor practices in the period immediately preceding the election, the results of the election cannot be deemed to reflect the free choice of the respond- .ent's employees. We shall accordingly disregard them.13 G. The alleged refusal to bargain collectively 14 (1) The appropriate unit At the hearing the Independent contended that an appropriate unit consists of production workers of the respondent. However, in the consent election agreement with the respondent, dated February 26, 1938, the Independent had agreed, and in the charge filed with the Board repeated, that an appropriate unit consists of production and maintenance employees of the respondent. The amended com- plaint alleges that the production and maintenance employees of the respondent, exclusive of executives, foremen, assistant foremen, sort- ers of the finished leather, and office workers constitute an appro- priate unit. The respondent in its answer states that it had agreed to this unit with reference to the consent election of March 10. Under the circumstances of this case, we find that the production and 13 See Matter of Carrollton Metal Products Company and Amalgamated Association of Iron, Steel it Tin Workers of North America, Local No 1511, 4 N. L. R. B. 142 and 6 N L. R B 569; and Matter of Industrial Rayon Corporation, a Delaware Corporation and Textile Workers Organizing Committee, 7 N. L R B 878 14 Both prior to the strike and during the strike at the conferences between the Inde- pendent and the respondent the Independent made numerous requests that it be recognized as the sole collective bargaining agent of the respondent 's employees This the respondent refused to do. On February 26, 1938, prior to signing the agreement of that date, the Independent filed with the Regional Director for the Third Region a petition for investi- gation and certification of representatives pursuant to Section 9 (c) of the Act On April 27, 1938 , the Independent wrote to the Board, requesting permission to withdraw the petition because the respondent's acts, which we have already in part discussed above, precluded the possibility of free exercise by employees of their right to select a collective bargaining representative.' Oh May 14, 1935 the Board issued its Order permitting withdrawal of the petition - SURPASS LEATHER COMPANY 1273 maintenance employees of the respondent, excluding executives, fore- men, assistant foremen, sorters of the finished leather, and office workers, constituted a unit appropriate for the purposes of collective bargaining under the Act. (2) Alleged representation by the Independent of a majority in the appropriate unit The complaint alleges that on or about February 8, 1938, and thereafter, the Independent was the collective bargaining representa- tive of a majority of the respondent's production and maintenance employees, and that on or about February 10, 1938, and thereafter, the respondent failed to bargain with the Independent as it was required to do under the Act. The record discloses that from Feb- ruary 4 to March 30, 1938, the respondent employed at the plant 168 production and 15 maintenance employees, making a total of 183 persons within the unit we have found to be appropriate. The Independent, in support of its claim that it had been desig- nated collective bargaining agent by a majority of the respondent's employees within the appropriate unit, introduced in evidence 100 membership and application cards, on which, it claimed, employees of the respondent had signed or printed their names. These cards were identified at the hearing by the secretary of the Independent as having been taken from among the records of the Independent. The respondent objected to the use of these cards for the purpose of determining whether the Independent has been designated by a majority, pointing to the fact that the consent election of March 10 was held subsequent to the dates appearing on the cards, and that the Independent had lost the election. As we have stated, however, the election results do not reflect the employees' free choice and must be disregarded. Of the 100 cards produced by the Independent, 76 were signed between January 8 and February 10, 1938, inclusive, and 2 cards were signed thereafter. Two cards, dated in 1938, are unsigned. Seven- teen cards were dated between 1933 and the early part of 1937, and three show no year at all. Carr testified as to the individuals whose cards are in evidence that he "could not say whether they are in good standing or not, but they are bona-fide members". In the absence of further proof of desires concerning representa- tion of the employees whose cards are in evidence, only signed cards dated within a reasonable time prior to the dates on which the In- dependent alleges the respondent refused to bargain with it, can be accepted by us as evidence of designation of the Independent by such employees. Such cards, if accepted in toto, number 78, which 1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is less than the required majority.15 Eight of the employees whose cards bear the dates 1933 and 1934 participated in the strike. Since the addition of their cards to the 78 accepted by us would, not produce a majority for the Independent, we need. not decide whether their participation in the strike constituted redesignation of the Inde- pendent. The evidence in the record is insufficient to sustain the allegation that the Independent on and after February 10, 1938, had been designated by a majority of the employees in that appropriate unit. We find, therefore, that on the date set forth in the complaint, the Independent was not the duly designated representative of the ma- jority of the respondent's employees within the unit we have found to be appropriate. We shall accordingly dismiss the complaint in so far as it alleges that the respondent engaged in unfair labor prac- tices within the meaning of Section ,8 (5) of the Act. H. The discriminatory application of the sick-benefit plan The respondent maintains a "sick and death benefit plan", herein called the plan, for its employees. All funds necessary for the opera- tion of the plan are provided by the respondent and it retains full control of the distribution of benefits. The plan provides, in part, that "employees conducting themselves in a way to retard recovery of health shall forfeit all benefits from disability so effected". Elizabeth Simonds, an employee in the seasoning department of the plant, became ill with the grippe in January 1938. Under the plan she was entitled to receive the sum of $9.36 a week, which was one-half of her average weekly wage, during the period of disability. Simonds returned to work on March 7, 1938. On February 10, 1938, 3 days after inception of the strike, Simonds, having recovered sufficiently to leave her home, but not sufficiently to resume work, brought to the respondent's office a doctor's certifi- cate stating that she was convalescing and still unable to work, and requested the sick-benefit sum payable on that date. Simonds was still suffering from certain after-effects of grippe and tonsillitis. She was informed that her check was not ready. Prior to returning home Simonds crossed "to the other side of the street and stood in the sunshine" and spoke to employees who were picketing. Simonds testified that she did not return to work during the strike because she was "out sick." At this time Simonds 16 More than 20 of the employees who signed application cards testified that they were coerced into signing the cards and did not want to he represented by the Independent, that they did not sign the cards in evidence bearing their names In view of the fact that the Independent does not have a majority on the basis crediting to it all cards signed within the specified period, we need not evaluate this testimony SURPASS LEATHER COMPANY 1275 was not a member of the Independent, joining it very shortly there- after. On the following day Simonds returned for her payment, and, she testified, the respondent's nurse informed her that she would not receive the payment, for the reason that she had been seen on the picket line. Buchborn testified that he had refused to pay Simonds her sick benefit because he had seen her standing on the street during cold weather, while still suffering from the after-effects of her illness, thereby retarding her own recovery.16 The Trial Examiner found that Simonds' sick benefit was refused her by the respondent because she stopped on the picket line and the respondent concluded that she was in sympathy with the strikers. On the entire record we agree with the Trial Examiner's finding. We find that the respondent refused to pay to Elizabeth Simonds the sick benefits payable to her between February 9 and March 3, 1938, under the plan, because it believed that Simonds was assisting the Independent and engaging with other employees in concerted activi- ties and that it thereby discriminated in regard to the terms and conditions of Simonds' employment, discouraged membership in the Independent, and interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. 1. The alleged discrimninatory delay in reinstatement The amended complaint alleges that the respondent discriminated against Frank Garguilo, James Martin, Felix Vavruick, Edward Hemstreet, Abraham Geweye, and Harvey Wood, by refusing to reinstate them to their jobs as rapidly as it was possible after the strike- and by delaying their reinstatement. The Trial Examiner, in his Intermediate Report, recommended the dismissal of the com- plaint as to these individuals. None of the parties herein filed excep- tions to this recommendation. An examination of the record convinces us that by failing to reemploy these individuals prior to the dates on which they finally were reemployed, the respondent did not discriminate against them. leAt the hearing several certificates signed by Simonds' attending physician were introduced in evidence . These certificates show that Simonds was first able to resume her usual duties on March 3, 1938 The physician was unable to testify and one of the re- spondent's counsel spoke with him during the hearing and then testified that the physician informed him that he did not see Simonds personally on February 10 and issued his certificate on the basis of information received from her relatives, and, further, that if Simonds remained on the street on February 10 and 11, it would have had a tendency to retard her recovery. Since Buchborn did not have the benefit of this medical informa- tion on February 10 and 11, he could not have been motivated by it in refusing to give Simonds the sick-benefit payment 1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We shall dismiss the complaint in so far as it alleges that the re- spondent discriminatorily delayed in reinstating Garguilo, Martin, Vavruick, Hemstreet, Geweye, and Wood. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III C, E, F, and H, above, occurring in connection with the opera- tions 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 burden- ing and obstructing commerce and the free flow of commerce. V. THE REMEDY We have found that the respondent engaged in certain unfair labor practices. Our order will require the respondent to cease and desist from such practices. Having found that the respondent discharged Charles Luft because of his membership and activity in the Inde- pendent, we shall order the respondent to place Luft's name on a preferential reemployment list and offer to reinstate him to his former position, without prejudice to his seniority and other rights and privileges, if and when the respondent resumes operations at Gloversville, New York. We shall also order the respondent to make Luft whole for any loss of pay he may have suffered by reason of his discharge, by payment to him of a sum equal to the amount he normally would have earned as wages from the date of his discharge to the date of the closing of the plant, less his net earnings 17 during that period. Having found that the respondent refused to pay Simonds certain sick-benefit payments because it believed she assisted the Independent and participated in concerted activities of the respondent's employees, we shall direct the respondent to make Simonds whole for the monetary loss she suffered by reason of such refusal, by payment to her of the sum she normally would have received in sick-benefit pay- ments from the respondent for the period of from February 9 to March 3, 1938. 17By "net earnings" is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working elsewhere than for the respondent , which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N L R. B. 440 Monies received for work performed upon Federal , State, county, municipal , or other work- relief projects are not considered as earnings , but as provided below in the Order, shall be deducted from the sum due the employee , and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal, State, county , municipal , or other gov- ernment or governments which supplied the funds for said work-relief projects SURPASS LEATHER COMPANY 1277 We have also found that the respondent, by withholding from certain employees their proportionate share of maintenance work, discriminated against them because of their union membership, affilia- tion, and concerted activity, and did so for the purpose of influencing and coercing all of its employees with respect to their participation in a consent election. We shall require the respondent to pay to those employees against whom it discriminated in the distribution of main- tenance work, a sum equivalent to that which each would have received had the respondent distributed such maintenance work among all its employees without discrimination. 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) Independent Leather Workers' Union of Fulton County 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 Charles Luft, and the terms and conditions of employment of Elizabeth Simonds, Sidney Blake, Tom Barton, A. Briggs, J. P. Burke, J. Cascalli, E. Dillon, Aaron Davis, James Davis, Sam Dun- lop, J. Dunlop, Jr., H. Dutcher, Sr., H. Dutcher, Jr., Herman Freese, William Fox, Clarence Forgette, Frank Garguilo, Helen Garguilo, A. Garwatoski, B. Garwatoski, F. Garwatoski, S. Garwatoski, A. Ge- weye, Paul Godrijan, Albert Hayes, F. Hayes, R. Herrick, E. Hem- street, Art Hitchman, Frances Hazard, Marguerite Hamilton, Russell Hamilton, Iola Howard, George Jewett, John Kodlic, Michael Kello, Steve Korczijnski, Mollie Lombardi, Lewis Luft, John Mazur, Ethel Martin, James Martin, Ernest Marchlevicz, Peter Mikus, John Mad- den, Frank Murphy, Charles Nimy, Mary Nyhan, Albert Ostrom, Edward Peek. Mike Renche, P. Rizziello, Roy Rudd, Alfred Schrader, Charles Schrader, Stella Snell, Adeline Schelhaas, R. Sweeney, Joseph Spigelo, Walter Staszko, Arthur Stowell, Clarence Sutton, Mike Val- sic, M. Van Lone, F. Vavruick, John Widanka, E. Wittfield, and B. Zawlocki, thereby discouraging membership in the Independent Leather Workers' Union of Fulton County, the respondent has en- gaged in and is engaging in unfair labor practices within the mean- ing of Section 8 (3) of the Act. (3) By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. (4) The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7^ of the Act. 1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (5) The respondent has not engaged in unfair labor practices with- in the meaning of Section 8 (5) of the Act. (6) The respondent has not engaged in unfair labor practices within the meaning of Section 8 (3) of the Act with respect to Charles Herrick, Jr. (7) The respondent has not engaged in unfair labor practices within the meaning of Section 8 (3) of the Act with respect to the reinstatement of Frank Garguilo, James Martin, Felix Vavruick, Ed- ward Hemstreet, Abraham Geweye, and Harvey Wood. ORDER Upon the basis of the above findings of fact and conclusions of law and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Surpass Leather Company and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Independent Leather Workers' Union of Fulton County or any other labor organization of its em- ployees by discharging or refusing to reinstate any of its employees, or in any other manner discriminating in regard to hire or tenure of employment, or any term or condition of employment; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities, for the purposes of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Place Charles Luft on a preferential employment list and offer to him full reinstatement to his former position without prejudice to his seniority or other rights and privileges, upon resumption of operations in Gloversville, New York; (b) Make whole Charles Luft for any loss of pay he has suffered by reason of his discharge by payment to him of a sum of money equal to that which he normally would have earned as wages during the period from the date of such discharge to the date upon which the respondent closed the plant, less his net earnings during that period ; deducting, however, from the amount otherwise due him monies earned by him during that period for work performed upon Federal, State, county, municipal, or other work-relief projects, and SURPASS LEALHER COMPANY 1279 pay over the amount so deducted 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; (c) Make whole Elizabeth Simonds for the loss of money she suffered by reason of denial to her sick-benefit payments between February 9 and March 3, 1938, by payment to her of a sum of money which she normally would have received in sick benefits; (d) Make whole Sidney Blake, Tom Barton, A. Briggs, J. P. Burke, J. Cascalli, E. Dillon, Aaron Davis, James Davis, Sam Dunlop, J. Dunlop, Jr., H. Dutcher, Sr., H. Dutcher, Jr., Herman Freese, William Fox, Clarence Forgette, Frank, Garguilo, Helen Garguilo, A. Garwatoski, B. Garwatoski, F. Garwatoski, S. Gar- wotski, A. Geweye, Paul Godrijan, Albert Hayes, F. Hayes, R. Her- rick, E. Hemstreet, Art Hitchman, Frances Hazard, Marguerite Hamilton, Russell Hamilton, Iola Howard, George Jewett, John Kodlic, Michael Kello, Steve Korezijnski, Mollie Lombardi, Lewis Luft, John Mazur, Ethel Martin, James Martin, Ernest Marchlenicz, Peter Mikus, John Madden, Frank Murphy, Charles Nimy, Mary Nyhan, Albert Ostrom, Edward Peek, Mike Renche, P. Rizziello, Roy Rudd, Alfred Schrader, Charles Schrader, Stella Snell, Adeline Schelhaas, Elizabeth Simonds, R. Sweeney, Joseph Spigelo, Walter Staszko, Arthur Stowell, Clarence Sutton, Mike Valsic, M. Van Lone, F. Vavruick, John Widanka, E. Wittfield, and B. Zawlocki, and each of them, for any loss of pay each has suffered by reason of respondent's refusal to assign to him a proportionate share of the maintenance work performed between February 26 and March 18, 1938, by payment to each of them of a sum of money equal to the amount which each would have earned had the respondent distributed maintenance work between February 26 and March 18, 1938, inclusive, among all its employees without discrimination; (e) Upon resumption of operations in Gloversville, New York, post in conspicuous places within its plant, and maintain for a period of at least sixty (60) consecutive days notices to its employees stating that respondent will cease and desist in the manner aforesaid and will take or has taken the affirmative action 'described in paragraphs 2 (a), (b), and (c) of this Order; and stating that the respondent's employees are free to become or remain members of the Independent Leather Workers' Union of Fulton County and that the respondent will not discriminate against any employee because of membership or activity in that organization; (f) Notify the Regional Director for the Third Region in writing within ten (10) days from the date of this Order what steps the respondent has taken and will take to comply herewith. 1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD AND rr IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed in so far as it alleges that the respondent has engaged in unfair labor practices within the meaning of Section 8 (5) of the National Labor Relations Act; and in so far as it alleges that the respondent discriminated against Charles Herrick, Jr., by discharging him, or against Frank Garguilo, James Martin, Felix Vavruick, Edward Hemstreet, Abraham Geweye, and Harvey 'Wood with respect to their reinstatement.