Burk Brothers

In the Matter of BIIRK BROTHERS and LOCAL #30, NATIONAL LEATHER WORKERS' ASSOCIATION Case No. C-1210.-Decided March 27, 1940 Leather Manufacturing Industry-Iaterfcrence, Restraint, and Coercion: anti- union statemgnts ; interference with organizational activities of employees ; expressed opposition to labor organization, threat of retaliatory action ; dis- crediting union-Discrimination: allegations of discharge and refusal to rein- state four employees because of their union membership and activity, sus- tamed-Reinstatement Ordered: of two employees not already reinstated by employer-Back Pay: awarded ; as to two employees from date of discharge to date of reinstatement already effected by employer; as to one employee from date of discharge to date of Intermediate Report and from date of Order to date of offer of reinstatement; as to one employee, from date of discharge to date of Intermediate Report and from date thereafter on which position in- glazing department became available, or from date of Order whichever is the earlier, to date of offer of reinstatement. Mr. Geoffrey J. Cwnni ff, for the Board. Mr. Walter T. Fahy, of Philadelphia , Pa., for the respondent. Mr. William F. Reagan, of Peabody, Mass., for the Union. Mr. Frederick W. Killian, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon- charges and amended charges duly filed by Local #30, National Leather Workers' Association, herein called the Union, the -National Labor Relations Board, herein called the Board, by the Regional Director for the Fourth Region (Philadelphia, Pennsyl- vania), issued its complaint, dated May 28, 1938, against Burk Brothers, Philadelphia, Pennsylvania, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act.: Copies of the complaint, accompanied by notice of hearing, were duly served upon the. respondent and the Union. 21 N. L R. B.. No. 126. 1281 1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In so far as is here material, the complaint, in addition to juris- dictional allegations, alleged that the respondent (1) had discrim- inatorily terminated the employment of Joseph Zalot, Kosta Kula, Charles Majerick and Frank Majerick and thereafter refused to reinstate them because they joined and assisted the Union and en- gaged in concerted activities for the purpose of collective bargaining and other mutual aid and protection, thereby discouraging mem- bership in the Union; and (2) by the foregoing and other acts had interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The respondent filed an answer dated Time 6, 1938, in which it admitted the allegations of the complaint concerning the nature of its business, denied that it had engaged in the alleged unfair labor prac- tices, admitted that it had terminated the employment of Zalot and Charles Majerick and thereafter refused to reinstate them, and as- serted that Kula and Frank Majerick were not discharged, but were laid off in order of seniority due to curtailment of production and were told that they would be sent for with any increase in production. On June 30, 1938, the Regional Director issued a notice postponing iintil further notice the hearing originally scheduled for July 7, 1938. Pursuant to notice of hearing dated December 10, 1938, which was duly served upon the respondent and the Union, a hearing was held at Philadelphia, Pennsylvania, on January 5 and 6, 1939, before Peter F. Ward, the Trial Examiner duly designated by the Board. The Board and the respondent were represented by counsel and partici- pated in the hearing. The Union appeared by counsel and was represented throughout the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bear- ing on the issues was afforded all parties. During the course of the hearing the Trial Examiner made various rulings on motions and on objections to the admission of evidence. The Board has reviewed these rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. The record shows that shortly before.the hearing, on December 8, 1938, the respondent reinstated Kula and Zalot without back pay, and offered to reinstate Frank Majerick to a job requiring less skill and at a lower rate of pay than his former position. Majerick did not accept the offer, and was not reinstated. The respondent contended at the hearing that the Regional Director and the Union agreed that if the respondent would offer Kula, Zalot, and Frank Majerick rein- statement to any positions in the plant, without back pay, the entire proceeding would be dismissed. We find no merit in this contention. It is true that ordinarily the Board will not interfere with a settle- BURK BROTHERS 1283 anent or agreement between an employer and a union which effectuates the policies of the Act, particularly if the agreement is concluded with the safeguard of the presence of a governmental representative.' Here, however, the evidence shows that, although there were negotia- tions between the respondent, the Union, and the Regional Director with a view to a disposition of the issues involved in the proceeding, neither the Union nor the Regional Director agreed to accept the action taken by the respondent as set forth above as a settlement of the case. On December 2, 1938, prior to the reinstatement of the two men in question, the Regional Director wrote a letter to the respondent stating in effect that the Union would not agree to withdraw its charges "unless reinstatement with back pay is offered to all the four men involved," and that "it will now be necessary to arrange for a hearing." In addition, at the same time that Zalot and Kula were reinstated on December 8, 1938, the respondent received a letter from the Union stating that, by returning to work, Kula and Zalot "do not, under any circumstances, waive any rights or benefits which they may receive through the Wagner Act." In view of these facts, we find that the offer of reinstatement to three of the four employees involved herein under the terms presented to them by the respondent was not deemed by the parties herein to constitute a final settlement of the case, and consequently cannot be treated as such by the Board. On March 3. 1939, the Trial Examiner issued his Intermediate Report, copies of which were duly served upon all parties, in which he found that the respondent by discharging and refusing to employ Kula and Zalot for a specified period, after which they were re- instated, and by interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, had engaged in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act, and that by discharging and refusing to em- ploy Charles Majerick and by laying off Frank Majerick the respondent had not engaged in unfair labor practices within the meaning of the Act. He recommended that the respondent cease and desist from its unfair labor practices, make whole Kula and Zalot for any loss of pay they may have suffered by reason of the respondent's discrimination against them from the date of their discharge to the date of their reinstatement by the respondent, and place Frank Majerick upon a preferred list to be offered employ- ment in the glazing department of the respondent's plant, whenever ' See Matter of Shenandoah-Dives Min,ng Company and International Union of Mine, Mall and Smelter Workers, Local No 26,, 11 N L R B 885; and Matter of Ingram Manufacturing Company and Textile Workers Organizing Committee, 5 N L R B 908 1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a vacancy occurred or additional glazers were employed. He further recommended that the complaint be dismissed as to Charles Majerick and Frank Majerick. Exceptions to the Intermediate Report were filed by the respond- ent on March 13, 1939, and by the Union on March 18, 1939. The respondent and the Union filed briefs which the Board has considered. On April 28, 1939, the Union filed a "Motion to Reopen the Record and Receive Further Evidence," and requested opportunity for oral argument on said motion. On May 24, 1939, the Board denied the motion and the request for oral argument on the motion. On October 24, 1939, a hearing was held before the Board in Washington, D. C., for the purpose of oral argument on exceptions to the Intermediate Report and the record. The respondent and the Union were represented by counsel and participated in the oral argument. - The Board has considered all the exceptions to the Intermediate Report and hereby overrules the respondent's ex- ceptions and sustains the Union's exceptions. On January 26, 1939, the respondent sent to the Trial Examiner certain sworn copies of its pay rolls of June 24, August 5, October 7, December 9, 1937, and January 27, 1938. The Trial Examiner "re- ceived and considered" these pay roils. The respondent in its letter sending the pay rolls to the Trial Examiner stated that copies thereof were being sent to attorney for the Board and to the attorney for Local #30. We hereby direct the filing herein instanter of said pay rolls as Respondent's Exhibits 12a to 12e, respectively. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE 13USINESS OF THE RESPONDENT The respondent is a Pennsylvania corporation organized in 1908, having its principal place of business in Philadelphia, Pennsylvania. It is engaged in the manufacture, sale, and distribution of leather. The principal raw material used by the respondent in its production is goatskins, all of which are imported into Pennsylvania from India. The value of the skins imported annually is approximately $1,094,475. About 92 per cent of respondent's finished products are shipped from Pennsylvania to other States of the United States. In 1937 the total sales of the respondent's finished products aggre- gated $1,652,000.02 in value. In a normal year, the respondent employs approximately 285 employees and its pay roll amounts to $486,614. BURK BROTHERS 1285 The respondent admits that it is engaged in interstate commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED Local #30, National Leather Workers' Association, is a labor organ- ization affiliated with the Congress of Industrial Organizations and admits to membership all production and maintenance workers em- ployed in tanneries in Philadelphia, except foremen and salaried workers. 111. THE UNFAIR LABOR PRACTICES A. Interfer•e'nce, resti-aint, and coercion In the latter part of April 1937, the Union launched a drive to organize the respondent's employees. In this the Union received active assistance from a number of the respondent's employees, chief of whom were the four employees whose discharges are discussed below. These employees, Kosta Kula, Joseph Zalot, Charles Majerick, and Frank Majerick, distributed union literature and solicited mem- bership among the employees of their respective departments. As a result of their efforts, the Union met with considerable success in its organizational efforts and by July 1937 had attained a membership of 125 of the respondent's 285 employees. Immediately upon learning of the advent of the Union, the respond- ent began to express its opposition to the Union and to warn its employees against joining or remaining members of that organization. Emerick Pio, an employee of the respondent, testified- that during the period in question he informed Fred Miller, his foreman, that the Union was organizing the respondent's employees, and that Miller stated in the presence of Pio and Michael Adamski, another employee, "All' those men that belong to the C. I. O. is (sic) going to be laid off." 'Miller denied that he-made the above statement and,Adalnski testified that he could not "recall" that such statement was made "in my presence or anybody else's." Basing his findings on his observa- tion of the witnesses, the Trial Examiner found that Miller, spoke in the terms attributed to him by Pio. In view of his finding, we accept as true Pio's testimony in this respect. At about the same time, on July 26, Miller approached Elwood Pierce, an employee who worked alongside of Charles Majerick, an active union member, spoke to Pierce regarding Majerick's union activities, and inquired whether or not Majerick had solicited Pierce to join the Union. Immediately after Miller left Pierce, the latter turned to Majerick and, according to Majerick, stated, "Watch your- 283032-I1-col 21-82 1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD self, Miller knows you are in the Union; he asked me if you tried to get me to join the Union and I told him no." Pierce, who testified under a subpoena issued by the Board, proved to be a reluctant and evasive witness. He admitted, however, that after Miller had spoken to him concerning Majerick's union activities, he turned to Majerick and told him to "keep his mouth shut." Although the exact context of Miller's statement to Pierce is in doubt, the fact that Pierce was induced by it to warn Majerick in the manner set forth above indi- cated that the tenor of the statement was such as to reveal that Miller was displeased with Majerick's solicitation of membership in and other activities on behalf of the Union. In June 1937 another incident occurred which further disclosed Miller's opposition to the Union. On that occasion, Miller entered the respondent's stockroom where a number of the employees were having lunch and found them reading a union leaflet, which they had just received from a union organizer. Miller took possession of the leaflet, destroyed it, and stated, "Them guys outside giving the leaflets out, they are the fellows looking for easy money, they don't want to work." Sometime in the same month, William Hascher, a foreman, engaged Joseph Zalot in a conversation concerning the Union, during the course of which Hascher stated, "The C. I. O. is no good for anybody, especially for the Burk men." Also, in June 1937, John Zalot, an assistant foreman, spoke to Joseph Zalot, his son, concerning the latter's union activities. During the conversation John Zalot stated that John Yale, a foreman, told him that Joseph Zalot and another employee were "raising hell about the C. I. O." John Zalot then warned his son to "keep his mouth shut or he would be kicked out." On about the same date, John Zalot spoke to Helen Litzner, the mother-in-law of Joseph Zalot, with respect to the latter's activities in behalf of the Union. On this occasion, John Zalot stated that "Joe is supposed to be laid off on account of talking too much about the C. I. O." From the above facts it is plain that the respondent opposed the Union's efforts to organize its employees, and that the respondent im- plemented that opposition by repeatedly warning employees that they would be laid off or discharged because of their union membership and activity. This campaign of coercion and restraint was conducted by a number of supervisory employees, foremost among whom were Fred Miller, William Hascher, and John Zalot. Miller and Hascher were foremen with complete authority over the employees in their respec- tive departments, including the authority to hire and discharge. John Zalot was an assistant foreman who, although he had no authority to hire or discharge employees, exercised managerial functions, including BURL BROTHERS 1287 the assignment and supervision of the work of a number of employees. Under the circumstances the respondent must be deemed answerable for the conduct of the above supervisory employees in their relations with the ordinary employees.' In addition to the conduct discussed above, the respondent, as set forth below, discharged four union members because of their leader- ship u1 the union's campaign. The effectiveness of these discharges and the conduct described herein in combating the Union is shown by the fact that the Union's membership declined from 125 in June to about 7 at the time of the hearing. We find by the above acts the respondent has interfered with, restrained, and coerced,its employees in the exercise of the rights guar- anteed by Section 7 of the Act. B. The discharges lit June 1937 production at, the respondent's plant began to decline, with the result that by the following November the respondent's out- put had fallen about 40 per cent below its original figure. During the same time the respondent laid off between 75 and 88 of its-employees. These lay-offs were not made simultaneously, but were effectuated at successive intervals from June 1937 to January 1938. This manner of reducing the respondent's force was due (1) to the fact that the cur- tailment of production was manifested by a steady decline rather than an abrupt drop from one production level to another; and, (2) to the fact that the tanning operation at the respondent's plant consists of several separate and distinct but successive processes, each of which is performed by a separate department and all of which together require considerable time for completion. As a consequence of this second factor, the effects of a curtailment in reduction at the respondent's plant are felt in succession by each department in accordance with the functional relationship of that department to the entire process. Ac- cordingly the first lay-offs in the present case were made in the beam room, the department where the operation begins, followed in order by the tan house, coloring room, staking department, perching depart- ment, seasoning -department, and lastly the finishing and burnishing department where the operation is finally completed. It does not appear how many or what proportion of the employees laid off during this period were members of the Union. And, although it coincided closely with the advent of the Union, it is not claimed, nor z See International Association of Machinists , Tool and Die Makeis Lodge No 15, affili- ated with the International Association of Machinists, and Production Lodge No 1200, affiliated with the Interaational Association of Machinists v N L R B , 311 U S 72 IC A for D C ), aff'g Matter of The Scrricl, Corporation and International Unnion. United Automobile Workers of America , Local No 1159, 8 N L R B 621 1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD has any attempt been made to show, that the reduction in the respond- ent's force was made for any reason other than a bona fide slump in the respondent's business . The issue presented here is whether or not the respondent utilized the legitimate reduction of its force to rid itself of Kosta Kula, Joseph Zalot, Charles Majerick, and Frank Majerick, the four leading figures in the Union, by selecting them for release on a discriminatory basis. In considering the question, it is important to note two important facts relating to the lay-off policy of the respondent. The first is that, in contrast to its treatment of discharged employees who are paid in full immediately upon discharge, it is the practice of the respondent to refrain from paying employees who are laid off due to curtailed pro- duction until the regular pay day, Friday, at which time they receive their wages together with the remaining employees. And the second and even more significant fact is that in selecting employees for release pursuant to a legitimate reduction in force, it is admittedly the policy of the respondent to effectuate such lay-offs on the basis of depart- mental seniority. Joseph Zalot was first employed by the respondent in 1926. There- after, he was laid off on several occasions but was always reinstated, his last continuous term of employment by the respondent beginning in 1935 and ending on June 28, 1937. At the time of his release Zalot was employed as a general laborer in the respondent's tan house. Zalot joined the Union in June 1937 and, as we have already stated, was one of its most active members. He solicited union membership in his department and succeeded in obtaining a number of members for that organization. We have already seen that, in June 1937, John Zalot, a supervisory employee, told Joseph Zalot that John Yale, foreman of the tan house, had spoken to him about Joseph Zalot's union activities, and, at the same time, warned the latter to "keep his mouth shut" or the would "get`kicked out." We have also seen that John Zalot spoke-in similar terms to Helen Litzner, mother-in-law of Joseph Zalot, stating that Joseph Zalot was "supposed to be laid off on account of talking too much about the C. I. O." On Monday, June 28, 1937, about three days after the above incidents occurred, Yale approached Zalot and stated, "I am laying you off." At the same time Yale handed Zalot a check for his wages up to that date. Zalot then asked why he was being released, stating that he had 4'seniority over at least seven fellows in there." Yale did not deny that claim, but merely replied, "I am the boss around here, and can lay off anybody I want to." Zalot then left bhe;plant. Shortly after the termination of his employment, Zalot went to John Zalot, the assistant foreman, and asked if there was any likelihood that BURK BROTHERS 1289 he might be reinstated. John Zalot replied, "You will never get back in there." When Joseph Zalot insisted that he be told the reason for the respondent's attitude toward him, John Zalot stated, "You got a big mouth and you talk too much about the C. I. 0." In its answer the respondent admitted that it discharged Joseph Zalot but denied that such action was motivated by his union activity. At the hearing, Yale, the foreman who dismissed Zalot, testified that Zalot was not a satisfactory worker because'he reported to work intoxi- cated on several occasions and sometimes remained away from the plant for a considerable time without obtaining leave. He further testified that he had "fired" Zalot on two occasions for those reasons. On cross-examination, however, Yale stated that such disciplinary action had been taken five or six years before Zalot's last release, and admitted that Zalot had done nothing during his last continuous term of employment to merit his discharge. Yale testified that Zalot was not discharged but was laid off because of slack work. However, as we have found above, at the time of the termination of his employment Zalot told Yale that he was senior to "at least seven" employees, and Yale did not then deny the claim. Zalot reaffirmed his claim at the hearing, and gave the names of six persons over whom he claimed seniority. Although the respondent admitted at the hearing that it kept a record of the seniority of each of its employees, it did not submit that record in evidence to refute Zalot's testimony in this regard. In view of its failure to introduce such record in evidence or to offer any other evidence pertaining to the seniority of Zalot in relation to those employees over whom he claimed seniority, we find that Zalot had greater seniority than a number of employees who were retained after his release. From the above facts it is plain that Zalot was discharged because of his prominence in the Union. Although the respondent admitted in its answer that Zalot was discharged, it claimed at the hearing that he was not discharged but merely "laid off" because of the curtail- ment of production. However, the record shows that such was not the case. We have already seen that it is normally the policy of the respondent in making a reduction in staff due to slack production to select employees for lay-off on the basis of seniority. We have also seen that in making such lay-offs as distinguished from a dis- charge, the respondent's practice is not to pay such employees when they are released but to give them their wages on Friday, which is the regular pay day. In the case of Zalot, the respondent not only gave him his wages at the time of his release as is customary in cases of outright discharge, but also deviated from its seniority rule and dismissed Zalot while retaining other employees with less seniority than he. Since the respondent has offered no explanation for its 1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discriminatory treatment of Zalot in this respect, we are led to believe that the reduction in force was not the real reason for Zalot's release, but was seized upon by the respondent as a pretext for dis- charging Zalot because of his union activity. It is likewise plain that Zalot's alleged unsatisfactory work did not influence his discharge, since Yale, himself, admitted that Zalot had done nothing during his last continuous term of employment to merit his discharge. We find that the respondent, by discharging Joseph Zalot on June 28, 1937, has discriminated in regard to the hire and tenure of his employment, thereby discouraging membership in the Union. We further find that by such discharge the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. At the time of his discharge Zalot was earning $20.50 a week. Zalot was reinstated at the same weekly salary by the respondent on December 8, 1938, as a result of the negotiations already referred to between the respondent and the Regional Director. Between the date of his discharge and his reinstatement, Zalot was unemployed. During that period, he received $305 in relief payments and $60.50 in unemployment compensation. Kosta Kula was first employed by the respondent in 1915 and, except for occasional lay-offs due to slack periods, worked for the respondent until the termination of his employment on December 14, 1937. At the time of his release Kula was employed in the tan house. Kula joined the Union in June 1937 and, as we have pointed out in subsection A above, assumed a leading role in its drive to organize the respondent's employees. Being of Albanian descent, and having a knowledge of that language, his services were utilized with particu- lar effectiveness in soliciting membership among the Albanians, a considerable number of whom were employed at the respondent's plant. As a result of his efforts, several of them joined the Union. On Tuesday, December 14, 1937, John Yale, foreman of the -tan house, approached Kula, who was changing his clothing preparatory to leaving the plant, and stated, "Kosta, I am going to lay you off." He then gave Kula his pay in full. According to Kula, Yale told him at that time not to "get mad," that he (Yale) was not responsible for the lay-off, but that "the office is laying you off on account of the Union." Yale denied making the above statement. The Trial Examiner, who heard the testimony and had an opportunity to observe the demeanor of the witnesses on the stand, found that Yale spoke in the terms set forth above. In view of his finding, we accept as true Kula's testimony concerning this incident. BURK BROTHERS 1291 On the same clay, Kula discussed his dismissal with Harry Shaak, fbreh'ian of the beam house. During the conversation Shaak stated, -'Why do you belong to the Union? Why don't you come to me for a couple of dollars raise? You are going to get nothing out of the Union." Yale testified that Kula was not discharged but was laid off because of slack production. However, Kula testified that he had seniority over Nick Drobonik, an employee who was retained after his "lay off." Yale did not deny this testimony , nor did the respondent intro- duce its seniority list in evidence in an attempt to refute Kula's claim. Consequently , we find that Drobonik had less seniority than Kula and that he was retained after Kula's employment had been terminated. As stated below, Kula was reinstated by the respondent on Decem- ber 8, 1938. Prior to that time the respondent recalled two employees, Petro Ndrecka and Henry Andrea, to work in Kula's department. Yale admitted at the hearing that both of these employees had less seniority than Kula, and that , according to the respondent 's policy in such matters , Kula should have been reinstated before them. He stated that they were recalled before - Kula for the reason that he could not find Kula at the time. He admitted, however, that the respondent keeps a record of the addresses of the employees and that he made no attempt to locate Kula by referring to that record or in any other manner. From - the above facts, it is plain that the respondent discharged Kula because of his prominence in the Union . The respondent's claim that he was not discharged but merely laid off pursuant to a legitimate reduction in force is not supported by the evidence. In addition to the fact that Kula, like Zalot, was given his pay in full at the time of his release and the fact that such release was not made on the basis of seniority , Yale, the foreman who dismissed Kula, told him that his employment was being terminated "on account of the Union." These circumstances negative the respondent's con- tention and, together with the other circumstances pertaining to Kula's dismissal , convince us that the respondent made use of its reduction in force to terminate Kula's employment because of his leadership in the Union . This conclusion finds support in the fact that subsequent to his dismissal the respondent , without making any effort to locate Kula and offer him reinstatement, reinstated two other employees who admittedly had less seniority than Kula. We find that the respondent , by discharging Kosta Kula on De- cember 14, 1937, has discriminated in regard to the hire and tenure of his employment, thereby discouraging membership in the Union. 1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We further find that by such discharge the respondent has interfered with, restrained , and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. At the time of his discharge, Kula was earning $20.50 a week. He was reinstated at the same weekly wage by the respondent on De- cember 8, 1938 , as a result of the negotiations already referred to between the respondent and the Regional Director. Between his discharge and his reinstatement, Kula was unemployed . During that time, he earned about $60 selling "snowballs," and in addition received approximately $123 in relief payments and unemployment compensation. Charles Majerick 8 was first employed by the respondent in Febru- ary 1934, and, except for a lay-off of several months during that year, worked for the respondent until his release on August 2, 1937. During most of his employment and at the time of his dismissal, Majerick was employed in the finishing and burnishing department. Majerick joined the Union in June 1937 and became its most ac- tive and successful organizer among the respondent's employees. He secured at least 38 members for the Union, and about five days be- fore his dismissal was awarded a prize at a general meeting of the Union for having obtained the most union members during the month of July. In about the middle of June 1937 , Majerick, who was then .work- ing in the burnishing department , was transferred to the suede de- partment, where he worked under the supervision of Max Lehman, as assistant foreman. On Jlme 22 Maj erick and Lehman engaged in an argument concerning the operation of Majerick 's machine. Dur- ing the altercation Majerick made a number of derogatory and obscene remarks to Lehman. Immediately after this argument, Lehman reported the matter to Henry Fitzpatrick, the respondent's superintendent, and to Fred Miller, foreman of the burnishing department . The latter told Leh- man that Majerick, who is 23 years of age, was "only a kid with school boy ideas," and promised Lehman that Majerick would be re- moved from the suede department and returned to his former posi- tion in the burnishing department the following day. On that same clay, according to Miller, Henry Fitzpatrick ordered him to discharge Majerick. Despite this alleged order , however, Miller did not dis- miss Majerick but ordered him to return to the burnishing depart- ment, where he remained for several weeks prior to the termination of his employment. Miller testified that he did not dismiss Majerick 8 Both Charles Majerick and Frank Maierick , whose discharge is discussed below, appear on the respondent's pay roll under the name of Mayarick BURK BROTHERS 1293 at that time because of his friendship with the latter's father and because he knew that the curtailment of production would soon re- quire him to lay off a number of employees, including Majerick. On July 26, 1937, as we have stated in subsection A above, Miller asked Elwood Pierce, an employee working beside Majerick whether or not the latter had asked Pierce to join the Union, and spoke to Pierce in such a manner as to lead Pierce to warn Majerick to "keep his mouth shut." Also, on July 28, the day after Majerick received the award for having obtained the most union members during July, Miller sharply reprimanded Majerick for speaking to Barney Le- wandoski, another employee, although it had not been his practice to rebuke employees for talking to one another. Shortly thereafter, on Monday, August 2, 1937, Miller approached Majerick and said, "Hey you, I have got to make room for some- body else." He then handed Majerick his pay in full. Majerick inquired why he was being released, and Miller replied, "Maybe, it was the argument you had upstairs." In its answer the respondent admitted that it discharged Majerick, but denied that such dismissal was motivated by his union activity. At the hearing, A. L. Fitzpatrick, the respondent's president, stated that Majerick was discharged because of his quarrel with Max' Lehman on June 22. His testimony in this regard is contradicted, however, by the fact that Majerick was transferred to another de- partment at that time and by a letter dated August 16, 1937, from the respondent to the Regional Director which states that Majerick was laid off because of lack of work. Similarly, Miller, although his testimony on this point is somewhat confused and self-contradic- tory, finally stated that "Majerick was laid off for the same reason that the rest were laid off. We had no work for him." Majerick testified that about 10 or 12 employees with less seniority than he had were retained in his department after his release, and named 9 employees who, according to his testimony, were in that group, giving the approximate date when each of them was first employed by the respondent. Although Miller testified that Majerick was "laid off" in accordance with seniority, he admitted he was unable to say whether or not any of the 9 employees referred to by Majerick were laid off before Majerick "until (he obtained) the records." Since no "records" were introduced in evidence to refute Majerick's testimony in this regard, we find that several employees in Majerick's department with less seniority than he had were re- tained after the termination of his employment. Sometime in October 1938, the respondent sent a message to Frank Majerick, whose discharge is discussed below, asking him to report at the respondent's office. The message was delivered by mistake to 1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Charles Majerick. The latter thereupon appeared at the plant. When he arrived there he was seen by Miller, who asked what Majerick was doing there and said, "You will never get back to work here." It is plain that Majerick's prominence in the Union and not his dispute with Lehman was the real reason for his discharge. When the Lehman affair was brought to the attention of Miller, who was Majerick's foreman, he made light of it, referring to Majerick as "only a kid with school boy ideas." Instead of discharging Majerick, Miller then transferred him to his original job in the burnishing department. Miller's testimony indicates that he considered this transfer to constitute a final disposition of the matter, and the fact that Majerick was retained in the respondent's employ for more than a month thereafter supports this conclusion. We are not impressed by the testimony to the effect that Henry Fitzpatrick, the respond- ent's superintendent, told Miller to discharge Majerick because of the incident. If such order were given, it is obvious that Miller had no intention of obeying it, since he, himself, testified that he decided to retain Majerick until he could be laid off in accordance with seniority. In view of the fact that the respondent's foremen are given a free hand in the conduct of their respective departments, we may reasonably infer that Miller did not regard Fitzpatrick's alleged statement as anything more than advice which he was free to and, in fact, did disregard. At the hearing, Miller apparently took the position that Majerick was laid off because of the reduction of force. In view of the fact that he was paid in full at the time of his release together with the fact that about 10 employees with less seniority than Majerick were retained after Majerick was dismissed, we are convinced that the reduction of force was not the real reason for his dismissal. We are confirmed in that belief by the fact that in October 1938, Miller told Majerick that he would "never get back to work" at the respond- ent's plant. The record shows that prior to, and for some time after the dispute between Majerick and Lehman, Miller was on friendly terms with Majerick and frequently engaged in conversation with him on a variety of topics. In about July, however, his attitude toward Majerick underwent a sharp change, and after about July 26, Miller did not speak to Majerick in the line of duty or otherwise until his dismissal. In addition, we have already seen that at about this time Miller questioned Elwood Pierce concerning Majerick's union activity in such a manner as to lead Pierce to warn Majerick to keep his mouth shut, and that Miller once reprimanded Majerick for talking to another employee, although he had previously permitted BURK BROTHERS 1295 employees to talk to one another during working hours. In sub- section A above, we have found that Miller opposed the advent of the Union and threatened to discharge its members. In view of his hostility toward the Union, together with the fact that his dislike for Majerick coincide with the latter's rise to prominence in the Union, we are persuaded that Majerick's leadership in the Union afforded the cause for Miller's antagonism toward him and that such antagonism was the real reason for his discharge. We find that the respondent, by discharging Charles Majerick on August 2, 1937, has discriminated in regard to the hire and tenure of his employment, thereby discouraging membership in the Union. We further find that by such discharge the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. From May 1938 to the date of the hearing, Majerick was employed by the Union as secretary-treasurer at a salary of $20 a week. He has earned no additional money. Frank Majerick, who is the father of Charles Majerick, was first employed by the respondent in 1907 and worked until 1911, at which time he left the respondent's employ. He was reemployed by the respondent in 1928 and worked without interruption until the termi- nation of his employment on January 28, 1938. During this time he was employed as a glazer in the glazing and burnishing depart- ment. Majerick joined the Union in June 1937 and thereafter became one of its most active members. He was one of the few employees who wore union buttons at the plant and, in addition, succeeded in securing 9 union members in his department. On Friday, January 28, 1938, Fred Miller, the foreman, approached Majerick, handed him his pay check and stated "You are laid off." Majerick testified that Miller also said at that time, "Let the C. I. O. take care of you." Miller denied that he made the latter statement, and testified that he told Majerick that he was being "laid off" because of lack of work. In view of the fact that Miller's version of his conversation with Majerick is supported by the testimony of a number of the employees who were present at the time, we accept as true Miller's testimony concerning his statements to Majerick on this occasion. The respondent states in its answer and Miller testified that Maj- erick was laid off because of the curtailment of production and in accordance with seniority. On the other hand, Majerick testified that two employees, John Miller and an employee named Mitas, who were retained in his department after his release, had less seniority than he had. 1296 DECISIONS Or NATIONAL LABOR RELATIONS BOARD One of these employees, John Miller, was first employed by 'the respondent in 1934 as a glazer in the burnishing and finishing de- partment and admittedly had less seniority than Majerick. However, John Miller is a son of Fred Miller, the foreman, and according to the latter, was employed for the purpose of learning the operations, of the department with a view to' eventually succeeding his father as head of the department. At the hearing, A. L. Fitzpatrick, the respondent's president, stated at the time of Majerick's lay-off, he did not know that John Miller was in the respondent's employ, explaining his ignorance of the matter with the statement that "even Homer nods." Mitas, the other employee retained in Majerick's department and over whom he claims seniority, was first employed by the respondent in about 1910. He worked at the respondent's plant until 1917, at which time he left the plant to serve in the Army overseas. In 1919 he returned to the respondent's employ. On this occasion, the re- spondent, in recognition of his services abroad, permitted him to retain the seniority which he had accrued prior to his departure in 1917. In about January 1934, Mitas was released by the respondent because of slack work, and was not again employed by the respondent until March 22, 1937. During this long absence from the respond- ent's plant Mitas worked for at least one other private concern and, in addition, was employed for a time by W. P. A. Although he admitted that Mitas was laid off by the respondent on that occasion because of lack of work, Miller testified that Mitas' seniority was not impaired by his lay-off because he had granted Mitas a "leave of absence," and consequently that the latter had greater seniority than Majerick. We think it clear that, at the time of Majerick's release, his sen- iority was known by the respondent to be greater than that of Mitas. The special circumstances which led the respondent to permit Mitas to retain his seniority rights during his absence from 1917 to 1919 were not present at the time of his absence from 1934 to 1937. Nor is it claimed that, because of his service overseas, Mitas was granted perpetual exemption from the application of the seniority rule. The fact that he was laid off in 1934 because of curtailed production, while Majerick was retained from 1928 to 1937, tends to refute any such contention. Likewise, we are unable to believe that Mitas was on leave of absence from January 1934 to March 1937. The fact that he was released because of lack of work, his long absence from the plant, and his employment during his absence by another firm and by W. P. A. together indicate that the so-called "leave of absence" was in reality a complete severance of employment which extin- giiished Mitas' seniority rights up to that date. BURK BROTHERS 1297 Our conclusion in this regard is- supported by an incident which occurred or February 16, 1938. On that date Majerick approached A. L. Fitzpatrick and applied for reinstatement. During the conver- sation Fitzpatrick stated that employees were laid off and reinstated according to seniority. Majerick then inquired why John Miller and Mitas, who had less seniority than he had, were then working at the plant. Fitzpatrick thereupon sent for Fred Miller and in- quired whether Mitas had been away from the plant in 1934. Miller replied, "Yes, he was out for about a couple of months." Majerick then said, "Why, Mr. Miller, this man was working in the Quaker City Leather Plant and also on the W. P. A." Miller thereupon became embarrassed and finally admitted that both Mitas and his son, John Miller, had'le'ss "seniority than Majerick. In view of the above facts, we are convinced that the respondent discharged Frank Majerick because of his leadership in the Union's organizing campaign. In subsection A above, we have stated facts indicating that the respondent opposed the entry of the Union into its plant and that the respondent warned its employees that it would discharge employees who joined that organization. Following that threat, the respondent, under cover of a bona fide reduction of force, dismissed, in succession the employees who constituted" the spearhead of the Union's drive, Joseph Zalot, Charles Majerick, Kosta Kula, and finally Frank Majerick. We have considered the cases of Zalot, Charles Majerick, and Kula, and found that in each case the respond- ent utilized its reduction in force or other pretexts to discharge them on a discriminatory basis. We are persuaded that the dismissal of Frank Majerick was but the final step 'in the respondent's concerted attempt to destroy the Union by the systematic elimination of its leaders. Here again the respondent claims that Majerick was not discharged but merely laid off because of the curtailment of production. It is plain, however, that such was not the case. As was true of the other three union leaders discharged by the respondent, Majerick had seniority over employees who were retained in his department after his release. John Miller, one of the two employees to whom he was senior, is the son of Fred Miller, foreman of the department, and we are of the opinion that the kinship between the two was the basis for the conduct. of the foreman in exempting John Miller from the operation, of the seniority rule. However, no such reason appears in the case of Mitas, the other employee. True, Fred Miller attempted to demonstrate that Mitas was senior in service to Ma- jerick by stating that his three-year absence from the respondent's employ, during which he worked at other jobs, was a mere "leave of absence" which did not extinguish his seniority rights. For rea- 1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sons which we have already stated we believe that no such leave of absence was granted and that Mitas was known by the respondent to have less seniority than Majerick, who was steadily employed by the respondent during the time that Mitas was away from the plant. Also,. Miller admitted at the hearing that Mitas was laid off in 1934 because of slack work,, and since Majerick was retained in prefer- ence to him at that time, it would appear that, having accumulated three years of additional seniority during Mitas' absence, Majerick, a fortiori, should have been preferred to Mitas at the time of the "lay off" here in question. In view of its admitted policy of making lay-offs on the basis of seniority, the respondent's disregard of Majerick's clear seniority over Mites in this case must be deemed to constitute discrimination against him because of his union activities. We find that the respondent, by discharging Frank Majerick on January 28, 1938, has discriminated in regard to the hire and tenure of his employment, thereby discouraging membership in the Union. We further find that by such discharge the respondent has inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Prior to his discharge, Majerick, who was employed as a glazer, was earning between, $31 and $32 a week. Sometime in October 1938, the respondent offered Majerick a position as a common laborer at which he would be able to earn about $20 per week. Majerick told the respondent that he would accept the position if the re- spondent would agree in writing to reinstate him to his former posi- tion when it became available. The respondent refused, and Ma- jerick in turn refused the job which he had been offered. Since the job offered Majerick was less skilled and less remunerative than his former position, we find that his refusal to accept the job offered him in no wise mitigates the consequences of the respondent's discrim- ination against him. Between his discharge and the-hearing, Ma- jerick earned $45 playing in an orchestra, $23.92 working-in- a post office, and has received $195 in unemployment compensation. At the time of the hearing, he had no regular employment. He wishes to be reinstated. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent de- scribed in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. BURK BROTHERS V. THE REMEDY 1299 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 conditions which existed prior to the commission of the unfair labor practices. We have found that the respondent discriminatorily discharged Joseph Zalot , Kosta Kula, Charles Majerick, and Frank Majerick. Joseph Zalot and Kosta Kula were reinstated by the respondent on December 8, 1938, without back pay. Accordingly , we shall order the respondent to offer Frank Majerick and Charles Majerick rein- statement to their former or substantially equivalent positions, with- out prejudice to their seniority and other rights and privileges. We shall further order the respondent to make whole Joseph Zalot, Kosta Kula, Charles Majerick , and Frank Majerick for any loss of pay they have differed by reason of their discharges :, by payment to Zalot and Kula of a sulll of money equal to the amount which each of theni would normally have earned as wages from the date of his discharge to the date of his reinstatement ; by payment to Charles Majerick of a sum of money equal to the amount which he would normally have earned as wages from the date of his discharge to the date of the Intermediate Report, and from the date of the Order herein to the date of the offer of reinstatement; and by payment to Frank Majerick of a sum of money equal to the amount which he would normally have earned as wages from the date of his discharge to the date of the Intermediate Report, and from the date thereafter on which a job as glazer , if any, became available in the respond- ent's glazing department, or from the date of the Order herein, whichever date is the earlier, to the date of the offer of reinstate- ment;' less, in the case of each of the four employees , their net earnings during said periods.5 4 See Matter of E. R. Haffelfinger Company, Inc and United Wall Paper Crafts of North America, Local No 6, 1 N. L P. B 760 By "net earnings " is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work elsewhere than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his obtaining employment elsewhere. See flatter 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 Driect relief or home- relief payments are not to be considered as "earnings " and hence are not deductible Matter of Vegetable Oil Products Company , Inc, a Corporation and Soap and Edible Oil Workers Union, Local No. 18409, 5 N. L. R B. 52, amending 1 N L R B 989 Unemploy- ment compensation benefits are similar in purpose and effect to home-relief payments and, therefore , are not deductible. Matter of Pennsylvania Furnace and lion Company and Lodge No. 1328, International Association of Machinists , 13 N L R B 49 The same Is true of relief payments received from a union Matter of Missouri-Aikansas Coach Lines, Inc. and The Brother hood of Railroad 'I'r aini nen, 7 N L. It B 186, Matter of West Kentucky Coal Company and United Mine Workers of Aineiica, District No 23, 10 N. L R. B 88 Nor are monies received as disability compensation from the Veterans Administration of the United States Government to be considered "earnings" and deduc- tible. - Cf. Matter of Louis Horwick & Company, Inc and Textile Tiininiing Workers 1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the above findings of fact and upon the entire record, the Board makes the following : CONCLUSIONS OF LAW 1. Local #30, National Leather Workers' Association, is a labor organization, within the meaning of Section 2 (5) of the Act. 2. The respondent, by discriminating in regard to the hire and tenure of employment of Joseph Zalot, Kosta Kula, Charles Ma- jerick, and Frank Majerick, thereby discouraging membership in the Union, has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 3. The respondent; by interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, 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. 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 respondent, Burk Brothers , its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Local #30, National Leather Workers' Association , or any other labor organization , by discharg- ing 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 the right to self-organiza- tion, to form , join, or assist labor organizations , to bargain collec- tively through representatives of their own choosing , and to engage in concerted activities for the purposes of collecting bargaining and other mutual aid and protection , as guaranteed in Section 7 of the Act. Union, Local Q 1,40, United Textile Worke, s of America, 2 N L R B . 983; Matter of anwelt Shoe Manufacturing Company and Shoe Workers' Protective Union, Local No. 80, 1 N L R B 939 . Monies received for work performed upon Federal , State, county, municipal , or other work-relief projects are not to be considered as earnings, but, as provided below in the Order, shall be deducted from the sums due each of the employees herein, and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal, State, county, municipal , or other government or governments which supplied the funds for said work -relief projects . Republic Steel Corporation, et at. v. N. L. R. B. et al., 107 F ( 2d) 472 ( C. C. A 3 ), enforcing as modified as to other issues Matter of Republic Steel Corporation and Steel Workers' Organizing Committee , 9 N. L R B 219. BURK BROTHERS 1301 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer to Charles Majerick and Frank Majerick immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges ; (b) Make whole Joseph Zalot, Kosta Kula, Charles Majerick, and Frank Majerick for any loss of pay they have suffered by reason of their discharges : by payment to Zalot and Kula of a sum of money equal to the amount which each of them would normally have earned as wages from the date of his discharge to the date of his reinstatement; by payment to Charles Majerick of a sum of money equal to the amount which he would normally have earned from the date of his discharge to the date of the Intermediate Report and from the date of this Order to the date of the offer of reinstatement; and by payment to Frank Majerick of a sum of money equal to the amount which he would normally have earned as wages from the date of his discharge to the date of the Inter- mediate Report, and from the date thereafter on which a job as glazer, if any, became available in the respondent's glazing depart- ment, or from the date of this Order, whichever date is the earlier, to the date of the offer of reinstatement; less, in the case of each of the four employees, his net earnings during such period ; deduct- ing, however, from the amount otherwise due each of them, monies received by them during said periods for work performed on Federal, State, county, municipal, or other work-relief projects, and, pay over the amounts so deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other govern- ment or governments which supplied the funds for said work-relief projects; (c) Immediately post notices in conspicuous places in each de- partment of the respondent's plant, stating that the respondent will cease and desist as provided in paragraphs 1 (a) and (b) and will take the affirmative action set forth in paragraphs 2 (a) and (b) of this Order; and that the respondent's employees are free to become or remain members of Local #30, National Leather Workers' Association, and that the respondent will not discriminate against any employee because of membership or activity in that organization ; (d) Maintain such notices for a period of at least sixty. (60) consecutive days from the date of posting; (e) Notify the Regional Director for the Second Region in writ- ing, within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. 283032-41-vol 21-S3