North Shore Dye House, Inc.

In the Matter of NORTH SHORE DYE HOUSE, INC. AND HOLLAND CLEANERS & DYERS OF N. H., 'INC. and CLEANERS AND DYERS LOCAL 183 OF THE AMALGAMATED CLOTHING WORKERS OF AMERICA Case No. C-537.-Decided June 7, 1940 Cleaning and Dyeing Industry-Employer: two corporations constitute single enterprise where operations under same ownership , management, and control- Interference, Restraint, and Coercion-Discrimination: discharge ; because of assistance to Union and activities with other-employees for purpose of collective bargaining and other mutual aid and protection ; sustained as to two em- ployees-Reinstatement Ordered: for the two employees-Back Pay: awarded to same two employees discriminatorily discharged-Alleged Lock-out and Refusal to Bargain: complaint dismissed as to, where two members of Board reached different conclusions and third member did not participate. Mr. Norman F. Edmonds, for the Board. Mr. Abraham Goldberg and Mr. Edmond J. Blake, of Boston, Mass., for the respondents. Roewer & Reel, by Mr. A. Frank Reel, of Boston, Mass., for the Union. Mr. Arnold R. Cutler, , of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Cleaners and Dyers Local 183 of the Amalgamated Clothing Workers of America, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the First Region (Boston, Massachusetts), issued its complaint dated December 30, 1937, and its amendment to complaint dated January 4, 1938, against North Shore Dye House, Inc., Revere, Massachusetts, and Holland Cleaners & Dyers of New Hampshire, Inc., Derry, New Hampshire, herein respectively called North Shore and Holland Cleaners, and collectively called the respondents, alleging that the respondents had engaged in and were engaging in unfair labor practices affecting ,commerce, within .the meaning of Section 8 (1), (3), and (5) and 24 N. L. R. B., No. 48. ..507 . I 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and amendment to complaint were duly served upon the respondents and the Union. The complaint , as amended, alleged in substance : (1) that the re- spondents are owned, controlled, operated, and managed by the same persons; (2) that on or about October 27, 1937 , North Shore closed its Revere, Massachusetts, plant, and locked out and discharged certain named employees for the reason that they joined and assisted the Union and engaged in concerted activities with other employees for the purposes of collective bargaining and other mutual aid and protection ; (3) that on or' about the same day it transferred most of its operations to the Derry, New Hampshire , plant of Holland Cleaners to avoid its obligations of complying with a closed-shop agreement and of bargaining collectively with the Union ; (4) that North Shore discharged Joseph L . Garcia on or about October 9, 1937, and Jerry Augello, on or about October 13 , 1937, for the reason that each of them assisted the Union and engaged in concerted activities with other employees for the purposes of collective bargain- ing and other mutual aid and protection ; and (5) that North Shore refused to bargain collectively with the Union as the duly authorized representative of the employees of North Shore at its Revere plant, exclusive of clerical and supervisory employees and employees in the shoe department , although the Union represented a majority of such employees in an appropriate bargaining unit . The respondents' an- swer, as amended , denied the material allegations of the complaint, alleged affirmatively that the respondents were not engaged in inter- state commerce, and set forth certain affirmative defenses to the alleged unfair labor practices. Pursuant to notice, a hearing was held at Boston , Massachusetts, from January 6 to 15, 1938, before Waldo C. Holden, the Trial Examiner duly designated by the Board. The Board, the respond- ents, and the Union were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross- examine witnesses,, and to introduce evidence bearing on the issues was afforded all parties : At the opening of the hearing counsel for the respondents made various motions to dismiss the complaint, on the ground that the Board lacked jurisdiction as to North Shore and that Holland Cleaners at no time had any contract with the Union or any obligation to the persons named in the complaint. These motions were denied by the Trial Examiner. During the course of the hearing the Trial Examiner made numerous rulings on other -motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were ' committed. The rulings are hereby affirmed. NORTH SHORE DYE' HOUSE, INC. 509 On April 16, 1938, the Trial Examiner filed his Intermediate, Report, copies of which were duly served upon the respondents and the Union, in which he found that both respondents were owned and controlled by the same individuals and that they had engaged in unfair labor practices affecting commerce within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the Act. He recommended that the respondents (1) cease and desist from the unfair labor practices, (2) dismiss certain employees from the Derry plant, (3) bargain collectively with the Union concerning the employment at the Derry plant of the employees who were previously employed at the Revere plant, and reimburse each of those so employed for transportation expenses to Derry for them- selves and their families,l and (4) grant back pay to Jerry Augello from October 13 to 26, 1937. The Trial Examiner further found that Garcia was not discriminatorily discharged as alleged in the complaint. Thereafter, the respondents and the Union filed exceptions to the Intermediate Report and to various rulings of the Trial Examiner. Pursuant to notice, oral argument was had on December 6, 1938, 'before the Board in Washington, D. C. The respondents and the Union were represented by counsel and participated. in the argument. Pursuant to permission granted by the Board, the respondents and the Union submitted briefs. The Board has reviewed the excep- tions of the respondents and the Union to the findings, conclusions, recommendations, and rulings of the Trial Examiner and, to the extent that the exceptions are inconsistent with the findings, con- clusions, and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENTS A. North Shore North Shore, a Massachusetts corporation engaged in the cleaning and dyeing business, maintains some 35 stores in and about Boston, Massachusetts, and a cleaning and dyeing plant in Revere, Massa- chusetts. Articles of clothing and wearing apparel and fabrics of all kinds are collected at the various stores, shipped to the Revere plant for processing, and returned to the stores for distribution.2 Prior to October 27, 1937, the Revere plant also engaged in processing 1 The"Trial Examiner did not specifically recommend that the respondents offer employ- ment' at their Derry plant to these employees. 2 The Revere plant ceased operations on October 27, 1937. 510 ' DECISIONS OF NATIONAL.-LABOR - RELATIONS BOARD operations for Holland Cleaners, Holland Cleaners and Dyers of Massachusetts, and Excello Corporation of Maine .3 During 1936 the volume of business transacted by North Shore. amounted to $358,076, of which $72,984, or 20 per cent, represented the value of processing performed for Holland Cleaners, Holland Cleaners and Dyers of Massachusetts, and Excello Corporation of Maine on articles shipped to the Revere plant from points outside the Commonwealth of Massachusetts. For the period from January I to October 27, 1937, the volume and character of North Shore's busi- ness were proportionately the same as described above. B. Holland Cleaners Holland Cleaners, a New Hampshire corporation also engaged in the cleaning and dyeing business, maintains 12 stores located in various cities of the State of New Hampshire and the Common- wealth of Massachusetts, and a cleaning and dyeing plant at Derry,. New Hampshire. . During 1936 the volume of business transacted by Holland Cleaners amounted to approximately $80,000, of which $12,074, or 15 per cent,. represented the value of processing performed by the Revere plant of North Shore on articles shipped to it from the Derry plant of Holland Cleaners. For the period from January 1 to October 27;. 1937, the volume and character of Holland Cleaners' business were proportionately the same as described above. Since the closing of the Revere plant on October 27, 1937, all the processing operations carried on by both North Shore and Holland Cleaners have been performed at the Derry plant of Holland Cleaners. Between No- vember 10, 1937, and January 10, 1938, the volume of business trans- acted by Holland Cleaners amounted to approximately, $40,000, 75• per cent of which represented the value of processing operations- upon articles shipped to the Derry plant from points outside the State of New Hampshire by North Shore, Holland Cleaners, Hol- land Cleaners and Dyers of Massachusetts, and Excello Corporation of Maine. C. The relationship between North Shore and Holland Cleaners The complaint alleges that the "respondent North Shore Dye. House, Inc., and the respondent Holland Cleaners & Dyers of New Hampshire, Inc. are owned, controlled, operated, and managed by 8 Holland Cleaners and Dyers of Massachusetts maintains approximately 30 stores, 6 of which are in the State of Rhode Island and the rest in the .Commonwealth of Massachu- setts. Excello ( Excel ) Corporation of Maine maintains all its stores in the- State of" Maine. NORTH SHORE DYE . HOUSE , INC. ' 511 the same persons." The respondents' answer avers that the "respond-, ents neither admit not deny" this allegation of the complaint. , The record supports the allegation of the complaint. The, re- spondents function together as one business enterprise. Samuel and Joseph Rosenfield, brothers, together own about 95 per cent of. the stock of both corporations, and with their respective wives comprise the membership of the board of directors and constitute the execu- tive officers in each of them. Both Samuel and Joseph Rosenfield are together actively engaged in managing both North Shore and Holland Cleaners. The respondents employ one chief district man- ager who has general supervision over all the stores of both cor-. porations. The district manager of Holland Cleaners and the chief district manager receive their salaries from North Shore. As de- scribed above, there is considerable interchange of business and services between the two corporations. In addition, receipts col- lected from the stores of both corporations are deposited each night in the safe of the Derry plant of Holland Cleaners. Following the shut-down of the Revere plant of North Shore, the machinery and equipment of this plant were transferred to the Derry, plant and the operations of both corporations continued without material change except that the Derry plant performed all the processing operations for both. At the hearing, the respondents contended that North Shore and Holland Cleaners are separate and distinct entities. Samuel Rosen- field, the only witness for the respondents on this issue, testified that employees' are never transferred between the two corporations,4 that each maintains its own books and bank account, that each files its ' own tax returns, that the services performed by one for the other are performed pursuant to an agreement between North Shore and Holland Cleaners under which payments are made by checks as between the two, and that the transfer of machinery -and equip-, ment from the Revere to the Derry plant is 'shown by a credit entry for North Shore on the books of Holland Cleaners. The fore- going testimony, however, was neither clear and convincing, nor sup- ported by documentary evidence which the respondents had in their possession. The unreliability of Rosenfield's testimony is plainly revealed in the record. He variously testified with respect to the interchange of services between the corporations that there was no agreement between Holland Cleaners and North Shore; that "well,". there was an agreement, "because it is charged, it has got to be charged ac=' cordingly"; that there was a "working agreement" as to.shoes; and 4 One of the, employees, Joseph , L. -Garcia, although employed , and paid, by North Shore also worked at the plant of Holland Cleaners. 512 DECISIONS OF NATIONAL LABOR RELATIONS. BOARD that there was a working agreement as to the 'method of charging for "services performed," but that the "agreement" was a "verbal" one. Although testifying that payments under the "agreement" were made by check, he failed to produce any tangible evidence in the form of cancelled vouchers to show such transfers of funds. Al- though the respondents had in their possession at the courtroom certain of their corporate books, they refused to permit an exami- nation of the books with respect to the alleged bookkeeping trans- action between North Shore and Holland Cleaners in payment for the machinery and equipment of the former.5 Subpenas were duly served upon certain of the officers of both corporations. Subpoenas daces tecum for the production of the corporate books and records of both were also duly served on the proper officers. None of the subpenas were obeyed. In the light of all the evidence we do not credit Rosenfield's testimony with respect to the separate entities of North Shore and Holland Cleaners. The Trial Examiner, in his Intermediate Report, found that "there is but a single management of both corporations and at all times the policies and practices of each have supplemented the policies and practices of the other." The respondents took no excep- tion to this .finding and at the oral argument their counsel admitted that the ownership of, North Shore and Holland Cleaners is vested in the same persons. We find that the operations of the' respondents constitute a single enterprise under the same ownership, management, and control .6 II. THE ORGANIZATION INVOLVED Cleaners and Dyers Local 183 of the Amalgamated Clothing Workers of America is a labor organization admitting to membership all employees of North Shore at its Revere plant, except clerical and supervisory employees and those employed in the shoe depart- ment.' III. THE ' UNFAIR LABOR PRACTICES A. The background Early in 1937 the Union, after an organizing campaign among the employees in the cleaning and dyeing industry in and around a The record contains many other instances of the unreliability of Rosenfield 's testimony. e N. L. R. B. v. Hopwood Retinning Company, Inc., at al., 98 F. (2d ) 97 (C. C. A. 2), enf'g as mod . Matter o f Hopwood Retinning Company, Inc., et al. and Metal Polishers, Buffers, Platers and Helpers International Union Local No. 8, and Teamsters Union, Local No. 584, 4 N. L. R. B. 922; N. L. R. B. v. Christian A. Lund, et at., 103 F. ( 2d) 815 (C. C. A. 8), enf'g Matter of C. A. Lund Company and Novelty Workers Union, Local 1866 (A. F. L.) successor, 6 N. L. R. B. 423. 7 Amalgamated Clothing Workers of America is now affiliated with the Congress of Industrial Organizations. NORTH SHORE DYE HOUSE, INC. 513 Boston, attempted to negotiate with the employers in the industry, including North Shore, but its efforts proved unsuccessful. In order to avert a strike, the Board of Conciliation and Arbitration of the Department of Labor and Industries of the Commonwealth of Massa- chusetts intervened and arranged a conference at which all the employers, including North Shore, and the Union concluded an agreement pursuant to which each of the employers was to eater into a certain contract with the Union. Thereafter, however, the employers refused to abide by their agreement. Efforts on the part of the Board of Conciliation and Arbitration and the Union to secure the employers' attendance at further conferences proved futile. Because of the employers' conduct' just recited the Union called a strike on May 15, 1937. On June 2 the strike was terminated when some 28 employers, including North Shore, each signed identical 1-year contracts relating to wages, hours, and working conditions. Subsequently, North Shore refused to abide by the terms of the contract and insisted upon a wage reduction. After a series of conferences between North Shore and the Union, the Union acceded to a minimum wage scale less than that agreed upon in the June 2 contract. Prior to the above strike Samuel Rosenfield had announced to the union representative that North Shore would refuse. to sign an agreement with the Union unless it was "forced to do it . . . We have no union yet. The union doesn't mean anything." During the strike Samuel and Joseph Rosenfield had told one of the em- ployees that the respondents "wouldn't have [the Union] in .. . [the] factory" and admonished the employees, "Don't join [the Union], they are only after your money. If you do you won't get nowheres." The Rosenfields did not deny making these statements. Throughout the above period of union organization and negotia- tion with North Shore, and thereafter, the employees at the Revere plant were subjected to a series of tirades against the Union by Teneriello, the forelady in charge of all the employees at the plant except those in the shoe department. She told the employees "not to pay attention to the Union"; stated that "the Union was no good, never did . . . any good and wouldn't last long"; warned them that they "wouldn't get anywhere [with] the Union"; exhorted them not to attend union functions; and threatened to discharge them if they retained their membership in the Union. None of the above state- ments attributed to Teneriello were specifically denied by her at the. hearing. She testified, however, that she had never discussed or men= tioned the Union to the employees, except on one occasion. relating to a union grievance. In view of the consistent testimony of the vari- 514 DECISIONS' OF NATIONAL LABOR RELATIONS BOARD ous witnesses who testified regarding her anti-union activities, and the findings of the Trial Examiner in this regard, we are convinced that she engaged in the above-described conduct. It is evident that the respondents, through Samuel and, Joseph Rosenfield, were opposed to the Union and expressed their hostility to it. It is further apparent that Teneriello, by her aforesaid con- duct, sought to interfere with, restrain, and coerce the employees in the exercise of their rights guaranteed by the Act, and merely echoed and further expressed the hostility of the respondents to the Union. The respondents' hostility to the Union, as depicted by the events described above, constitute the background upon which the alleged un- fair labor practices of the respondents are projected. B. The discharges Joseph L. Garcia had been employed by the respondents for about 12 years. Although engaged primarily at the Revere plant, where lie served as chief engineer, for approximately the last 5 years pre- ceding his discharge the respondents had also employed him to a large extent at the Derry plant. He had been a competent worker, had always supervised one or two employees,8 and had been the highest paid employee at the plant. During April 1937, the respond- ents had raised his salary by $3 to $53 per week. During most of his long period of employment, he and Samuel Rosenfield had been close friends. They had on occasion taken trips together and their families had participated in mutual social activities. The respondents dis- charged Garcia on October 9, 1937. The complaint alleges that the respondents discharged Garcia be- cause he assisted the Union and engaged in concerted activities with the other employees for the purpose of collective bargaining and other mutual aid and protection. The Trial Examiner recommended that the allegations of the complaint with respect to Garcia be dis- missed for the reason that it was "not established on the record that Garcia was a member of. the Union on October 9, 1937, or any way active therein." As described above, the Union called a strike at the-Revere plant on May 15, 1937. Two days later Garcia' refused to work and left the plant asserting that he would not supply power and steam to the 20 strikebreakers whom the respondents had hired in order to con- tinue the operation of their business. As a result of Garcia's re- 8 Although, as noted above, Garcia engaged in some supervisory functions, he was eligible for membership in the Union and was included in the appropriate unit. Cf. 'Matter of Theurer Wagon Works, Inc. and International Union, United Automobile Workers of Amer- cam Locals 259 and 374, 18 N. L. R. B. 837. NORTH SHORE DYE HOUSE,' INC.'' 515 'fusal to work, the respondents were unable to operate the plant and were compelled to shut it down for the- duration of the strike.' Thereafter, in June 1937, Garcia joined the Union and was a mem- ber in good standing at the time of his discharge. Although there is no showing that the respondents were aware of Garcia's union mem- ship,10 they obviously had knowledge of the assistance that Garcia 'had rendered the Union during the strike; nor could they have under- ,estimated the value of this assistance to the Union. Under these 'circumstances, we are of the opinion that the Trial Examiner's finding with respect to Garcia's union membership and activity at the time .of his discharge is not material to the issue herein 11 After the strike terminated, the respondents reinstated Garcia -together with the other employees. Within the succeeding week Garcia became a member of the Union. However, following his re- instatement, the long existing friendship between Garcia and Rosen- field 12 waned. Similarly the relations between the families of these -two men became strained and finally ended. About noon on Saturday, October 9, 1937, the plant, as usual, closed for the week end. Several hours later, Garcia, who had gone home after completing his day's work, was ordered by Rosenfield to return to the plant "right away," which he did forthwith. Rosenfield testi- fied that Garcia had always been a satisfactory employee except for a period of 2 to 4 weeks prior to the discharge when he had "time and time again" told Garcia to fix certain windows, various leaks in the pipes, and "other little things, like a tumbler in the door." Rosen- field further testified that Garcia had failed to perform these tasks, .and that he had called Garcia to advise him of these derelictions. According to Rosenfield, upon hearing this criticism, Garcia "for about a minute or a second . . . didn't say anything. And then he jumped up and he said, `You are lucky that you are in your office. 9 The respondents contend that Garcia did not stop work until they had ordered the cessation of operations in the plant . We do not , however, accord weight to this conten- tion which is based upon the unsupported , testimony of Samuel Rosenfield, whom we have found above to be an unreliable witness . Moreover, the respondents ' contention as well as Rosenfield 's testimony is inconsistent with Rosenfield 's action at the time of the strike in hiring strikebreakers and attempting to continue the plant in operation. "Unlike the other union members whose dues ' were checked off by the respondents, Garcia, because he received a comparatively high salary , paid his dues in advance directly to the Union. 11 A discrimination to discourage union membership is no less a violation of Section 8 (3) of the Act when it is directed against a non -union employee . See Matter of Mexia Textile Hills and Textile Workers Organizing Committee, 11 N. L. R. B. 1167, enf'd Mexia Textile Hills v. Al. L. R. B., 110 F. (2d) 179 (C. C. A. 4) ; Matter of La Paree Undergarment Company, Inc. and International Ladies' Garment Workers' Union, Local No . 166, C. 1. 0., 17 N. L . R. B. 166 ; Matter of Berkshire Knitting Mills and American Federation of Hosiery Workers, Branch ##10 , 17 N. L. R. B. 239 ; see also Matter of Air Associates , Incorporated and International Union United Automobile Workers of America , Local No. $65, affiliated with the C. I. 0., 20 N . L. R. B. 356. 12 Unless otherwise indicated the references herein are to Samuel Rosenfield. 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I would like to eat your eyes out' . . . He was very excited and he repeated that remark again." The respondents contended that because of this "insolent and improper conduct," Garcia was forth- with discharged. In their brief the respondents took the position that Garcia "was discharged for insubordination." According to Garcia, when he entered Rosenfield's office, the latter "was sitting in his chair, all nervous, so he hardly could talk. He said, `Joe, I have some very bad news for you . . . You are all through."' Garcia testified that when he asked Rosenfield to state the reasons for his discharge Rosenfield refused to give him any explanation, and that when he then pleaded for a week's notice, Rosenfield announced, "You are all done as far as we are concerned." Garcia thereupon collected his belongings and left. He denied mak- ing any threats to Rosenfield. Several days after the discharge, the union representative requested Rosenfield to reinstate Garcia. After replying that the Union had no right to complain in behalf of Garcia since he was not a union mem- ber, Rosenfield added, "If I knew he was a member of the union I would have fired him long ago." We are of the opinion that Rosenfield did not call Garcia back to work on October 9 in order to take him to task for alleged neglect of duty and that Garcia did not display the alleged insubordination which the respondents assert as the reason for the discharge. We have observed above Rosenfield's unreliability as a witness. We do not believe that he would have recalled Garcia to work on a Saturday afternoon in order to complain to him about his failure to make minor repairs which Rosenfield himself characterized as "little things." 13 Nor do we believe that Garcia, after some 12 years of satisfactory service suddenly became so negligent in the performance of his duties that Rosenfield would have resorted to an unusual pro- cedure in order to impress upon Garcia his alleged derelictions. We find that the conversation between Rosenfield and Garcia took place substantially as testified to by Garcia and that Garcia did not dis- play the insubordination ascribed to him by Rosenfield. We are of the opinion that the respondents resented Garcia's sym- pathy for the collective activity of his fellow employees and that Rosenfield considered as an affront to the respondents his refusal to assist them in breaking the May 1937 strike. We have observed the respondents' hostility to the Union and the waning of Rosen field's friendship with Garcia which became noticeable in May 1937 and which finds explanation only in Garcia's refusal to work with strike- breakers during the strike. Rosenfield's statement that he would have discharged Garcia sooner had he known of the latter's union "Garcia had on other occasions been called to the plant after working hours, but only in cases of emergency. NORTH SHORE DYE HOUSE, INC. 517 membership plainly demonstrates the respondents' resentment to- ward Garcia for his cooperation with the Union and may well explain their failure to discharge him immediately after the strike. In any event Rosenfield's remark affords no support to the respondents' ar- gument that they could not, therefore, have given concrete manifesta- tion to their anti-union bias as revealed in the remark. We are satis- fied, and find, in the light of the respondents' hostility to the Union and the circumstances under which the discharge was effected, that the respondents sought to rid themselves of an employee upon whom the continued operation of the plant depended and who had amply demonstrated his interest in and cooperation with his fellow em- ployees in their union activities. We find that the respondents, by discharging Garcia, have dis- criminated in regard to his hire and tenure of employment, thereby discouraging membership in the Union and interfering with, re- straining, and coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act. Following his discharge, Garcia was employed elsewhere during October 1937 for a period of 9 days, during which he earned $65. On November 10, 1937, Garcia obtained other employment and was so employed at the time of the hearing, his salary then being $45 per week. Garcia desires to be reinstated to his former position. Jerry Augello had been employed for approximately 3 years as a spotter by the respondents at the Revere plant. Augello, who joined the Union prior to May 15, 1937, was one of its most active members and played a prominent part in the May 1937 strike. Fol- lowing the settlement of the strike he became a member of the execu- tive board of the Union, serving in that capacity until September 1937.14 He was also one of the union representatives to participate in the conferences with North Shore following its refusal to comply with the June 2, 1937, contract. The respondents disapproved of Augello's union activities. At the time that the employees went on 'strike in May 1937, Teneriello had threatened, in the presence of several employees, that she would "get even with Jerry." After he became an officer in the Union, Teneriello on several occasions commented to one of the union rep- resentatives that Augello was a "big boss in the Union now." Four days after Garcia's discharge the respondents discharged Augello. On October 11 Augello, who had ;reported for work at about 6 o'clock in the morning, asked Teneriello to "mark in" a pair of his trousers for pressing. She accepted the trousers and told him that she would forward the charge therefor through the office. Shortly 14 The executive board of the Union was comprised of one member from each plant in the industry. 283035-42-vol. 24-34 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thereafter Augello brought the trousers to one of the tailors to have a small hole in one of the pockets mended, following which he re- turned them to Teneriello to be pressed. Upon completing his work for the day, he applied for his trousers at the office. Before giving them to him, the bookkeeper inspected them in order to fix the proc- essing charge. Augello told the bookkeeper that the trousers had only been pressed, without mentioning the mending of the pocket, since it was the respondents' practice to make such minor repairs without additional cost. Unknown to Augello, instead of mending the pocket the tailor had inserted a new one. The bookkeeper on finding the new pocket, questioned Augello about it. During the dis- cussion Joseph Rosenfield appeared and likewise questioned Augello with respect to the new pocket. Augello replied that he had not requested a new pocket and was unaware that it had been inserted. He offered, however, to pay the necessary cost thereof, a total of 12 cents. On the following workday Angello was discharged by the respondents for dishonesty. When the Union at that time protested against his discharge, Samuel Rosenfield stated that the respondents could not "keep a man that steals in the shop." At the hearing the respondents contended that it was a strict rule of the company that any employee who desired to have a garment processed was required first to bring it to the office to have a record and charge made, and that Augello had been discharged because he had failed to comply with this rule. In its brief, the respondents stated that Augello "was discharged because of failure to obey the rules of the company by bringing his personal apparel into the plant without proper and customary checking." 16 While the above rule may have been enforced by the respondents after 8 o'clock in the morning, at which hour the office opened, it is clear from the record that when an employee brought any articles of clothing into the plant before.the office opened, it was the practice to "leave them in the office with a note on them or take them up- stairs and bring them down during [the] lunch hour or have someone take them down to the office for [him]." 16 As the office was not open when Augello reported for work on the morning of October 11, he had requested the forelady to "mark in" the trousers. She had assured him that she would have them properly recorded and charged by the office. Accordingly it was not necessary for Augello himself to take them to the office. It is clear, and we find, that Augello, instead of violating the company rules, had complied with them. 15 We consider it significant that Teneriello did not testify regarding the incident relat- ing to Augello's trousers. 16 The above practice when the office was not open appears from the undenled testimony of the North Shore district manager. NORTH SHORE' ..DYE HOUSE, 'INC.. ; . 519 The respondents do not claim that Augello had knowledge that a, new pocket had been inserted in his trousers, nor do we believe that the respondents. considered Augello dishonest as a result of -their possible loss of a 12-cent charge. Neither at the hearing nor in their brief do the respondents mention dishonesty as the cause for the dismissal, despite the fact that at the time of the discharge and several days thereafter Rosenfield justified it on this ground. It is evident that by the time of the hearing even the 'respondents had abandoned this triflug incident as a reasonable explanation for the discharge. We are satisfied that in discharging Augello, the respondents carried out their threat uttered by Teneriello, to "get -even" with him because of his prominence in the affairs of the Union. We find that the respondents by discharging Augello have dis- ,criminated in regard to his hire and tenure of employment, thereby discouraging membership in the Union and interfering with, re- straining, and coercing their employees in the exercise of the rights :guaranteed in Section 7 of the Act. As of the time of the hearing,,Augello had not obtained any other employment since the date of his dismissal. At the time of his discharge he was earning $15 per week. He desires to be reinstated to his former position. C. The alleged lock-out and the alleged refusal to bargain The complaint alleges that on or about October 27, 1937, North Shore closed its Revere plant and locked out and discharged all its employees because of their union membership, transferred its opera- tions to Derry, New Hampshire, and refused since that date to bar- gain collectively with the Union as the sole bargaining agent of the respondents' employees in an appropriate unit, and that the re- spondents have thereby engaged in unfair labor practices within the meaning of Section 8 (1), (3), and (5) of the Act. The members of the Board who are participating in this decision reach different conclusions on the evidence adduced at the hearing in connection with the .foregoing allegations of the complaint. Chair- man Madden would dismiss these allegations whereas Mr. Edwin Smith would find that they are supported by the ' evidence. Since Mr. Leiserson does not participate in this decision and since a major- ity of the Board does not find the unfair labor practices as above alleged, the complaint shall be dismissed with respect to such ;allegations. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondents set forth in Section III B above, occurring in connection with the operations of the respondents de 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 commerce and the free flow of commerce. THE REMEDY We have found that the operations of the respondents constituted a single business enterprise under the same ownership, management, and control. Having found that they have engaged in unfair labor practices, we will order them to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. - We have found that the respondents discharged Joseph L. Garcia and Jerry Augello because of their assistance to the Union and be- cause of their activities with the other employees for the purpose of collective bargaining and other mutual aid and protection. Accord- ingly, we shall order the respondents to offer each of these employees immediate and full reinstatement to his former or to substantially equivalent employment either at the Revere, Massachusetts, plant, if that plant is now operating, or, if not operating, at the Derry, New Hampshire, plant, without prejudice to his seniority and other rights and privileges. We shall also order the respondents to make said employees whole for any loss of pay they have suffered by reason of the respondents' unlawful acts against them,by payment to each of them of a sum of money equal to the amount which he would have earned as wages from the date of his discharge to the date of the issuance of the Intermediate Report and from the date of this Order to the date of the offer of reinstatement, less his net earnings 17 dur- ing said periods.1s 17 By "net earnings " is meant earnings less expenses, such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondents, 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, enf'd, N. L. R. B. v. Crossett Lumber Company, 102 F. (2d) 1003 (C. C. A. 8). Monies received for work performed upon Federal, State. county , municipal , or other work-relief projects are,not considered as earnings , but as provided below in the Order, shall be deducted from the sum due the employee, and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal, State , county, municipal , or other government or governments which supplied the funds for said work-relief projects. See Republic Steel Corporation v. N. L. R. B., 107 F. (2d) 472 (C. C. A. 3), enf'g as mod. Matter of Republic Steel Corpora- tion and Steel Workers Organizing Committee , 9 N. L. R. B. 219. 16 Normally we would order the respondents to make whole each of the employees for any loss of pay he may have suffered from the date of his discharge to the date of the offer of reinstatement. However, as the Trial Examiner in his Intermediate Report did not recommend the reinstatement of either Garcia or Augello, we shall not require the respondents to pay back pay from the date of the issuance of the Intermediate Report to the date of the Order herein. See Matter of E. R. Haffelfinger Company, Inc. and United Wall Paper Crafts of North America, Local No. 6, 1 N. L. R. B. 760; Matter of Brown Shoe Company, Inc., a corporation and Boot and Shoe Workers' Union, Local No. 655, 1 N. L. R. B. 803. NORTH SHORE : DYE HOUSE , INC. - 521 Upon th'e basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Cleaners & Dyers Local 183 of the Amalgamated Clothing Workers of America is a labor organization, within the meaning of Section 2 (5) of the Act. . 2. By discriminating in regard to the hire and tenure of employ- ment of Joseph L. Garcia and Jerry Augello, thereby discouraging membership in the Union, the respondents have engaged in and are engaging in unfair labor practices, within the meaning ' of Section 8 (3) of the Act. 3. By interfering with, restraining, and coercing their employees- in the exercise of the rights guaranteed in Section 7 of the Act, the respondents have engaged in and are 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 re- spondents, North Shore Dye House, Inc., and Holland Cleaners & Dyers of New Hampshire, Inc., and their respective officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in Cleaners and Dyers Local 183 of the Amalgamated Clothing Workers of America, or any other labor organization of their employees by discriminating in regard to the hire or tenure of employment or any term or condition of employment of any of their employees; (b) In any other manner interfering with, restraining, or coercing their 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 Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Joseph L. Garcia and Jerry Augello immediate and full reinstatement to their former or to substantially equivalent posi- tions at the Revere, Massachusetts, plant, if that plant is now operat- s 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing, or, if not operating, at the Derry, New Hampshire, ' plant, without prejudice to their seniority and other rights and privileges;, (b) Make said Garcia and Augello whole for any loss of pay they have suffered by reason of their respective discharges by the re- spondents by payment to each of them of a sum of money equal to the amount each would normally have earned as wages from the date of his discharge to the date of the issuance of the Intermediate Re-, port and from the date of this Order to the date of offer of reinstate- ment, less his net earnings during said periods; provided, however, that the respondents shall deduct from the amount otherwise due to each of said employees, monies received by each of such employees during said periods for work performed upon Federal, State, county, municipal, or other work-relief projects, and shall 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) Post immediately in conspicuous places at their Revere, Mas- sachusetts, plant,:i.f it is in operation, and at. their Derry, New Hamp- shire, plant, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to their employees stating : (1) that the respondents will not engage in the conduct from which they are ordered to cease and desist in paragraphs 1 (a) and (b) of this Order; (2) that the respondents will take the affirmative action set forth' in paragraphs 2 (a) and (b) of this Order; and (3) that the respondents' employees are free to become or remain members of Cleaners and Dyers Local 183 of the Amal- gamated Clothing Workers of America and that the respondents will not discriminate against any employee because of membership or activity in that organization; (d) Notify the. Regional Director for the First Region in writing within ten (10) days. from the date of this Order what steps the respondents have taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint, in so far as it alleges that the respondents have discriminated against employees other than Garcia and Augello, and in -so far as it alleges that the respondents have refused to bargain collectively with Cleaners and Dyers Local 183 of the Amalgamated Clothing Workers of America, as the sole collective bargaining representative of the respondents' employees in an appropriate unit, be, and it hereby is, dismissed.' MR. WILLIAM M. LEISERSON took no part in the 'consideration of the above Decision and Order. J