Resnick Cleaners

In the Matter Of RESNICK CLEANERS & DYERS, INC., DAVID AND ANNA RESNICK, TRADING AND DOING BUSINESS AS RESNICK CLEANERS; DAVID AND ANNA RESNICK, INDIVIDUALLY and INTERNATIONAL ASSOCIATION OF CLEANING & DYE HOUSE WORKERS (A. F. OF L.), LOCAL #9 Case No. C-1048.-Decided June 13, 1940 Cleaning and Dyeing Industry-Procedure: further hearing ordered, upon request of all parties , to incorporate testimony of named witnesses for the respondent who had not been called at the first hearing due to an oral stipula- tion-Interference, Restraint, and Coercion: urging employees to form local, autonomous union and not to affiliate with outside union ; statements to indi- vidual employees and employees assembled at plant meetings , called for that pur- pose, threatening to discharge employees or close the plant if employees joined the outside union ; identification of the union with "racketeers"; promise to "protect" employees against "racketeering" unions ; investigation of extent of union membership and activity ; publication of advertisements calling union officials "outside agitators or instigators of competitive fields" and implying that union was dominated by "professional agitators" ; intimidation and trailing of union organizers-Employer: contention of, that it has no supervisory em- ployees, rejected-Discrimination: allegations of complaint sustained as to nine employees, dismissed as to two employees ; ( Smith dissents ) to dismissal of complaint as to one employee-Reinstatement Ordered: for nine employees-Back Pay: awarded-Strike: caused by unfair labor practices ; strikers entitled to reinstatement or placement upon preferential hiring list upon application. Mr. John H. Dorsey, for the Board. Mr. David H. Weiner, Bloom c€ Bloom, by Mr. George I. Bloom and Mr. I. C. Bloom, and Mr. W. S. Yard, all of Washington, Pa., and Mr. M. Leon Tolochko, of Pittsburgh, Pa., for the respondents. Mr. Leo I. Shapiro, of Pittsburgh, Pa., for the Union. Mr. Louis A. Roland, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by International Association of Cleaning and Dye House Workers, Local No. 9, herein called the Union, the National Labor Relations Board, herein called 24 N. L. R. B., No. 67. 690 RESNICK CLEANERS & DYERS, INC. 691 the Board, by Charles T. Douds, Regional Director for the Sixth Region (Pittsburgh, Pennsylvania), issued its complaint dated July 26, 1938, against Resnick Cleaners & Dyers, Inc., David and Anna Resnick, trading and doing business as Resnick Cleaners, and David and Anna Resnick, individually, all of Washington, Pennsylvania, herein collectively or individually 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 thereon, were duly served upon the respondent and the Union. Concerning the unfair labor practices, the complaint alleged, in substance, that, on dates from about February 18, 1938, to about March 17, 1938, the respondent terminated the employment of 11 named employees, and, since those dates, has refused to reemploy the aforesaid employees because of their membership in and activity on behalf of the Union, thereby discouraging membership in the Union; that as a result of the aforesaid acts of the respondent, the Union called a strike on about March 21, 1938, at the respondent's Wash- ington, Pennsylvania, plant, which had not terminated at the date of the complaint; that on about August 1, 1937, and thereafter, the respondent, by threats, newspaper advertisements, speeches, con- versations, and in various other ways discouraged membership in the Union; and that the respondent, by all the afore-mentioned acts and by other acts, interfered with, restrained, and coerced its em- ployees in the exercise of their rights guaranteed in. Section 7 of the Act. On August 2, 1938, the respondent filed an answer admitting certain allegations of the complaint as to the nature of its business, but denying the alleged unfair labor practices and the Board's jurisdiction. Pursuant to notice, a hearing was held at Pittsburgh, Pennsylvania, on August 4, 5, 6, 8, and 9, 1938, before Herbert Wenzel, the Trial Examiner duly designated by the Board. The Board, the respond- ent, 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 upon the issues was afforded all parties. During the course of the hearing, the Trial Examiner made rulings on 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. Thereafter, the respondent filed a brief which was considered by the Trial Examiner in the preparation of his Intermediate Report. ,692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On November 10, 1938, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon the respondent and the Union, finding that the respondent had engaged in and was en- gaging in unfair labor practices affecting commerce within the mean- ing of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act. He recommended that the respondent cease and desist from the unfair labor practices so found; offer reinstatement, with back pay, to seven employees found to have been discriminatorily discharged; upon ap- plication, offer reinstatement to employees who had gone on strike because of the respondent's unfair labor practices; take certain other affirmative action; and that the complaint, in so far as it alleged that the respondent discriminatorily discharged and refused to reemploy four other employees, be dismissed. Thereafter, the respondent and the Union filed exceptions to the Intermediate Report, and, after hav- ing waived oral argument before the Board in Washington, D. C., both the respondent and the Union, pursuant to permission granted by the Board, filed briefs in support of their respective exceptions. By written stipulation of the respondent, the Union, and counsel for the Board, signed respectively on October 30, 31, and November 6, 1939, it was agreed that the record in this proceeding be reopened to incor- porate the testimony of 30 named witnesses for the respondent who, as a result of an oral stipulation at the hearing, had not been called to testify. Having duly considered the matter, the Board, on November 9, 1939, ordered that the record be reopened and that a further hearing be held for the introduction of the testimony of the afore-mentioned 30 persons. Pursuant to notice, a further hearing was held at Pitts- burgh and at Washington, Pennsylvania, on December 7 and 8, 1939, before Herbert Wenzel, the Trial Examiner duly designated by the Board. The Board, the respondent, and the Union were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce'evi- dence bearing upon the issues as delimited in the Board's order of November 9, 1939, was afforded all parties.' During the course of the hearing, the Trial Examiner made several rulings on 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. Pursuant to an order of the Board, dated December 14, 1939, the Trial Examiner prepared and filed a Supplemental Intermediate Re- port, dated March 12, 1940, copies of which were duly served upon the respondent and the Union, in which he made supplemental findings of fact but no change in the conclusions and recommendations of his In- termediate Report. Exceptions to the Supplemental Intermediate 'The respondent called as direct witnesses 21 of the 30 persons named in the Board's order, and expressly waived the right or privilege of calling" the 9 other named persons. RESNICK CLEANERS & DYERS, INC. 693 Report were thereafter filed by the respondent, and both the respond- ent and the Union filed supplemental briefs with the Board. On May 7, 1940, a hearing was held before the Board in Washington, D. C., for the purpose of oral argument on exceptions to the Intermediate and Supplemental Intermediate Reports. 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 and Supplemental Intermediate Reports and, in so far as they are inconsistent with the findings, conclusions; and order set forth below, finds them to be without merit.. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT David and Anna Resnick, trading and doing business as Resnick Cleaners, is a partnership formed on or about January 1, 1938, as the successors to Resnick Cleaners & Dyers, Inc., a Pennsylvania cor- poration which at the time of the first hearing was in process of dis- solution.2 The principal office and plant of the respondent is in the city of Washington, Pennsylvania, where it is engaged in the business ,of laundering, cleaning, pressing, repairing, and dyeing of all articles of wearing apparel, household furnishings, and fabrics. The respond- ent, in addition, controls and operates 59 retail cleaning stores, known as Peter Pan Cleaners, 11 of which are located in Ohio and West Virginia.' The employees involved in this case are those at the Washington, Pennsylvania, plant. During the calendar year 1937, the volume of business (lone by the respondent totaled in value $159,078.23, approximately 22.8 per cent of which represented business coming from outside the State of Pennsyl- vania. For the period from January 1, 1938, to May 28,1938, inclusive, the total volume of business of the respondent amounted to $149,119.51, approximately 18.6 per cent of which represented business coming from outside the State of Pennsylvania. The respondent owns and operates a fleet of six motor trucks which are used to transport articles from retail cleaning stores in and outside the State of Pennsylvania to the respondent's plant for cleaning, dyeing, or other operations. These trucks also reconvey the articles to the respective retail stores. 3 Resnick Cleaners & Dyers, Inc., and David and Anna Resnick ; individually, and trading and doing business as Resnick Cleaners, will hereinafter be referred to, collec- tively or individually, as the respondent. 3 All the Peter Pan stores were, prior to January 1938, owned by Resnick Cleaners & Dyers, Inc. Thereafter, their ownership was transferred to Arthur Resnick, son of David Resnick, but management and control were, pursuant to an oral agreement , left in the hands of the respondent for a trial period. Since.January 1938 , however, the monies of both the Peter Pan stores and the respondent have been kept in a single account. 283035-42-vol. 24-45 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The total value of materials. 'purchased by the respondent during 1937 amounted to $38,155.91. Of this amount, 14.3 per cent repre- sented purchases shipped to the plant from outside the,State of Penn- sylvania. The total value of materials purchased -from January 1, 1938 to May 28, 1938, inclusive, amounted to $7,167.51, of which 15.9 per cent represented purchases shipped to the plant from outside the State of Pennsylvania. The respondent employs approximately 75 employees at its Wash- ington, Pennsylvania, plant. In its answer and exceptions, the respondent denies that it is engaged in interstate commerce, but during the first hearing counsel for the respondent admitted, "after going more thoroughly into the matter," that it was subject to the jurisdiction of the Board. II. THE ORGANIZATION INVOLVED International Association of Cleaning and Dye House Workers, Local No. 9, is a labor organization affiliated with the American Federation of Labor, admitting to membership employees of the respondent exclusive of supervisory employees. It is the successor to Cleaners & Dyers Union, Local 18300, affiliated with the American Federation of Labor. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion In August 1937 steps were taken by the Union, whose jurisdiction extends over territory within a 100-mile radius of Pittsburgh,' to organize employees of the cleaning and dyeing industry in Wash- ington, Pennsylvania. Julius Octavi, organizer and secretary- treasurer of the Union, and Nathan Weiner, business agent, conferred in Washington with Fred Sweeney, former president of an extinct local of Cleaners & Dyers Union, affiliated with the American Federa- tion of Labor, confined in jurisdiction to Washington, with which the respondent and other cleaning plants in Washington had pre- viously had contractual bargaining relations. Sweeney told them that the possibilities of organizing were very good, and that David Resnick, senior partner of Resnick Cleaners & Dyers and at all times mentioned herein the general manager in charge of the respond- ent's plant, had asked him to renew the charter of the defunct Washington local. Octavi and Weiner thereupon informed the respondent, through Sweeney, that they would attempt to revive the Washington local and requested the respondent to send its employees 4 The Union is also generally known as the "Pittsburgh Local." RESNICK CLEANERS & DYERS, INC. 695 to a union meeting in the Washington County Courthouse. The respondent complied with the request and told its employees to attend this meeting. At the meeting, held in the latter part of August 1937, approximately 50 employees of the, respondent were present, in addition to several employees from one or two other Washington cleaning and dyeing establishments. Several of the .respondent's foremen, including John Dash, though.not eligible to membership in the-Union, likewise attended 5 Octavi and Weiner spoke and sought to learn whether the employees desired to affiliate with the Union or to renew the charter of the defunct Washington local. John Dash then addressed the meeting and stated : "We do not want to affiliate with Local. No. 9 in Pittsburgh but want. to have a local in Washington so that we can spend the money the way we see fit, and not let the Pittsburgh people spend our money for us." Only a few of the respondent's employees joined in the discussion, .and only three, Helen Marmos, Lucille Martin, and Rose Mancuso, joined the Union that evening. A short time thereafter, the respondent called a meeting of its employees in the plant after working hours. There, Mark Goldstein, a brother-in-law of David Resnick and an employee of the respond- ent, related to the employees an alleged personal experience he had had with a union in Boston, where, he stated, as a result of the activity of the union, his cleaning establishment had been shut down and employees had lost their jobs. He cautioned the respondent's employees against racketeers and advised them not to join the Union. David Resnick also spoke at the meeting, warning the employees, among other things, that it would be foolish to join the Union, which was "handled by a bunch of racketeers," that he would close his plant before he would recognize the Union, and that if they joined the Union they would lose their jobs. Subsequently, none of the .respondent's employees, not even those who had already joined the Union, attended a union meeting scheduled to be held at the Wash- ington County Courthouse on September 16, 1937, to which employees of the respondent were invited by mailed notices and for which the announced speaker was the secretary-treasurer of International Association of Cleaning & Dye House Workers. In January 1938 the Union renewed its organizing efforts among the respondent's employees. It sent letters to employees of the re- spondent urging them to organize, particularly in view of the attitude of - the respondent manifested in an enclosed handbill, which had been generally distributed by the respondent and which stated, inter alia, that the respondent favored and approved of organized labor, that there were no strikes or labor trouble at its Peter Pan stores s For discussion of the supervisory status of John Dash and others, see infra. 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or its plant, and that pickets in front of its stores had been placed there by competitors. A series of union meetings was thereafter held in various private homes. As a result, membership in the Union increased until the latter part of February 1938, at which time the respondent discharged eight employees. Three additional employees were discharged soon after in March. As we find below, nine of these employees were discharged by the respondent. because of their membership in and activity on behalf of the Union .6 Union members consequently began to absent themselves from union meetings and several sent in their resignations. Believing that the discharges were discriminatory, the Union, in accordance with its practice in such circumstances, submitted. a pro- posed collective bargaining contract to the respondent in order to secure recognition of the Union and. reinstatement of the discharged employees. The respondent at all times failed to meet or negotiate with the union representatives despite their repeated attempts to secure a conference. Instead, the respondent, on about March 19, 1938, called a meeting of its employees at its plant during working hours. David Resnick told the assembled employees that he had received a contract from the Union and asked them to indicate to him by a show of hands whether or not they desired to join the Union and thus wished him to sign the contract. The employees present unanimously voted against the Union and the contract. At no time during the meeting was the contract produced, read, or explained. After the vote, Resnick stated that he would sell all he had to fight the Union. He also reiterated at this meeting that "if anybody wanted to join the Union, they would be .fired, and he was prepared to protect us [the employees] from the .Union." Pursuant to a strike vote taken by employees of the respondent who were members of the Union, the Union called a strike and formed a picket line on March 21, 1938, to enforce its, demands, particularly to secure the reinstatement of the discharged employees and protect its members against future discriminatory discharge. At that time, about 23 of the respondent's employees were members of the Union. The strike was still in progress at the time of the first hearing. Immediately after the commencement of the strike the respondent caused the following advertisement to appear in the Washington Observer, a newspaper circulating in Washington, Pennsylvania : STATEMENT TO THE PUBLIC FROM RESNICK AND PETER PAN CLEANERS AND THEIR EMPLOYEES We wish to make a statement to the public to inform them as to the circumstances surrounding this so-called strike at our See Section III B, infra. RESNICK CLEANERS & DYERS, INC., 697 plant this morning. A strike has been called at our plant without the knowledge and consent of our employees by the Pittsburgh Local of Cleaners & Dyers. On Friday, March 18, 1938, we received a contract through the mail to our surprise from the, International Cleaners & Dye House Workers Local No. 9 of Pittsburgh, Pa., requesting that it be signed and returned by Saturday, March 19; otherwise a strike would be called. This contract was submitted by us to all our employes and they all denied any knowledge of this contract and unanimously rejected. it, stating that they did not want any connection with any cleaners union operating from any county outside of Washington. Most of our employes, who have been with us for the last ten year.3, stated that so far they have been able to take care of their griev- ances amicably and without the interference of some outside agitators or instigators of competitive fields, and that this strike has been called against their wish and without their consent. The Resnick and Peter Pan Cleaners wish to state that they are always willing to deal with their employes or their chosen. representatives and that since they have been in business, they have never had any labor troubles. We have always paid fair wages and have always given our employes better working con- ditions than most plants in this business. We have no strike at our plant and we are going to protect the interests of our employes to the best of our ability. We have never denied our employes the right to organize and we are entirely in sympathy with organized labor where the. organization is voluntary and its policies are determined by the local members and not by professional agitators or organizers. In spite of the fact that many of our 186 employes have been intimidated by some strong arm men, they have all with the exception of one truck driver, reported to work as usual. (Signed) RESNICK AND PETER PAN CLEANERS. DAVID RESNICK, President. ARTHUR RESNICK, Manager. MONDAY, MARCH 21, 1938. Substantially the same "Statement to the Public" was inserted by the respondent in the Sunday, March 27, 1938, issue of The Pittsburgh Press, a newspaper likewise circulating in Washington. A number of witnesses for the Board testified, and we find ,° that on numerous occasions from about the time the Union began its organizing campaign until the time of the strike, and continuing thereafter, the respondent, through David Resnick and supervisory 7 The evidence and contentions of the respondent to the contrary are discussed below. 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . employees, expressed to its employees its unmistakable opposition to the Union., Thus, David Resnick told various employees that if they joined the Union, they would be discharged, or he would be compelled to shut his plant down, that the Union was no good and was "nothing but a bunch of racketeers." Arthur Resnick, son of David Resnick and assistant manager of the respondent, as well as John Dash and Claude Moore, foremen, made coercive statements of a similar nature to various employees. And Nick Barlow, an employee who testified on behalf of the respondent, admitted that David Resnick once called upon him to tell the assembled employees of his experience with a union at another plant. It is, moreover, clear that the respondent actively sought during this period to ascertain the membership and activities of the Union, for on "numerous" occasions, Claude Moore asked Theodore Holmes, a union member who was subsequently discriminatorily discharged by the respondent," whether he knew anything about the members of the Union; and Arthur Resnick, at a time prior to the meeting at which Goldstein spoke, requested another employee, Roosevelt Graves, to report to him any conversations among employees concerning the Union, under the implied threat that "it would be better for [Graves] and [his] job." In April 1938, about two or three weeks after the beginning of the strike, Octavi and Weiner, officials of the Union, called at the home of Mary Yarklin,° then employed by the respondent, to urge her to join the Union and the strike. Other employees of the respond- ent were also present, including Amelia Janowsky, Anna Gravel, and her daughter, Mildred Gravel, all of whom lived in the same house, which was owned by Anna Gravel. As the union officials were pre- paring to leave, two employees of the respondent, Dominick Greco and Spike Innis, came into the Yarklin apartment and told the union officials : "Get the hell out of here and stay out and do not bother these people." Arthur Resnick, who had come with Greco and Innis, remained in the yard outside the apartment with a gun in his hand. After Octavi and Weiner had departed in an automobile, Arthur Resnick ordered Greco and Innis to follow them, the three men reentered their own automobile, pursued, the union officials to the home of another employee of the respondent, and finally drove off1° The next morning, when Mary Yarklin returned to work at the plant, Arthur Resnick told her that she should have told Greco and Innis the night before, when they had questioned her, that the union officials 8 See Section III B, infra. 8 Also referred to in the record as Mary Yakrlin. 20 The conflicting evidence concerning this incident is discussed below. RESNICK CLEANERS & DYERS, INC. 699 were bothering her, since under those circumstances, Greco and Innis "would have had the right to crack them over the head." Many of the foregoing findings were disputed at the hearings by witnesses for the respondent. It was uncontroverted, however, that at the Washington County Courthouse meeting in August 1937, fore- men of the respondent were present and that one of them, John Dash, expressed to the assembled employees clear opposition to their atl=ilia- tion with the Union and his approval of a Washington local; " that shortly thereafter, a brother-in-law of David Resnick spoke disparag- ingly of, and cautioned employees assembled in the plant against, the Union ; that none of the respondent's employees attended a sub- sequently scheduled meeting of the Union; that at no time prior to asking the employees to vote upon the union contract in March 1938 did David Resnick produce, read, or explain any provision of the proposed contract ; and that the respondent inserted in several news- papers a "Statement to the Public" which misrepresented that the respondent had "submitted" the proposed union contract to the em- ployees, which plainly expressed the respondent's hostility to the Pittsburgh Local, and which sought to alienate the respondent's em- ployees from the Union by referring to its organizers as "outside agitators or instigators of competitive fields," and implying that it was not a "voluntary" organization and that its policies were de- termined by "professional agitators or organizers" rather than by "the local members." The respondent nevertheless urges, in '.its brief, that it was "in favor of a union and that it was left to the employees to make their own decision thereto." In support of its contention, the respondent points to the undisputed facts that it urged its employees to attend the first organizational meeting in August 1937; that David Resnick told Weiner, the union official, in January 1938 that if the Union secured his employees as members he would sign with the Union and that Resnick also suggested that Weiner send letters to the em- ployees, which was done ; that in March 1938, the respondent sought the opinion of its employees when it.asked them whether they wished the respondent to sign 'the proposed union contract; and that the assembled employees then voted unanimously against recognition of the Union. The respondent further seeks to support this contention by reference to the testimony of _ a number of its witnesses who of- fered versions of certain events varying from the findings-of fact which we have set forth above. We turn now to a consideration of "Although the respondent contends that it has no supervisory employees other than David Resnick , it does not deny that persons whom we find below . to be foremen , including John Dash , were present at the meeting and that John Dash spoke in the manner indi- cated above. 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the testimony concerning these events; namely, the speech of Mark. Goldstein, the various alleged anti-union statements and threats made by the respondent, and the incident at the home of Mary Yarklin. Although Goldstein admitted speaking to employees of the re- spondent concerning his unfavorable experience with a union, he testified that these statements were made to a group of employees at the request of one of them, Theodore Holmes, after the general meeting of employees had broken up and David Resnick, who had not known Goldstein would speak, had left the room. David Resnick likewise denied that he was present when these remarks were made, that he had authorized them, or, indeed, that he had any knowledge of this meeting. However, an employee who testified on behalf of the respondent, as well as a number of Board witnesses, testified that David Resnick was present at the meeting at which Goldstein spoke to the assembled employees. Holmes denied that he had requested Goldstein to make any remarks. And neither Goldstein nor Resnick offered any explanation as to why the meeting of employees was called. Under all the circumstances, like the Trial Examiner, we cannot credit the version of this event presented by Goldstein or the denials offered by David Resnick. Nor can we give substantial weight to the categorical denials of David Resnick and of a large number of other witnesses for the respondent that David Resnick or anyone acting on behalf of the respondent ever in any way coerced, intimidated, or urged the re- spondent's employees not to join the Union. Practically all these denials were made by persons presently in the employ of the re- spondent, were general, and pro forma. They are in conflict with much credible and mutually corroborative testimony of witnesses for the Board, with the testimony in at least one instance of a witness for the respondent,12 and With testimony that was not specifically denied.13 Moreover, we find, as did the Trial Examiner, that the credibility of witnesses for the respondent who made these denials, in general, was clearly impaired; much of their testimony was badly, shaken on cross-examination, and the testimony of the numerous wit- 22 Thus, Nell Ruth Zeker, an employee and witness for the respondent, testified that after Goldstein made his speech at the plant meeting, which was antagonistic to. the Union, David Resnick spoke to the assembled employees and asked them "if we [the employees] still wanted to belong to a union." 13 As, for example, the testimony concerning the speech of John Dash, one of the respondent's foremen, at the meeting at the Washington County Courthouse in August 1937. It is also significant to note that in its exceptions to the supplemental Interme- diate Report, the respondent took no specific exception to the Trial Examiner's findings that at the meeting called by David Resnick after be received the proposed. union con- tract, he "informed employees that he was not against organized labor but indicated he opposed union racketeers" and "that he would protect them from a racketeering union." RESNICK CLEANERS & DYERS, INC. 701 nesses who appeared at the second hearing was not only contra- dictory, as among themselves, but was also, in an apparent attempt to "cure" a supposed deficiency in the respondent's defense, in strik- ing conflict with that presented by the respondent's witnesses at the first hearing.14 Finally, these denials are highly inconsistent with 'the general picture of the respondent's antagonism to the Union pre- sented by the uncontroverted evidence previously described." A version of the incident at Mary Yarklin's home, differing ma- terially from that which we have found above, was likewise given by several of the respondent's witnesses. Dominick Greco testified that he saw the union organizers in April 1938 while, in company with Spike Innis, he was visiting Anna Gravel for "just a social call and a bottle of beer"; that no threats were made; that the union organ- izers left soon after; that neither he nor Innis followed them by automobile ; and that Arthur Resnick was not present. On cross- examination, Greco did not remember whether he saw the Yarklins that evening, although it is clear that the union officials were visiting the Yarklins in their apartment. Anna Gravel, also employed by the respondent, generally corroborated Greco's direct testimony, but on cross-examination, proved to be vague and uncertain, contradicted herself several times, and took refuge in an assertion that she re- membered nothing that had occurred in April 15 Arthur Resnick 14 Although the witnesses for the respondent at the first hearing, including David Resnick, Anna Resnick , and others , all testified that at - the meeting called by David Resnick after his receipt of the proposed union contract , David Resnick himself asked the employees to vote by raising their hands on the question of whether or not they wanted the Union, and was present when they voted , most of the respondent 's witnesses at the second hearing testified to different effect, presumably to vitiate the possible inference that David Resnick's presence influenced or coerced the expression of the employees ' choice. They testified variously that only one vote was taken by the raising of hands after David Resnick left the room and was under the direction of Nell Zeker , who was supposed to report the result to David Resnick ; or that two votes were taken , one in the presence of David Resnick and the second immediately after in his absence, with Nell Zel:er presiding; or that the two votes were taken on different days; or that three votes were taken : or even that the employees "voted on paper," not by raising of hands , and that Nell Zeker brought the results to Resnick . Significantly enough, Nell Zeker herself, testifying at the first hearing , stated that there was , one vote by hand under the direction and in the presence of David Resnick . Moreover, on cross-examination, many of the respondent 's witnesses at the second hearing testified to a version of the incident which differed materially from that to which they had testified on direct examination. 11 Mrs . Gravel's testimony at this point was as follows : Q. (By Mr. Dorsey ) You testified on direct examination that something hap- pened in the month of April on a certain night. What night in April was it? A. I don't know. Q. You don't know. How did you know that when counsel for-respondents was referring to it? A. I don 't know what that means. Q. What is that? A. I don't know what that means. Q. As I recall it, counsel for the respondents said to you , "Now, I want you to remember," or "Do you recall a certain night in April?" and you ' said "Yes," 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testified that he had never visited the home of Anna Gravel, and that, although he had owned an automatic pistol, it was stolen from his automobile in March 1938, a_ few days prior to the strike. All the above testimony stands in contrast to the credible, mutually corrobo- rative testimony of the union organizers, of Mary Yarklin, of her husband, of Alphonso Gravel, son of Anna Gravel, and of three other Board witnesses., Moreover, the respondent made no attempt specifi- cally to controvert the testimony of Lucille and Betty Alsko, former employees of the respondent, that one night in April 1938 Arthur Resnick, seated in an automobile with Dominick Greco, Spike Innis, and others, drove up and asked them the direction taken by the auto- mobile of the union organizers, Octavi and Weiner. Under all the circumstances, like the Trial Examiner, we are not persuaded by the testimony of the respondent's witnesses concerning the whole incident. The respondent also contended at the hearing that it had no supervisory employees and hence could not be held responsible for the conduct .of alleged foremen or supervisory employees. Thus, David Resnick testified that aside from himself and Anna Resnick "there is no other boss in the plant," which consists of three buildings ; and Arthur Resnick, John Dash, and Claude Moore denied that they had supervisory status since they merely performed duties assigned to them by David Resnick. However, David Resnick admitted that his son, Arthur Resnick, has the title of "Assistant Manager" of the respondent, that John Dash is "head of The cleaning department," that when he [David Resnick] left on vacation in January 1938, his son was in charge of the . plant, and that, upon his return, his son and Moore reported to him on the conduct of employees. Arthur and then you went on to tell what happened that night. I want to know how It Is you knew what night it was. A. I don't know what that ,mean, I don't understand. Q. Do you want an interpreter? A. I don't understand that. Q. How was it you understood what night in April counsel for the respondent- that is Mr. Weiner-when he was talking to you? A. Yes. Q. He said to you "On a certain night, I want you to recall a certain night in April," and you clearly recalled that night, didn't you? A. I' don't know nothing about. Q. Do you know anything that happened in April? A. No. Q. You don't know anything that happened in the month of April? A. No. Q. That is all. Counsel for the respondent thereafter sought, by leading questions, to nullify this admission. 16 Octavi' s testimony that the union organizers were followed by an auto occupied by Arthur Resnick, Greco, and Innis is further supported by the fact that as early as April 22, 1938, soon after the Yarklin incident , Octavi wrote to the Pennsylvania Bureau of Motor Vehicles and learned , by a telegram introduced in evidence ; that the license num- ber he had noted on the automobile which followed him and Weiner had been issued to Mary Greco . mother of Dominick Greco. RESNICK CLEANERS & DYERS, INC. 703 Resnick admitted he was the "Assistant Manager," gave orders to others when he was told to do so by David Resnick, and that he had recommended the lay-off of certain employees to his father upon the. latter's return from his vacation. John Dash admitted he was "the head cleaner"; and Claude Moore admitted that he frequently repri- manded pressers, that he was-paid for whatever time he spent, pursu- ant to David Resnick's orders, in seeing that others did their work properly, and that he frequently reported on the work of others to David Resnick. Other witnesses for the respondent admitted being hired by, or receiving orders from, Arthur Resnick, that Claude Moore is occasionally a "floorwalker" and "has charge of" the press- ing department, that John Dash is "boss of silk," and that John Barley is the "head spotter." 'Indeed, one of the respondent's wit- nesses admitted that she had been told by David Resnick, during a recess at the hearing, to testify that David Resnick "is the only boss." And the uniform testimony of witnesses for the Board was that the above-named persons were foremen or supervisory employees 17 Under the circumstances, like the Trial Examiner, we can hardly credit the respondent's contention that it had no supervisory em- ployees. We find that Arthur Resnick, John Dash, Claude Moore and John Barley were, at all times mentioned herein, supervisory employees of the respondent, that their acts, statements, and conduct reflected the respondent's hostility to the Union, and that the respondent is answerable for the conduct of these supervisory em- ployees in their relations with the ordinary employees .18 Thus, it is clear from all the evidence, and we find, as did the Trial Examiner, that the respondent, while pretending to be friendly to "organized labor" and in the guise of a self-appointed protector of its employees against "racketeering" unions, actively instituted measures designed, on the one hand, to coerce its employees either to organize an autonomous Washington local, distinct and apart from the Pittsburgh Local, or not to organize at all, and, on. the other, to obstruct and prevent the successful culmination of the organizing efforts of the Pittsburgh Local. Therefore, having been informed that a meeting would be held at which the defunct Washington local might be revived, the respondent directed its employees to attend. At the meeting the respondent, through the presence of several fore- men, sought to intimidate its employees and, through an address of 17 It is interesting to note that the respondent, in its briefs, no longer argues that it has no supervisory employees. 18 See International Association of Machinists, Tool and Die Makers Lodge No. 35, affiliated with the International Association of Machinists , and Production Lodge No. 1200, affiliated with the International Association of Machinists v. N. L. R. B., 110 F. (2d) 29 (App. D. C.), aff'g. Matter of The Serrick' Corporation and International Union, United Automobile Workers of America, Local No. 459, 8 N. L. R. B. 621. 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD one of the foremen, expressed its opposition to their affiliation with the Pittsburgh Local and the respondent's approval of the revival of a Washington local. Thereafter, at a meeting in the plant, the respondent, through David Resnick, identified the Union with "racketeers," warned its employees against, and threatened to dis- charge them if they joined, the Pittsburgh Local, and to close the plant rather than recognize it; through Resnick's brother-in-law, the respondent repeated and illustrated its warnings about "racketeers." That these measures were proving effective is indicated by the failure of any employee, even those who had joined the Union, subsequently to attend a scheduled meeting of the Union of which they had been notified. Renewed organizing efforts of the Union beginning in January 1938 were met by numerous . anti-union threats and warnings against "racketeers" by David Resnick and supervisory employees, by the respondent's close surveillance of union members and activity, and, as we find below, by the respondent's discriminatory discharge, for union membership or activity, of nine employees. Upon the receipt of a proposed union contract, the respondent failed to negotiate with the Union but instead asked its employees, at a meeting called in the plant during working hours for that purpose, to express their opinion thereon in the intimidatory presence of David Resnick, Anna Resnick, and supervisory employees. Upon the calling of a strike by the Union, the respondent continued its campaign of coercion and intimidation by inserting statements in newspapers with local circula- tion in which it again expressed its hostility to the Pittsburgh Local, calling the Union's officials "outside agitators or instigators of com- petitive fields" and implying that the Union was under the domina- tion of "professional agitators" rather than of local members. Al- though the respondent professed to a union official its willingness to sign with the ' Union if its employees became members, it sought continually, by the above methods,. to prevent its employees from joining the Union. And finally, after the strike was in progress, the respondent sought to intimidate union organizers by exhibiting a show of force, and by threatening and trailing them. We find that by each of the afore-mentioned acts and statements, and by the afore-mentioned course of conduct, the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them in Section 7 of the Act.. B. The discriminatory discharges The complaint alleges that on various dates between February 18 mnd March 17, 1938, the respondent discriminatorily discharged RESNICK CLEANERS & DYERS, INC. 705 Robert Campbell,' Theodore Holmes, Roosevelt Graves, Nathaniel Johnson,19 Rose Mancuso, Lucille Martin, Hattie Bell Keene,20 Harry Meredith, George Riley, Mary Kovall, and Curtis Henderson, thereby discouraging membership in the Union. The Trial Examiner sustained the allegation as to seven of these persons but not as to Keene, Meredith, Kovall, and Henderson. The respondent initially contends that it had no knowledge that any of the persons named in the complaint were members of, or active on behalf of, the Union. In support of this contention it urges the fact that most of the persons allegedly discriminated against testified that they never informed David Resnick that they were members of the Union and both David and Anna Resnick denied the possession of such knowledge. . However, as we have already described, the re- spondent, through Arthur Resnick and Claude Moore, sought, on a number of occasions prior to the discharges, to ascertain the member- ship and activities of the Union. That these efforts were fruitful and continuous may be perceived from the fact that Arthur Resnick, was aware of the presence of the union organizers at the Yarklin apartment and, accompanied by two other employees of the respond- ent, was able, as' stated above, to follow the organizers to that apart- ment and thereafter to the home of another employee. Moreover, almost without exception, the persons named in the complaint were active in soliciting other of the respondent's employees to join, and at least one of these persons informed a foreman of. his membership in the Union.21 It is a reasonable inference under all the circum- stances, and we find, that the respondent could have learned, sought persistently to learn, and did learn of the union membership and activities of the employees named in the complaint. The respondent also contended, in its answer, that one of the rea- sons for the discharges in February and March 1938 was that they were warranted by "business conditions," and that "due to the con- tinuance of said business conditions, the said employees whose employment was so terminated have not been replaced by the employ- ment of any new employees to take their place or places." It is uncontroverted that a number of those discharged were told, at the time of termination of their employment, that they were being laid off until further notice because.of lack of work. And David Resnick testified that none of the employees who were discharged or laid off were replaced'22 that 7 or 8 persons were hired by the respondent after 19 Also referred to in the record as Nathan Johnson. 20 Also referred to in the record as Hattie Keen. 11 These facts are specifically set forth below in the statement of the union activities of the respective individuals alleged to have been discriminatorily discharged. 22 Claude Moore, foreman in the pressing department, similarly testified that no one has been employed to replace the 6 pressers who were among the 11 persons laid off or discharged. 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the lay-off of the aboved-named 11 employees only in order to protect the plant against numerous fires which had. broken out after the beginning of the strike. It is clear, however, that the respondent's busy season began, in 1938, at least 2 weeks before Easter, which fell on April 17, and continued until at least the middle of May. Records compiled by the respondent itself show that at least 40 additional persons were employed for plant operations from March 12 to July 14, and that the number of persons on the plant pay roll rose from 74 on February 19 and 68 on February 26, to 100 on April. 9 and 77 on June 30. Nevertheless, none of the employees laid off or discharged in February and the early part of March were recalled to work, despite the prior practice of the respondent generally to observe the principle of seniority in lay-offs and in rehiring. Anna. Resnick, an owner of the respondent, testified that the persons named in. the com- plaint were laid off only "because they were not producing the work properly," that she knew this because David Resnick "always tells me what goes on," and that she could not explain why these persons were told that they were being. laid off because of lack of work. In view of these facts, we find there is no merit in the defense that persons named in the complaint were laid. off due to lack of work. That the respondent appears to have itself abandoned this defense is indicated by the fact that it no longer urges it in its several briefs but claims only that the employees were discharged generally for incompetence or insubordination. We turn now to a consideration of the facts concerning each of the alleged discriminatory discharges. Robert Campbell. Campbell was hired in June 1937 as a dry cleaner's helper and was discharged on February 18, 1938.. He joined the Union on February 15, 1938, thereafter attended union meetings and actively solicited other employees to join prior to his discharge. On February 18, 1938, David Resnick brought a pair of torn trous- ers to Campbell, who was in the cleaning room, and said, "Bob, we can't stand this. I'll have to let you ' go," and thereupon discharged him. It was conceded by witnesses for the respondent that clothing is frequently torn in the cleaning room, either in the machine or in the. process of extracting garments from the machine, and that since two other men performed the same work as Campbell, responsibility for tears could not, in the absence of direct observation, be attributed to any one person. No evidence was adduced definitely to establish Campbell's responsibility for the particular tear, or even that the tear had occurred in the cleaning room; indeed, neither David Resnick, .Nick Barlow, the head cleaner, nor other witnesses for. the respondent ever saw Campbell actually tear any clothes. Although a few wit- nesses for the respondent who 'did not work in the cleaning room RESNICK CLEANERS & DYERS; INC. 707 testified that they had heard David Resnick reprimand Campbell because of torn clothes, two head cleaners with whom Campbell had worked, as well as other witnesses for the respondent, admitted that Resnick had not singled out Campbell and rebuked him individually' but had rebuked the group of cleaners generally. We therefore credit Campbell's testimony that he had never .been personally repri- manded, but that Resnick had warned all the cleaners as a group, in the fall of 1937, against tearing garments while extracting them from the machine. Campbell had, prior to. his discharge, received two wage increases within a period of 2 months 23 and had never. been laid off. 24 We are of the opinion and we find that prior to his membership. in and. activity on behalf, of the Union, Campbell was considered a good employee, and that the respondent discharged Campbell because of his union membership and activity. By discharging Campbell, the respondent discriminated in regard to his hire and tenure of employment, thereby discouraging membership in the Union and interfering with, restraining, and coercing its employees in the exer- cise of the rights guaranteed in Section 7 of the Act. Campbell desires to return to his former position in the employ of . the respondent. The pressers. On February 19, 1938, Claude Moore, foreman in the pressing department, informed Theodore Holmes, Roosevelt Graves, and Nathaniel Johnson, rough pressers, and Rose Mancuso, Lucille Martin, and Hattie Bell Keene, silk pressers, that they were laid off until further notice because of lack of work. None of these employees was subsequently recalled to work. At the time of termi- nation of their employment, the busy season preceding Easter was about to begin. As we have found above, there is no merit in the respondent's contention that any employees were then laid off due to lack of Work .25 22 David Resnick testified that raises were given to employees automatically every 6 months. Witnesses for the Board, however, denied that raises were automatic and pointed to instances of persons who did not receive such raises. Under all the circum- stances, particularly in view of the failure of the respondent to produce company records or corroborative evidence hearing on this contention, we cannot credit Resnick's testi- mony. In any event, Campbell's two 'raises were both received within a period of 2 months, indicating the satisfactory nature of his work. 24 It is interesting to note that despite Campbell's alleged incompetence, David Resnick testified he was willing to reemploy Campbell on different work and counsel for the respondent, in a brief submitted to the Trial Examiner, states that the respondents "were willing and are still willing to rehire .. . Campbell." 25 The respondent's records show that in the week of February 21, 1938, there were 25 employees and 8 so-called "apprentices" engaged in pressing, and that in the week of April 11, 1938, there were 27 employees and 19 so-called "apprentices" engaged in this work. The "apprentices" generally received less wages than other employees ; in about four instances, "apprentices" were "regular helpers" who had been previously laid off and were recalled for Easter. 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the hearing, the respondent contended that the chief reason for the discharge of the above-named pressers was their incompetence or insubordination, that for this reason Arthur Resnick recommended to his. father, upon the latter's return from his vacation in February 1938, that they be laid off until they learned their lesson, and that they were discharged a few days later. We turn now to a considera- tion of the facts concerning each of the respective rough pressers. Theodore Holmes began to work for the respondent as a rough presser in August 1935. He joined the Union in December 1937, attended union meetings and prior to his discharge solicited members for the Union from among his fellow employees. On a number of occasions his foreman, Moore, asked Holmes if he knew anything about members of the Union. Two or three days before his discharge, Holmes showed his union membership card to Moore. Moore there- upon called him a "fool," said he would report the matter and see that Holmes was discharged. In the 21/2 years he had worked for the respondent, Holmes had never been laid off. He testified that of -the- 12 rough pressers; he had more seniority than most, and several were retained who had less seniority, that no complaints were ever made to him individually concerning his work, that he used no vile language in the plant, and that he had received four wage increases, the last one in October or November 1937. During the winter Holmes received 57 cents an hour from the respondent, and during the summer, $25 weekly. In February 1938 he was earning approximately $21 a week. He desires reinstatement to his former position with the respondent. Nathaniel Johnson was employed -by the respondent as a rough presser in August 1935. He joined the Union the last week in December 1937, attended union meetings, and requested other em- ployees to join the Union. Except for a 1-week vacation, Johnson worked steadily from August 10,'1935, to the date of his discharge on February 19, 1938. He testified that at the time of his discharge only one rough presser had more seniority than he had, that he had never used vulgar lan- guage or been personally reprimanded, David Resnick having only rebuked a group of about 12 or 15 pressers as a whole for "double creasing" of trousers, and that he had received four wage increases, the last one in the fall of 1937. Johnson was paid 57 cents an hour during the slack season, when he worked from 48 to 60 hours a week, and $25 a week during thr;' busy season.. In February 1938, he was earning about $21 weekly. He desires reinstatement to his former position:. RESNICK. CLEANERS & DYERS, INC. 709 Roosevelt Graves began to work for the respondent as a rough presser in August 1936. He joined the Union in December 1937, attended union meetings and solicited members for the Union from among the respondent's employees prior to his discharge. In about September 1937, Arthur Resnick had requested Graves to report to him any conversations among employees concerning the Union. Graves testified that prior to his discharge, he had never been laid off, and that there had never been any complaints about his work or his conduct in the plant. He received the same wage increases received by Holmes and Johnson. During the. busy season Graves was paid $24 weekly ; during the slack season he received 55 cents an hour. In February 1938, he was earning about $24 a week. He desires to return to his former posi- tion at the plant. At the first hearing, witnesses for the respondent testified generally that Holmes, Johnson, and Graves were frequently reprimanded by David.Resnick and others for their bad or careless work; that on these occasions the men used vile language or were indifferent; that they did not attend strictly to their duties but instead threw buttons and garments about.- At the second hearing, in addition to testify- ing generally to this effect, witnesses for the respondent presented for the first time varying testimony as to other alleged types of mis- conduct on the part of Holmes, Johnson, and Graves. Thus it was testified that they frequently drank liquor or were drunk in the plant; and on one occasion it was necessary to send home either Graves or both Holmes and Graves because of intoxication. One of the re- spondent's witnesses who had been employed by the respondent since Y" Moore , foreman in the pressing department , as well as other witnesses for the re- spondent at the first and second hearings , admitted that defective pressing and repri- mands to pressers were common in the plant. One of the respondent 's witnesses who worked as a presser in the plant for almost 3 years , testified as follows on cross- examination : Q. (By Mr. Dorsey) You worked three years, Ann, and in that period of time hasn't it been quite customary for Mr. Resnick to reprimand any number of employees because of the work they turned out? A. (By Ann Steratore) Yes. Q. Did you ever hear Mr. Resnick discharge anybody for double pressing a suit? A. No. If the suits they press are not right and they don 't do what he tells them, he ought to. Q. Did you ever hear him discharge them for that specific reason? A. No. Q. Does he discharge everyone for double pressing? A. Not if they know bow to do it. Q. Does be discharge everybody who breaks a button? A. No, he does not. Q. That is one of the things that happens in pressing establishments such as Resnick 's, isn't it? A. That's right. Q. That is, it is a part of the business that at certain times employees might double press and break buttons, isn't that correct? A. That's right. 283035-42-vol. 24--4 6 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1935 and who worked about 12 feet from the' three men testified that she never saw them drink liquor in the plant or observed them being sent home for being intoxicated. Another witness, on the other hand, testified that the men repeatedly drank liquor in the plant in 1936 and 1937 as well as prior to their discharge in 1938. This same wit- ness, upon cross-examination, after maintaining that David Resnick sent Holmes and Graves home for being intoxicated at a time when David Resnick was in Florida, finally explained that Resnick could have communicated his order to the plant in Washington by tele phone. Witnesses for the respondent further testified at the second hearing that at one time the men were reprimanded by David Resnick for wearing shorts while working beside a number of girls. On cross-examination, however, it was testified that this event occurred in the summer of 1937 and that girls working in the plant during periods of intense heat often wore shorts and halters. And one of the respondent's witnesses even testified that Holmes, Johnson, and Graves "double-creased" trousers every day during 1936, 1937, and 1938, and that David Resnick used to rebuke them for it three or four times a week in 1936, 1937, and 1938. Johnson and Holmes, in rebut- tal, denied each of the above allegations of misconduct. We have already adverted to the lack of credibility manifested generally by, witnesses for the respondent at the second hearing.27 No less was this lack of credibility manifested with respect to their testimony concerning Holmes, Johnson, and Graves. The strength of .much of this testimony was greatly weakened by cross-examination and by the mutual inconsistencies and contradictions of these wit- nesses. Moreover it is significant to note that neither David Resnick nor any other witness for the respondent at the first hearing claimed that the drinking of liquor or the wearing of shorts was a reason for the discharge of the three rough pressers. And we find it particu- larly difficult to believe that the respondent would have maintained in its employ and would have granted a number of wage increases to employees who did bad work every day for a period of over 2 years and who were reprimanded therefor three-or four times a week dur- ing this entire period. Further striking inconsistencies in the re- spondent's position appear in the fact that the sole reason advanced to the employees at the time of their discharge was lack of work whereas the chief reason advanced at the hearings was their incom- petence or insubordination, and in the fact that despite the respond- ent's contention and its abundant testimony concerning the alleged misconduct and inefficiency of Nathaniel Johnson, David Resnick tes- 27 See footnote 14, supra. RESNICK CLEANERS & DYERS, INC. 711 tified that he was willing to reemploy Johnson at his former position in the plant .211 Under the circumstances we cannot credit the testimony of the. respondent's witnesses concerning the alleged misconduct of Holmes, Johnson, and Graves. We accept as true the testimony of the Board's witnesses set forth above, and find to be facts the matters set forth in such testimony. Accordingly, we find that the respondent dis- charged Holmes, Johnson, and Graves because of their union mem- bership and activities. By these' discharges, the respondent discrim- inated, in regard to their hire and tenure of employment, thereby discouraging membership in the Union and interfering with, restrain- ing, and coercing its employees in the exercise of the rights guaran- teed in Section 7 of the Act. We turn now to a consideration of the facts concerning each of the discharged silk pressers. Rose Mancuso began to work for the respondent as a silk presser in August 1935. She was one of the first to become a member of the Union, having joined at the close of the organizational meeting ii August 1937 after speaking at the meeting, in the presence of several of tho respondent's foremen, of what she termed the "sweatshop" conditions at the respondent's plant. Thereafter she attended union meetings and asked other employees to join.' Mancuso testified that there had never been any complaints about her work, and that, except when ill, she had worked steadily since she was hired. She denied ever being' reprimanded for "being un- steady in attending to work." In August 1937 she received a $2 weekly wage increase. During the slack season, Mancuso was paid 34 cents an hour; during the busy season, she received $15 weekly. In January and February 1938, she was earning from about $9 to $15 weekly. She desires to return to her former position in the plant. Lucille Martin was hired by the respondent as a silk presser in August 1935. Like Rose Mancuso, she joined the Union at the close of its first organizational meeting in August 1937, after having similarly addressed the meeting in the presence of several foremen. She thereafter asked other employees to join the Union. Prior to her discharge, Martin had never been laid off by the re- spondent. Moreover, she testified that no complaint was ever' made concerning her work and denied that she had burned dresses or put In a brief, submitted to the Trial Examiner, counsel for the respondent states : "it is very significant to note the real attitude of the respondents when they were willing and are still willing to rehire Johnson, Campbell, Riley and Curtis Henderson, but not the others by reason of their utter incompetence, insolence and disregard for their work." 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD aside dresses which, were difficult to press. She received a $2 weekly wage increase in the fall of 1937. Martin received $15 weekly during the busy season and 34 or 35 cents an hour during the slack season. In January and February 1938, she was earning from about $12 to $15 weekly. She desires re- instatement to her former position with the respondent. Hattie Bell Keene began to work for the respondent as a silk presser in September 1936. She joined the Union in December 1937, attended union meetings, but did not ask other employees to join the Union. Keene had been laid off by the respondent before, in about December 1936, but had been recalled during the busy Easter season of 1937. She admitted that some time around January 1938, Arthur Resnick rebuked her for not "putting out enough clothes," although she testi- fied that she thought she had then been "putting out" as many gar- ments as other girls. She denied that she was ever reprimanded by David Resnick or Moore for scorching dresses. Keene received $13 weekly during the busy season and 30 or 35 cents an hour during the slack season. In January and February 1938, she was earning from about $10 to $13 a week. She desires reinstatement to her former position in the plant. Witnesses for the respondent testified variously, at the first hear ing, that Mancuso, Martin, and Keene were frequently reprimanded for talking too much, loafing and eating lunches on company time, and for their bad work, which included stretching of sleeves, scorch- ing dresses, ripping of seams, attempting to avoid the pressing of "specials," which had to be done quickly, and of dresses difficult to press. At the second hearing, other witnesses for the respondent testified to similar effect as to Mancuso and Martin. No further testimony was presented as to Keene, however, the Trial Examiner having meanwhile recommended in his Intermediate Report that the complaint be dismissed ' in so far as it alleged her discriminatory discharge. The value of much of this testimony at both hearings was greatly diminished by cross-examination, these same witnesses admitting, inter alia, that all employees make mistakes, that all are, on occasion, reprimanded for bad work, that dresses are scorched very often, that other girls quite frequently try to avoid doing "specials" or difficult dresses, and that sometimes stretching sleeves "can't be helped." Witnesses for the respondent also testified that Mancuso and Martin repeatedly ate lunches on company time for a period of 2 years before their discharge, and that these girls were continuously reprimanded by David Resnick in 1936, 1937, and 1938, one witness testifying that rebukes for various reasons occurred at least three times a week in 1936 and 1937, and more often in 1938. RESNICK CLEANERS Sc DYERS, INC. 713 As in the case of the rough pressers previously, discussed, we do not -find it possible to believe, as the respondent would have us believe; that Mancuso and Martin would have been steadily retained in the respondent's employ and given a wage increase, if; during a period of almost 3 years, David Resnick himself was compelled to repri- mand them for their inefficiency or insubordination at least three times each week. Under all the circumstances, we cannot credit the testimony of the respondent's witnesses that Mancuso and Martin were continually inefficient and insubordinate. We accept as true the testimony of the Board's witnesses set forth above, and we find to be facts the matters set forth in such-testimony. Accordingly, we find that the respondent discharged Mancuso and Martin because of their union membership and activities. By these discharges, the re- spondent discriminated in regard to their hire and tenure of em- ployment, thereby discouraging membership in the Union and inter- fering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. We are not satisfied, however, that Hattie Bell Keene was dis- charged because of her union membership or activity. Keene herself :admitted, and we find, that unlike Mancuso and Martin, she had been reprimanded for her low output, that she had been previously laid ,off and was recalled during the succeeding busy season, and that She had not asked other employees to join the Union. Furthermore, there is no evidence that she ever received a wage increase from the respondent. Harry Meredith. Meredith was first employed by the respondent, as a hat blocker, in September 1937 and was discharged on February 22, 1938. He joined the Union in the first week of February 1938, thereafter attended union meetings, and asked one other employee to join the Union. At the hearing Meredith first testified that there had been no complaints about his work. On cross-examination, however, Mere- dith admitted, and we find, that his employment had previously been terminated on January 11, 1938, and that he had been rehired .a week later by Arthur Resnick at a reduced salary with the warn- ing that if there were any more complaints regarding his work, he would again be discharged. Meredith testified that on the date of his final discharge David Resnick informed him that he was pleased with his work, that there was no further work to be done, and that Meredith would be recalled later on. David Resnick, on the other hand, testified that Meredith was discharged a second time on February 22 -because complaints concerning his work had continued after Meredith had been rehired. An employee who, among other things, had helped to -block hats similarly testified that Meredith 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had been frequently reprimanded for burning sweat bands and blocking hats improperly. Under the circumstances, we are in agreement with the Trial Examiner and are not satisfied that Meredith was discharged for union membership or. activity. George Riley. Riley began to work for the respondent as a silk spotter in March 1936 and was "laid off" on March 14, 1938. He joined the Union in December 1937, attended union meetings and urged other employees to join. On March 14, 1938, his foreman, John Dash, told him that "work was getting slack and they would have to lay [Riley] off for a period of time." This "lay-off" was highly unusual both because it occurred at the beginning of the pre-Easter busy season, and because among the five silk spotters, Riley was third in seniority and the two silk spotters with less seniority were retained.29 Moreover, a former employee, Arthur Riddle, who had not worked for the respondent for 5 or 6 months, was rehired on the next day to perform work previously done by Riley. Riley was never thereafter recalled to his former position, although David Resnick had told him at about the time of his "lay-off" that he would "put [Riley] back to work" when business "picked up." The respondent does not deny that Riley's services had been satis- factory, that he had never been reprimanded or previously laid off, and that he had received five salary increases, the last one in Febru- ary 1938. The respondent contends, however, that Riley was never discharged, that he was only laid off for a couple of weeks, that it is still willing to reemploy him, and that after his lay-off he did not accept David Resnick's offer that he work temporarily as a painter on Resnick's farm. Riley testified that Resnick offered to give him the painting job for a few weeks if Riley could secure another painter to assist him, and that he did not secure another painter. In any event, we deem it immaterial that Riley did not accept an offer of a temporary position completely different in kind and location from the position which he had formerly occupied. We are of the opinion, under all the circumstances, that Riley was discharged from his position as silk spotter because of his union membership and activities. By discharging Riley, the respondent discriminated in regard to his hire and tenure of employment, thereby discouraging membership in the Union and interfering with, re- straining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. At the time of his discharge, Riley was earning $18 a week. Eight days thereafter he secured a position in Toronto, Ohio, at which m As we have already stated , the respondent had generally observed the principle of seniority in lay-offs. RESNICK CLEANERS & DYERS, INC. 715 he was earning $22 a week at the time of the hearing. The record does not reveal the nature of his present work.. Riley desires re- instatement to his former position with the respondent because his expenses of living in and near Washington, Pennsylvania, are about $5 less each -week than his expenses in Toronto, Ohio. Mary Kovall. Kovall began to work for the respondent as a rough spotter in February 1937 and her employment continued until her discharge on March 14, 1938. She had joined the Union on March 10, 1938, attended two union meetings; and asked another employee to join. Kovall testified that on March 14, during the busy season, her foreman, John Dash, told her that she was laid off because "work was slack" and that she would probably be recalled within a week. On the other hand, David Resnick testified that she was discharged because she was frequently absent on busy days and used to loaf in the plant. Kovall denied that there had ever been any complaints about her work or that she remained away on busy days and testi- fied that she had been absent from work on only two occasions, once from March 23, 1937, to April 8, 1937, when she was ill, and aa second time when she did not work for. 5 or 6 days during the period following the Easter rush in 1937, after which she was re- called to work. The respondent produced no evidence, aside from the above testimony of David Resnick, to establish its contentions concerning Kovall's frequent absences and bad work. Upon the basis of the entire record, we cannot accord substantial weight to the unsupported statements of David Resnick. We consequently find that at no time prior to her discharge was Kovall's work criti- cized and that her last absence from the plant occurred almost a year prior to her discharge. In the light of all the facts, we find that Kovall was discharged because of her union membership and activities. By her discharge, the respondent discriminated in regard to her hire and tenure of employment, thereby discouraging member- ship in the Union and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. Kovall was paid 27 cents an hour by the respondent during the slack season, and $12 a week during the busy season. She desires reinstatement to her former position with the respondent. Curtis Henderson. Henderson began to work for the respondent as a washer boy in the cleaning room in August 1937; This em- ployment continued until January 5, 1938, when he sustained in- juries in the scope of his employment and began to receive workmen's compensation. He had joined the Union on December. 20, 1937,, and attended union meetings, even after he ceased work; in January.. On 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD March 17, 1938, after he had recovered from his injuries, Henderson reported for work, but was told by his foreman, John Dash, that his services were no longer required. Henderson thereupon visited David Resnick in the latter's home and was told that the respondent had not been able to wait until Henderson returned to work. Sev- eral days later, Henderson joined the Union's picket line. There is no evidence that Henderson was not a satisfactory worker. Indeed, he had received a $2 salary increase, and David Resnick testified that he would reemploy Henderson if he were needed for different work. Although Henderson's case is not free. from doubt, under all the circumstances, particularly the respondent's active hostility to the Union and union members, the fact that a large number of new employees were hired by the respondent for the Easter rush after Henderson's discharge, and the respondent's failure to rehire Hen- derson despite its profession that it would reemploy him if other work were available, we are persuaded and find that his discharge was due to his membership in the Union. By discharging Hender- son, the respondent discriminated in regard to his hire and tenure of employment, thereby discouraging membership in the Union and interfering with, restraining, and coercing its employees in the exer- cise of the rights guaranteed in Section 7 of the Act. At the time Henderson ceased work for the respondent he was earning $17 a week. He desires to be reinstated to his former position. C. Employees who went on strike As indicated above,30 the Union called a strike on March 21, 1938, chiefly because the respondent had discharged a number of employees in February and March and in order to protect its members against future discrimination. In Section III, A and B, above, we have found that by discharging each of nine of these employees, and by various other acts prior to March 21, the respondent had engaged in and was engaging in unfair labor practices. Accordingly, we find that the strike which commenced on March 21, 1938, was caused by the aforesaid unfair labor practices of the respondent. The respondent, while admitting that a strike was called by the Union on that date, contends that none ,of its employees participated in the strike. Aside from persons whom we have found to have been discriminatorily discharged and who consequently retained their status of "employees," 31 the record shows, and we find, that a num- 81 See Section III A. $' Section 2 (3) of the Act. RESNICK CLEANERS & DYERS, INC. 717 ber of the respondent's employees joined the strike and were still striking at the time of the hearing32 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 and have led to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act, and to restore as nearly as possible the conditions which existed prior to the commission of the unfair labor practices. We have found that the respondent discriminatorily discharged Robert Campbell, Theodore Holmes, Nathaniel Johnson, Roosevelt Graves, Rose Mancuso, Lucille Martin, George Riley, Mary Kovall, and Curtis Henderson. Accordingly, we shall order the respondent to offer them reinstatement to their former or substantially equiva- lent positions, without prejudice to their seniority and other rights and privileges. We shall further order the respondent to make them whole for any loss of pay they have suffered by reason of their dis- charges : by payment to Robert Campbell, Theodore Holmes, Nathan- iel Johnson, Roosevelt Graves, Rose Mancuso, Lucille Martin, and George Riley of a sum of money equal to the amount which each of them would normally have earned as wages from the date of his or her discharge to the date of the offer of reinstatement; and by pay- ment to Mary Kovall and Curtis Henderson of a sum of money equal to the amount which he or she would normally have earned as wages from the date of his or her discharge to the date of the Intermediate Report, and from the date of the Order herein to the date of the offer of reinstatement ;33 less net earnings during said periods. 34 82 Octavi, a union official and organizer, estimated that there were about 28 employees on strike at the time of the hearing. Moreover, several witnesses employed prior to the, strike testified, without contradiction, that they had left their positions with the respond- ent to go on strike after March 21. 1938. 13 See Matter of D. R. Haffelfinger Company, Inc. and United Wall Paper Crafts of North America, Local No. 6, 1 N. L. R. B. 760. 34 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 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. Direct 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We have further found that the strike of the respondent's em- ployees on March 21, 1938, was caused by the respondent's unfair labor practices. We shall order the respondent, upon application, to reinstate to their former or substantially equivalent positions, with- out prejudice to their seniority and other rights or privileges, those of its employees, aside from those listed in the previous paragraph, who went on strike. Such reinstatement shall be effected in the following manner : All persons hired after March 21, 1938, and who were not on the pay roll as of that date, shall, if necessary to provide employment for those to be offered reinstatement, be dismissed. If thereupon, by reason of a reduction in the force of employees needed, there is not sufficient employment immediately available for the re- maining employees, including those to be offered reinstatement, all available positions shall be distributed among such remaining em- ployees in accordance with the respondent's usual method of reducing its force, without discrimination against any employee because of his union affiliation or activities, following a system of seniority to such extent as has heretofore been applied in the conduct of the respond- ent's business. Those employees remaining after such distribution, for whom no employment is immediately available, shall be placed upon a preferential list prepared in accordance with the principles set forth in the previous sentence, and shall thereafter, in accordance with such list, be offered employment in their former or in substan- tially equivalent positions, as such employment becomes available and before other persons are hired for such work. Our Order will also provide that the above employees be made whole for any wages lost by reason of the respondent's refusal to reinstate them for the period beginning 5 days after the date of application to the date of offer of 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. 18 409, 5 N. L. It. B. 52, amending 1 N. L. R. B. 989. Unemployment compensation benefits are similar in purpose and effect to home- relief payment, and, therefore, are not deductible. Matter of Pennsylvania Furnace and Iron 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- Arkansas Coach Lines, Inc. and The Brotherhood of Railroad Trainmen , 7 N. L. R. B. 186; Matter of West Kentucky Coal Company and United Mine Workers of America, District No . 23, 10 N. L. It. B . 88. Nor are monies received as disability compensation from the Veterans ' Administration of the United States Government to be considered "earnings" and deductible. Cf. Matter of Louis Hornick & Company, Inc . and Textile Trimming Workers Union, Local 2410, United Textile Workers 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 Fed- eral, 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 govern- ments which supplied the funds for said work-relief projects. Republic Steel Corporation, et al . v. N. L. R . B. et al., 107 F. ( 2d) 472 ( C. C. A. 3 ), enf'g as mod. as to other issues 1` Matter of Republic Steel Corporation and. Steel Workers' Organizing Committee, 9 N. L. R. B . 219, cert. denied ,' 309 U. S . 684, May 20, 1940. RESNICK CLEANERS & DYERS, INC. 719 reinstatement or placement upon a preferential list, as set forth above, less net earnings 35 during said period.3e Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following; CoNCLUsIONS of LAW 1. International Association of Cleaning and Dye House Workers, Local No. 9, is a labor organization, within the meaning of Section 2 (5) of the Act. and 2. The respondent, by discriminating in regard to the hire and tenure of employment of Robert Campbell, Theodore Holmes, Na- thaniel Johnson, Roosevelt Graves, Rose Mancuso, Lucille Martin, George Riley, Mary Kovall, and Curtis Henderson, thereby discour- aging 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. 5. The respondent, by discharging Hattie Bell Keene and Harry Meredith, has not engaged in unfair labor practices, within the mean- ing of Section 8 (3) 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, Resnick Cleaners & Dyers, Inc., David and Anna Resnick, trading and doing business as Resnick Cleaners, and David and Anna Resnick, individually, their officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in International Association of Cleaning and Dye House Workers, Local No. 9, or any other labor organization, by discharging any of its employees, or in any other man- 88 See footnote 34, supra. 36 See Matter of Oregon Worsted Company and United Textile Workers of America, Local 2435, 3 N. L. R. B. 36, enf'd, N. L. R. B. v. Oregon Worsted Company, 96 F. (2d) 193 (C. C. A. 9) ; Matter of Biles-Coleman Lumber Company and Puget Sound District Council of Lumber and Sawmill Workers , 4 N. L. R. B. 679, enf'd, N. L. R. B. v. Bile8- Coleman Lumber Company, 98 F. (2d) 18 (C. C. A. 9). 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ner discriminating in regard to hire or tenure of employment or any term or condition of employment; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through rep- resentatives of their own choosing, and to engage in concerted activ- ities for the purposes of collective bargaining and other mutual aid and 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 Robert Campbell, Theodore Holmes, Nathaniel John- son, Roosevelt Graves, Rose Mancuso, Lucille Martin, George Riley, Mary Kovall, and Curtis Henderson immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges; (b) Make whole the said Robert Campbell, Theodore Holmes, Nathaniel Johnson, Roosevelt Graves, Rose Mancuso, Lucille Martin, George Riley, Mary Kovall, and Curtis Henderson for any loss of pay they have suffered by reason of their discharges : by payment to Robert Campbell, Theodore Holmes, Nathaniel Johnson, Roosevelt Graves, Rose Mancuso, Lucille Martin, and George Riley of a sum of money equal to the amount which each of them would normally have earned as wages from the date of his or her discharge to the date of the offer of reinstatement; and by payment to Mary Kovall and Curtis Hen- derson of a sum of money equal to the amount which he or she would normally have earned from the date of his or her discharge to the date of the Intermediate Report and from the date of this Order to the date of the offer of reinstatement; less net earnings 117 during said periods; deducting, 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 government or governments which supplied the funds for said work-relief projects; (c) Upon application, offer to its employees who went on strike, and each of them, aside from those listed in paragraphs 2 (a) and (b) above, immediate and full reinstatement to their former or substan- tially equivalent positions, without prejudice to their seniority or other rights or privileges, in the manner set forth in the section entitled "The remedy" above, placing those employees for whom employment is not immediately available upon a preferential list in the manner set forth in said section, and thereafter, in said manner, offer them employment 37 See footnote 34, supra. RESNICK CLEANERS & DYERS, INC. 721 a;s it becomes available; making whole the said employees, and each of tl iem, for any loss they may suffer by reason of any refusal of their al iplication for reinstatement as in this paragraph provided, by pay- m' ent to each of them, respectively, of a sum of money equal to that w hich each would normally have earned as wages during the period fr om a date 5 days after the date of application to the date of offer o'f reinstatement or placement upon a preferential list, as set forth al)ove, less his net earnings 38 during said period; deducting, however, from the amount otherwise due each of them, monies received by each during said period for work performed upon Federal, State, county, municipal, or other work-relief projects,, and pay over the amount so deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which s)npplied the funds for said work-relief projects; (d) Post immediately in conspicuous places in the respondent's plant, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating: (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a) and (b) of this Order; (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a), (b), and (c) of this Order; and (3) that the re- spondent's employees are free to become or remain members of Inter- national Association of Cleaning and Dye House Workers, Local No. 9, and that the respondent will not discriminate against any em- ployee because of membership or activity in that organization ; (e) Notify the Regional Director for the Sixth Region in writing, within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed in so far as it alleges that the respondent has discriminated in regard to the hire and tenure of employment of Hattie Bell Keene and Harry Meredith. MR. EDWIN S. SMITH, concurring in part and dissenting in part : I concur in the entire decision except that part which holds that Hattie Bell Keene was not discharged because of her union member- ship or activity. She was discharged at the same time as the other five pressers. Like them, she was told that she was being laid off until further notice because of lack of work, although the defense of lack of work was fully disproved at the hearing and apparently abandoned by the respondent itself. For these reasons I believe that we should find that Keene, like the other pressers, was discriminatorily dis- charged. 88 See footnote 34, supra.