The Federbush Co., Inc.

In the Matter of THE FEDERBUSH CO., INC. and UNITED PAPER WORK- ERS, LOCAL 292, AFFILIATED WITH THE UNITED PAPER, ENVELOPE AND Toy WORKERS' INTERNATIONAL UNION, C. I. 0. Case No. C-1859.-Decided August 00, 1941 Jurisdiction : loose-leaf binder manufacturing industry. Unfair Labor Practices Interference, Restraint, and Coercion: anti-union statements. Statements which were normally calculated to reach the employees and discourage them from joining or assisting the union constitutes interference with and restraint of employees in violation of 8 (1), although made to the union's business manager, who was not an employee of the respondent. Discrimination: inducement of employee to resign by notifying him of imminent discharge, because of his union activities ; charge of insubordination as to one employee a pretext and not the real reason for his discharge, which was in fact motivated, by employee's union activities ; discharge of an employee because of union activities rather than negligence ; two employees in fact discharged because of union activities, rather than laid off because of lack of work and told to report in 2 weeks, as alleged by employer. Remedial Orders : reinstatement with back pay from date of discharge to date of offer of reinstatement ordered as to three employees who desire reinstatement; back pay from date of discharge to date upon which other employment was obtained ordered as to one employee who does not desire reinstatement; reinstatement, upon his application within 30 days after his future discharge from army, ordered as to employee who enlisted in army after his discharge by employer; back pay ordered to be paid to latter em- ployee both for period between date of discharge by employer to date of enlistment, and for period between date 5 days after his timely application for reinstatement after his discharge and date of offer of reinstatement. Mr. Daniel R. Dimick, for the Board. Mr. Irving D. Springer, and Mr. Jacob E. Hurwitz, of New York City, for the respondent. Mr. Moses C. Weinmzan, of New York City, for the Union. Miss Mary E. Perkins, of counsel to the Board. 34 N. L. R. B., No. 75. 539 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION AND ORDER STATEMENT OF THE CASE Upon amended charges 1 duly filed by United Paper Workers, Local 292, affiliated with the United Paper, Envelope and Toy Work- ers' International Union, C. I. 0.,2 herein called the Union, the Na- tional Labor Relations Board, herein called the Board, by the Acting Regional Director for the Second Region (New York City), issued its complaint dated January 25,1941, against The Federbush Co., Inc., of New York City, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor prac- tices 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, accom- panied by notice of hearing, were duly served upon the respondent and the Union. With respect to the unfair labor practices, the complaint alleged in substance (1) that the respondent discouraged membership in the Union by discharging 5 named employees on specified dates,3 and thereafter refusing to reinstate them, because they joined or assisted the Union or engaged in concerted activities for the purposes of col- lective bargaining or other mutual aid or protection; (2) that the respondent from about January 18, 1940, has urged, persuaded, and warned its employees to refrain from aiding, or becoming or remain- ing members of, the Union, and has threatened its employees with discharge or other reprisals if they aided the Union or its members; and (3) that by the foregoing and other acts, the respondent has interfered with, restrained, and coerced its employees in their exer- cise of the rights guaranteed in Section 7 of the Act. On February 10, 1941, the respondent filed its answer denying that it had engaged in any of the alleged unfair labor practices and making affirmative allegations discussed more specifically hereinafter. 'The original charge was filed on August. 1, 1940; amended charges were filed on Sep- tember 25, 1940; and further amended charges , upon which complaint issued, were filed November 8, 1940 2 The original complaint named the Union as United Paper Workers, Local Industrial Union No. 292, affiliated with the C I. 0., but it, appears that this name was changed, at a conference late in 1940, to that appearing in the heading. 8 Anthony Bartolo, February 9, 1940 ; Louis Cantor, February 17, 1940 ; Hyman Kravitz, February 16, 1940 ; Anthony Napoli, February 6, 1940 ; and Joseph Russo, February 9, 1940. Pursuant to a ruling granting a motion to conform the pleadings to the proof, the com- plaint was amended to change the dates of the alleged discriminatory, discharges as follows : Bartolo, February 15, 1940; Cantor, February 23, 1940; Kravitz, May 10, 1940; Napoli, February 1, 1940; and Russo, March 12, 1940. THE FEDERBUSH CO., INC. 541 Pursuant to notice, a hearing was held at New York City, from February 6 to 15,1941, before Gustaf B. Erickson, the Trial Examiner duly designated by the Chief Trial Examiner. The Board, the Union, and the respondent were represented by counsel and partici- pated in the hearing. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce 'evidence bearing upon the issues. On February 10, 1941, the respondent filed a motion for a bill of particulars. This motion was denied by the Trial Examiner.4 At the close of the Board's case, and again at the close of the hearing, the respondent moved to dismiss the complaint. The Trial Examiner reserved his ruling on this motion, and denied it in his Intermediate Report. At the close of the hearing the Trial Examiner granted without objection the Board's motion to amend the pleadings to con- form to the proof in respect to such matters as names and dates.5 During the course of the hearing the Trial Examiner made several rulings on other motions and on objections to the admission of evi- dence. The Board has reviewed all the rulings of the Trial Examiner, and finds that no prejudicial error has been committed. The rulings are hereby affirmed. On April 10, 1941, the Trial Examiner filed his Intermediate Report, copies of which were duly served on the respondent and the Union, in which he found that the respondent had engaged in and was engag- ing in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act. The Trial Examiner recommended that the respondent cease and desist from the unfair labor practices found, offer reinstatement to Louis Cantor, Hyman Kravitz, and Joseph Russo, make whole Anthony Bartolo, Anthony Napoli, Louis Cantor, Hyman Kravitz, and Joseph Russo for loss of pay suffered as a result of the respondent's unfair labor practices, and take certain other action appropriate to remedy the situation brought about by the respondent's unfair labor practices. Thereafter, the respondent filed its exceptions to the Intermediate Report, and a brief in support of its exceptions: On May 29, 1941, pursuant to notice duly served upon the respondent and the Union, a hearing for the purpose of oral argument was held before the Board in Washington, D. C. The respondent was represented by counsel, and participated in the hearing. The Board has fully considered the re- spondent's exceptions and its brief in support thereof and, to the' * The Trial Examiner. advised the respondent 's counsel that the respondent would be afforded a reasonable period of time to prepare a defense to any material matters, upon a showing that it had been surprised as to them . No claim of surprise was thereafter made by the respondent. 6 The correct name of the claimant Bartolo is Intrabartolo. The name Bartolo is used herein because that was the name used throughout his employment with the respondent, and at the hearing. 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD extent that the exceptions are inconsistent with the findings of fact, conclusions of law, and the 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 6 The Federbush Co., Inc., is, and has been since September 19, 1932, a corporation duly organized under and existing by virtue of the laws of the State of New York, having its principal office and place of business at 91 Seventh Avenue, New York, New York. The respondent is engaged in the manufacture, sale, and distribu- tion of loose-leaf devices and related products. The principal raw materials used by the respondent in the operation of its business are leather, imitation leather, canvas, paper, board, cloth, and metals. During the year 1939, the respondent purchased raw materials in the value of $125,000, of which approximately 60 per cent were shipped from points outside the State of New York. During the same period, the respondent manufactured finished products in the value of over $300,000, of which approximately 50 per cent were shipped to points outside the State of New York. The respondent is engaged in inter- state commerce within the meaning of Section 2 (6) and (7) of the Act.' H. THE ORGANIZATION INVOLVED United Paper Workers, Local 292, affiliated with the United Paper, Envelope and Toy Workers' International Union, C. I. 0., is a labor organization affiliated with the Congress of Industrial Organizations. It admits to membership employees of the respondent's New York City plant. III. THE UNFAIR LABOR PRACTICES A. The officers and supervisory employees of the respondent The respondent's officers are Charles Federbush, president; Irving Federbush, secretary; and J. D. Federbush, treasurer. Irving Feder- bush is the general manager of the respondent's plant. Max Feder- bush is assistant to Irving in the order department. Max was presi- 6 The facts set forth- in this section are taken from a stipulation between counsel for the Board and counsel for the respondent. ' The respondent stipulated that it was "engaged in commerce within the meaning of Section 2 of the National Labor Relatigns Act" and that the jurisdiction of the Board was not contested. THE FEDERBUSH CO., INC. 543 dent of the respondent's predecessor, Federbush Brothers Looseleaf Company, Inc. During the strike, hereinafter' described, Max served several summonses on strikers and, as he testified, "locked up a couple of people during the strike." Sam Federbush is superintendent or foreman of the respondent's bindery department. Nathaniel Feder- bush is in charge of the respondent's stamping department. Irving Federbush testified that only he and Charles were authorized to speak for the respondent on labor relations and labor policies and that Max, Sam, and Nathaniel had no such authority. However, it is well settled that the respondent is answerable under the Act for statements and acts directed to its employees by each of its agents named above by virtue of their positions and functions." Besides the Federbushes,9 there are other supervisory employees, some of whom will be mentioned hereinafter. B. Background On June 18, 1940, the Board issued a Decision and Order against the respondent herein in Matter of The Federbush Co., Inc. and United Paper Workers, Local Industrial Union No. 292, affiliated with the C. I. 0.10 The Union which filed the charges in that case is the same as the charging union herein. In the Decision in the former case, the Board stated, among other things-: We find that the respondent, by making anti-union statements to its employees, by disparaging the leaders of the-Union and their motives, by threatening to close the plant part of the year if the employees organized, by watching and following the union or- ganizers, and by otherwise interfering with their efforts to con- tact the employees, has interfered with, restrained and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. and We find that on October 27, 1939, and at all times thereafter, the respondent refused to bargain collectively with the Union as the 8 See H J Heinz Co. v N L R B, 311 U S 514, affirming 110 F. (2d) 843 (C C. A 6), enforcing the order in Matter of H. J. Heinz Company and Canning and Pickle Workers, Local Union No. 325, etc., 10 N. L. R. B 963; N. L. If. B. v. Link-Belt Co., 311 U. S. 584, reversing modification of Board's order in Lank-Belt Co. v. N. L. R. B., 110 F. (2d) 506 (C. C. A 7), enforcing as modified the order in Matter of Link-Belt Company and Lodge 1604 of Amalgamated Association of Iron, Steel and Tin Workers of North America, etc., 12 N L R B 854. 9 Because there are six Federbushes , they will sometimes hereinafter be called by their first names 1124 N. L R B 829 The hearing in that case was held from February 15 to Feb- ruary 23 , 1940. On September 16, 1940, the Board filed a petition with the United States Circuit Court of Appeals for the Second Circuit for enforcement of the order in that case. On July 18, 1941, the court rendered its decision enforcing the Board's order in full. N. L R B. v. Federbush Co, Inc. (C. C. A. 2), decided July 18, 1941. 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exclusive representative of its employees in an appropriate unit with respect to rates of pay, wages, hours of employment, and other conditions of employment, and that the respondent has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Evidence of certain incidents which afford a background to the alle- gations of the complaint herein, but which occurred prior to the hearing in the earlier case, was introduced for the first time at the hearing in the instant case. These incidents are set forth below. On October 27, 1939, 48 of the 50 production and maintenance employees of the respondent went on strike. During the strike, the respondent continued to operate its plant with the aid of strike- breakers. Max Federbush operated a delivery truck for the respond- ent during the strike. In performing this function, he had ample opportunity to observe the conduct of the strikers. Although he tes- tified that he had two unnamed strikers "locked up" for tampering with Sam Federbush's automobile, he testified that the strikers "were very nice to me, all the boys." To the following question later asked by the respondent's counsel: At times during the strike there was violence, wasn't there? Max replied : Oh, yes, sometimes; not very often. It was conducted very peaceably; Sometimes they got a little wild; when they had a couple of strange faces, then there used to be trouble, but when the regular fellows were around it was all right. Nevertheless, on November 9, 1939, the respondent mailed the following letter to each of its striking employees : NOTICE TO OUR STRIKING EMPLOYEES Your attention is directed to a part of the decision reported in the New York Times this morning, concerning reinstatement of Republic Steel employees. In this case the court sustained the Company's right to refuse reinstatement to strikers who have resorted to violence. While it is our intention to fully comply with the law, and when and if requested, will reinstate to his former position each* of our striking employees, we will, nevertheless, fully preserve our legal rights in connection with employees who resort to violence. The sole purpose of this notice is to curb further violence. THE FEDERBUSH COMPANY, INC. THE FEDERBUSH CO., INC. 545 During the second or third week of the strike, Hyman Kravitz, a picket captain whose alleged discriminatory discharge is hereinafter discussed, observed Sam Federbush motioning to one of the strikers to enter the building in which the plant is located. When Kravitz informed the striker of 'Sam's purpose, Sam brought a policeman on duty at the entrance of the building and requested the policeman to arrest Kravitz for calling him names. Kravitz denied the charge and was not arrested. There is considerable other evidence, discussed in part below, indicating that the respondent attempted to discourage strike activity by making vague and unsubstantiated charges to the police against strikers. Frank Grasso, the Union's manager, testified that he held almost daily conversations with Max Federbush during the strike and that Max told him on a number of occasions "he knew the active leaders of the strike because he had planted some spies." Anthony Bartolo testified that Max once asked him, while Bartolo was on the picket line during December : Wouldn't it be nice to be working in a warm shop instead of be- ing broke and fighting for something you will never get? Max testified that he never spoke to Grasso "about any labor policies" at any time, although he admitted having frequent conversations with Grasso; and he denied knowing Bartolo. The Trial Examiner did not credit Max Federbush's testimony in this respect and found that Max made the above statements substantially as they were attributed to him by Grasso and Bartolo. We adopt this finding. On January 17, 1940, the Union telegraphed the respondent as follows : UNION WILL TERMINATE STRIKE PENDING LABOR BOARD DECISION ON UNFAIR LABOR PRACTICE CHARGES. STRIKING EMPLOYEES WILL UNCONDI- TIONALLY APPLY FOR REINSTATEMENT ON JANU- ARY 18 AT 9 AM. Within a week all the striking employees had been reinstated. When the striking employees returned to work on and immediately following January 18, 1940, they found the following notice on the .respondent's time clock : NOTICE To Employees: In order to prevent internal disputes, and ineffi- ciency, all employees will hereafter be required to carefully ob- serve the following regulations. Compliance will be strictly 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD enforced, and a violation will subject employees to immediate discharge without notice. 1. No employee shall discuss Union affairs , strike history, or labor laws in or about the Company 's premises. 2. No employee shall use abusive language , toward any other person employed by or connected with the Company, on [sic] matters what the cause and irrespective of provocation. 3. No employee shall in any manner by word or action dis- turb or interfere with the other employees during working hours. 4. All employees will be held strictly accountable for proper discipline, operating efficiency and care of the Company prop- erty. 5. No employee shall at any time or any place resort to physi- cal violence directed against any other person employed by or connected with the Company. THE FEDERBUSH C011iPANY, INC. Irving Federbush testified that this notice was posted shortly after the respondent received notice that the Union was terminating the strike and , concerning the reason for its posting, testified : The reason for it was so that when they had come back we do not have a series of discussions as to what happened and what could or should or would have happened . We accepted them back on the basis that they went out, and we desired to close the striking period of October 27 to January 18, and for that reason we suggested and demanded that there be no discussion of any kind within the shop in connection with the strike or acts of violence or fists raised at one another or disagreements between members of the Union themselves , as to what should have hap- pened and should not have happened. So I formed this letter and I posted it there just as a warning so there would be complete harmony at all times. On or about January 27, 1940, Sam Federbush told Anthony Napoli, the Union's shop chairman, whose discriminatory discharge. is discussed below , that he was not to have any further contact with the employees 'during the noon hour. Prier to the strike Napoli had talked to his fellow employees during the lunch hour without restrictions. In late January, shortly after Kravitz was rehired after the strike, Kravitz met Max Federbush and Grasso outside the plant. Kra- vitz greeted Grasso, and was about to engage in conversation with him; Max, however , intervened, telling Kravitz that he did not like the idea of Kravitz talking to Grasso. Kravitz replied that when he THE FEDERBUSH CO., INC. 547 worked in the plant he did his best for the respondent, but that what- ever he did outside of working hours was his own business. The foregoing activities of the respondent afford a useful basis for evaluating events which subsequently occurred at the respondent's plant, and which are discussed below, under Section III D. C. Interference, restraint, and coercion In March 1940, Grasso came to the neighborhood of the plant to see some of the union employees and there engaged in a conversation with Max Federbush. Grasso's testimony concerning parts of this conversation was as follows : I told him I had come down to see some of the people; that we had not lost interest in the Federbush case, the company and the employees; not so much the company, but the employees. He [Max] told me that I was wasting time. I said that it was a question of a few more weeks or months, and that we would get a ruling from the Labor Board and we were confident that we would get a fovorable ruling, and that upon that, we would then negotiate for a contract. Mr. Max Federbush told me that-well, he minimized the things that I told him and he said I was wasting time, and even if the ruling would'be in favor of the Union, the company might sit down to talk things over but that no contract would be signed, and that, after all, nothing could be done to the company to compel them to actually negotiate and sign a contract with the Union. Grasso testified further that Max told him that the respondent would still refuse to sign a contract with the Union even though the Cir- cuit Court directed the respondent to bargain collectively with the Union, and that Max further stated that "the workers were losing interest in the Union and by the time the case would come up in the Court or the Labor Board ruling would come down I would be left with no members at all." Max Federbush did not specifically deny this conversation and his denial of having any conversations with Grasso concerning "labor policies" has already been discredited The respondent argues that, since Grasso was not an employee of the respondent, Max's statements to him cannot be considered a restraint or coercion of its employees, and hence do not constitute a violation of the Act. We find the respondent's contention to be without merit. An employer may make his opposition and hostility to a union known to his employees in many ways other than by stating it to them personally. Max's statements, made to the Union's organ- 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD izer, were of a character normally to be calculated to reach the employees and to discourage them from joining or assisting the Union. We find that by Max's statements to Grasso the respondent has inter- fered with, restrained, and coerced its employees in their exercise of the rights guaranteed in Section 7 of the Act. D. The discriminatory discharges To the allegation of the complaint that Bartolo, Cantor, K ,avitz, Napoli, and Russo were discriminatorily discharged, the respondent made a general denial.'' The respondent also asserted in its answer that these employees "by reason of their failure to act in good faith and within a reason- able time after the alleged discharges are guilty of lathes." This contention we find to be without merit. The equitable principle of lathes is not applicable to proceedings brought by the United States Government in the public interest; 12 moreover, the record does not establish any unreasonable delay in the filing of charges in this case. The record shows that Grasso, the Union's manager, con- ferred with Hurwitz, the respondent's attorney, immediately after the filing of the Intermediate Report in the earlier case, on April 9, 1940; and again after the issuance of the Decision on June 18, 1940; and that Hurwitz informed Grasso that the question of the discharges would be easily disposed of once the respondent could be made to realize that it had to bargain collectively in good faith with the Union. On June 29, 1940, the Board's Regional Director in New York informed Grasso that the respondent was still considering the dis- position of the former case. In July 1940, the respondent notified the Regional Director that it would not comply with the Board's former Decision and Order. Thereafter, on August 1, 1940, the Union filed the first charges of discrimination, naming all the em- ployees considered herein. Contrary to the respondent's contention that all of the strikers participated equally in the strike activities both in fact and so far 11 Affirmative defenses to the individual cases will be discussed below. 12 See Matter of Colorado Milling & Elevator Company and Denver Trades and Labor Assembly, 11 N. L. R. B. 66, in which the Board stated : ... The Board acts in the public interest to effectuate an important national policy designed to eliminate the causes of certain obstructions to the free flow of commerce by the mitigation and elimination of unfair labor practices which tend to cause in- dustrial stiife and unrest. Such benefits as the Board 's remedial orders confer upon individual employees are only incidental to the exercise of its power to effectuate the policies of the Act by remedying conditions created by unfair labor practices It is well settled that the equitable prihciple of laches is not applicable to the government acting in the public interest. See also Matter of Mooremack Gulf Lines, Inc. and Commercial Telegraphists' Union, Marine Division, Affiliated with the A F. of L , 28 N. L. R. B. 869. THE FEDERBUSF3 Co., INC. 549 as the respondent knew, the record establishes that the five employees allegedly subject to discrimination after the strike had been among the most active union members and strikers. Napoli joined the Union on July 14, 1939, and shortly before the strike he was elected shop chairman of the Union. As shop chairman, Napoli had several conferences with representatives of the respondent before the strike. Bartolo, Cantor, Kravitz, and Russo joined the Union on various dates between September 31 and October 18, 1939. The record discloses no unusual concerted activity on their part prior to the strike. At the beginning of the strike, the Union selected a special strike committee composed of Napoli, Kravitz, and one Weinstein. During the strike Napoli presided at union meetings and took his turn at picketing and carrying a placard. Kravitz was elected picket cap- tain the day the strike was called and as such he saw that the pickets were assigned to their posts at appropriate times during the day and helped run the food kitchen for the pickets. Bartolo engaged in picketing beyond the average time allotted the strikers and volun- teered as a picket captain about 2 weeks after the strike began. As a picket captain he helped serve the strikers lunches at the union hall. Both Cantor and Russo carried union placards on the picket line and were paid small amounts of money by the Union for engaging in "extra" picketing, i. e., picketing beyond the amount ordinarily allotted to or done by the average striker. Each of the five claimants came into direct contact with one or more of the respondent's officers or supervisory employees in con- nection with their strike activities. As described above, Max Feder- bush made a statement to Bartolo when he was picketing which dis- couraged picketing and concerted strike activity. On another occa- sion Sam Federbush was escorting strikebreakers into the plant; Bartolo, who was then in the picket line, was about to speak to the strikebreakers when Sam said : "Get the hell out of here, you Guinea s. o. b." Both Bartolo and Cantor were arrested upon the represen- tation of Max Federbush that they had deflated the tires of Samuel Federbush's automobile. The cases against them were dismissed. Once when Cantor called to some strikebreakers in Sam Federbush's presence at the entrance to the plant, Sam told him : "Go whiff ' your- self." Sam attempted, as described above, to have Kravitz arrested, allegedly for calling him names. Once when Max Federbush was en- gaged in delivering merchandise during the strike, Kravitz followed him in a taxi and when both stopped at a red light, Max informed a policeman that Kravitz was following him. Kravitz testified that on this occasion, as the truck and the taxi stopped beside each other, Max "put his head out of the window and called out to me not to 451269-42-vol. 34-36 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD follow or he will fix me for it. . . . He also said that if I don't watch out, he will get even." Max denied that he ever told any of the strikers that he would "fix" them, because he had "no connection with those boys.... I am in the office." Max's testimony is gener- ally unconvincing, and he had earlier admitted that he exchanged remarks with the strikers, and had them stopped by the police when they attempted to follow him. We are of the opinion, and find, that Max threatened Kravitz substantially as testified by the latter. On one occasion when Russo and several strikers had been arrested, .Irving Federbush told the police that Russo was "the guy that causes all the trouble." On another occasion Max Federbush handed Russo a summons charging him and another striker with assaulting Bennie Krebs, the respondent's shipping clerk. Both of the charges agYainst Russo were dismissed and in each case he was released. Both Cantor and_ Russo followed J. D. Federbush and Max Federbush when these Federbush brothers were either making deliveries for the respondent or transporting strikebreakers to and from the plant. Two strikers, Silverman and Ehrenman, were called by the re- spondent and testified on direct examination that the other strikers were equally active in their participation in the strike. But on cross-examination Silverman admitted that Kravitz and one Wein- stein were strike captains and that Russo picketed more than the average striker; and Ehrenman testified that he believed Napoli and Weinstein were the strike leaders and that Kravitz was in charge of the pickets. We find that the respondent was well aware of the extensive activities of Bartolo, Cantor, Kravitz, Napoli, and Russo on behalf of the strike and the Union 13 1. Anthony Napoli Napoli was employed by the respondent on June 22, 1936, as a specialist in celluloid-index work. At that time he was promised steady employment by Nathaniel Federbush and until the strike he was steadily employed. He was the only employee capable of doing celluloid-index work annd sometimes had a helper to aid him in his work. During the course of his employment, he worked in the celluloid-index department approximately 65 per cent of the time; when the respondent had on hand no orders involving celluloid work, however, Napoli was transferred to work in other departments of the plant in order to keep him steadily employed. Between 1936 and January 30, 1939, Napoli received three wage increases. He was considered a satisfactory employee. '$ It may be recalled that Max Federbush told Grasso that Max knew the active leaders of the strike because he had "planted" labor spies. THE FEDERBUSH CO., INC. 551 As set forth above, Napoli was shop chairman of the Union, and during the strike was chairman of the strike committee. Along with the other strikers, he applied for reinstatement on January 18. Pursuant to a telegram from the respondent directing him to report to work, Napoli returned to the plant on January 26, 1940, and was assigned to his former position. However, he did not find his card in the time clock, so he asked Sam Federbush about his card. Sam told him he had the card in his possession, and according to Napoli the following conversation ensued : Then he looked at me and told me, "Drop that cigarette, I don't want you to smoke here." I says, "Why?" He says, "Well, I just don't want you to smoke here, that's all." I said: "You are smoking and my fellow workers are smoking." He says, "You never mind that, if you don't like it you can check out." He told me the shop could get along without a shop chairman. This conversation took place before a number of the other employees who were waiting for the bell to start work. When Sam was ques- tioned concerning this incident, he said that he had told employees throughout the plant not to smoke because of the fire hazard. He did not deny that he told Napoli that the plant could get along with- out a shop chairman. We find, as did the Trial Examiner, that Napoli's version of what occurred is substantially correct. The next day, when Napoli returned from lunch, he went to the locker room on the sixth floor to hang up his coat and hat. He was about to join some of the other employees who were engaged in a discussion of the notice mentioned above, which had been posted by respondent on the time clock, when Sam Federbush engaged 'Napoli in conversation. According to Napoli's undenied testimony, which the Trial Examiner credited as true, Sam told Napoli that when he returned from his lunch he was to go at once to his own department on the fifth floor; and when Napoli protested to Sam that it was his lunch period, Sam replied : "I don't want you to associate with the workers up here." Napoli thereupon left the others, and went to his own department, where he waited until the bell rang to start work. It is undenied that prior to the strike Napoli had engaged in conversations with other employees during the noon hour without restraint from the respondent. Napoli last worked for the respondent on February 1, 1940. The testimony concerning the severance of his employment is in sharp conflict. The respondent's answer alleges that "Napoli voluntarily resigned and terminated his relationship as employee with the re- spondent." In support of this claim, Irving Federbush testified that Napoli lagged in his work after the strike, appeared ill at ease around 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the plant, and on February 1 came to Irving and told him that lie wished to leave the respondent's employ at once. Irving testified that he requested Napoli to complete the job he was then working on; but that Napoli refused, whereupon Irving told him to sign his time card, and call for his pay the following Wednesday (February 7). The card in question was signed by Napoli and in Irving's hand- writing there appears the following : "I hereby resign as of today, dated February 1, 1940." Napoli's version of the circumstances surrounding his severance of employment was as follows : On January 30, 1940, Sam Federbush told him that the respondent had only 11/2 or 2 days' work in his department and that thereafter he would be laid off. Napoli -pro- tested that prior to the strike it had been customary for him to be transferred to other departments when work in his specialty was slow, and that Nathaniel Federbush, his foreman, had promised him steady employment at the time he was interviewed for employment. Sam replied : "Since the strike, things are not going to be the same around here. We are only giving steady employment to those who have stood by us." On the next day, Sam Federbush told Napoli that Irving wanted to see him. Irving then told Napoli that he was to be laid off because the respondent was discontinuing the celluloid- index department. Irving further stated that Napoli should seek employment elsewhere and that if he would resign, Irving would give him a recommendation. Napoli told Irving he would consider the matter. On the following afternoon, February 1, Napoli decided that since he had only a half day's work left, he might as well get his recommendation and resign immediately. He so informed his fore- man, Nathaniel Federbush: Nathaniel told him to come. back the next pay day, Wednesday, February 7, for his pay. Napoli punched his time card and left; but when he returned for his pay on February 7, Max Federbush told him it was not ready. After Napoli insisted on getting his pay, he was told to return later, which he did in about 2 hours. Irving Federbush then told Napoli that his pay was ready but that he would have to sign a resignation card. When Napoli said he had never signed such a card before, Irving replied : "If you want your pay, sign it." Napoli testified that since he wanted his pay he then signed the card without noting the date written on by Irving. When Sam Federbush was questioned as to whether he had told Napoli that things were different since the strike, he testified that he had no right to make such a statement to Napoli since Napoli was not in his department and further stated : "I don't remember. I didn't have any conversation." As hereinafter described, Sam's author- ity was sufficient to enable him to discharge Kravitz, another striker THE FEDERBUSH CO., INC. 553 who was not employed in his department. Sam was not a convincing witness and we give Napoli's testimony concerning this incident full credence, as did the Trial Examiner. Neither Sam nor Irving, more- over, denied that they told Napoli that he was going to be laid off as soon as the job he was working on was finished. Nathaniel was not called by the respondent as a witness , nor was any claim made that he was unavailable. Under all the circumstances, we believe, as did the Trial Examiner, that Napoli's version of the circumstances sur- rounding the termination of his employment is the correct one. It is apparent that the respondent decided to rid itself of Napoli as soon as possible after his reinstatement, and notified him within a week of his return that he was to be laid off in a day or two, because there was no more celluloid-index work. This was a sharp reversal of the respondent's four years' practice of employing Napoli in other departments during periods when there was no celluloid work. No explanation was offered by the respondent for this abrupt change in its treatment of Napoli, nor is it necessary to look for one further than Sam's statement to Napoli that only "loyal" employees were to receive steady employment. We find, as did the Trial Examiner, that the respondent decided to discharge Napoli because of his prominent activ- ities on behalf of the Union before and during the strike. The respondent takes the position that it is absolved of any respon- sibility for Napoli's leaving because he signed a resignation card, and because he stated at the hearing in the earlier case against this respondent that he left its employ "voluntarily." 14 At the time Napoli resigned, however, the respondent's discriminatory action had already been taken, and Napoli had already been notified of his dis- charge. Napoli's leaving was "voluntary" only in the sense that he quit in anticipation of the discharge which he had been told would become effective that day. The respondent had invited this action on Napoli's part by offering him a recommendation if he would volun- tarily resign; and by later threatening to withhold his pay, induced him to sign a statement to that effect. Under the circumstances, the termination of Napoli's employment was tantamount to a discharge. 2. Anthony Bartolo Bartolo was employed by the respondent on September 18, 1939, to help in the shipping department and to run errands. Upon apply- ing for reinstatement after the strike, he was reinstated to his old position on January 24, 1940. 14 Napoli, at the hearing in the earlier case, replied in the affirmative to the question "Did you leave the employ of the Federbush Company voluntarily ?" At the hearing in the present case, Napoli affirmed his answer, but explained later that he understood "voluntarily " to mean only that he left of his own accord , shortly before his discharge should become effective, and that "They didn't put a gun on my back and say, `Sign up., 11 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Shortly after Bartolo returned to work, Max Federbush asked him if the Union was to have a meeting that night and whether he was going to attend. On another occasion shortly after Bartolo's rein- statement, Max asked Bartolo to get him a union book.15 Bartolo testified that once when he was returning from the bathroom and was taking a drink of water, Sam Federbush admonished him, "Don't waste so much time or you will be through." Sam denied this state- ment, saying "[I] never have said that; I had no reason to say that." The Trial Examiner did not credit the denial nor do we. Bartolo had never been criticized for such acts prior to the strike. On February 15, 1940, Bartolo was discharged. In its answer the respondent contended that Bartolo was discharged for cause because he "was inefficient, incompetent, insubordinate and otherwise failed to carry out the duties assigned to him." Irving Federbush, the re- spondent's general manager, testified that Bartolo's attitude and de- meanor prior to the strike were satisfactory but that after the strike his attitude was "much different and unsatisfactory." Irving gave no specifications except that Bartolo was "stalling on deliveries," but disclaimed personal knowledge of Bartolo's conduct. Nathaniel Feder- bush, who hired Bartolo, and Sam Krebs, the foreman who generally gave orders to Bartolo, were not called as witnesses and did not testify. Concerning the events immediately leading to Bartolo's discharge, Irving Federbush testified that on the day of the discharge, Harry Hisiger, one of the respondent's salesmen, reported observing Bartolo playing pin ball in the barber shop for 5* minutes. Hisiger corrobo- rated Irving's testimony to this effect and testified that for "fully five minutes" he watched Bartolo play pin ball. The barber shop is located at the ground level of the building housing the respondent's premises.16 Irving testified that upon receiving Hisiger's report he immediately called. upon his brother Sam to verify the report and to discharge Bartolo forthwith if the report was true. Sam testified that Irving called him up and said "Go downstairs and take a look in the barber shop; that fellow is down there." Sam then went down to the barber shop and saw Bartolo playing the pin-ball machine. Sam's next fol- lowing testimony was : I stood there for a few minutes and I called him and I said, "What are you doing here? Are you playing the machine?" He says, "I was sent on a delivery." I said, "If you were sent on a delivery, what are you playing the machine for and getting paid for. Come upstairs." I said, "Come upstairs and put your package down, punch your card, and you are through." 15 Bartolo's testimony concerning those incidents was not contradicted by Max Federbush when he later was called by respondent. 11 The respondent's premises are on the fifth and sixth floors of this building. THE FEDERBUSH CO., INC. 555 On material points, Bartolo's testimony concerning his discharge differed substantially from the version of the respondent's witnesses.. Bartolo testified that he was sent by his foreman, Sam Krebs, on a personal errand to J. D. Federbush's shirtmaker to pick up some article. On his way out of the building he stopped in the barber shop to get a drink of water at the barber's fountain and was directly ordered upstairs by Sam Federbush who had entered the barber shop immediately after Bartolo. After Sam and Bartolo took the elevator to the sixth floor, Sam asked Foreman Krebs how long Bartolo had been out and was told about 10 minutes. Sam then told Bartolo to punch his card and that he was "through." Bartolo denied that he played the pin-ball machine. Sam Federbush did not deny Bartolo's statement that Krebs told Sam that Bartolo had been away from the shipping department for about 10 minutes. Krebs was not called to testify. We find that Bartolo was sent on an errand and that he was not away from the shipping department more than about 10 minutes in all. In several respects, the version of this incident recounted by the respondent's witnesses is not convincing. If Bartolo was only away from his department for about 10 minutes, it is unreasonable to believe that the following events implicit in the respondent's version of the incident could have occurred within that period: (1) Bartolo pro- ceeded from his department on the sixth floor to the elevator, down to the ground floor and into the barber shop; (2) in the barber shop he played pin ball for "fully five minutes" observed by Hisiger; (3) Hisiger then took the elevator to the fifth or sixth floor and reported the matter to Irving Federbush; (4) Irving then gave Sam instruc- tions concerning the matter; (5) Sam then proceeded down the eleva- tor to the barber shop and observed Bartolo playing pin ball for "a few minutes"; (6) Sam and Bartolo proceeded to the sixth floor by elevator and Sam talked to Krebs. It is not necessary, however, to resolve the conflict of testimony as to whether Bartolo did more than to stop for a drink in the barber shop. It is undisputed that Bartolo had been sent on a personal errand for J. D. Federbush, and was absent from the respondent's premises for a legitimate reason ; and that Krebs 'reported to Sam that he had been gone only 10 minutes from start to finish. It is clear that if he dallied, it must have been for a negligible length of time; and this fact was brought to the respondent's attention. Bartolo's discharge cannot be considered apart from Max Feder- bush's questioning of Bartolo concerning the union meeting, and Max's other sarcastic references to Bartolo's union activities, after the latter returned to work after the strike. That the respondent was anxious to rid itself of active union members, of whom it knew Bartolo to be 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD one, has already been shown by the manner of its discharge of Napoli -a week or two before. In view of the above facts and the entire record, we are of the opinion and find, as did the Trial Examiner, that the barber-shop incident was merely a pretext utilized by the re- spondent to support its discharge of Bartolo, and that the real reason for the discharge was Bartolo's activity on behalf of the Union during and after the strike. 3. Joseph Russo Russo was first employed by the respondent on September 18, 1939, as a power-press operator. At times he worked on the drill and cutting machines. Russo had 10 years' experience as a power-press operator before coming to work for the respondent. His activities during the strike have been described above. When Russo applied for reinstatment, after the strike, on January 18, 1940, Irving Federbush asked him if he knew who beat up Bennie Krebs during the strike and Russo replied that he did not know and that he had not done it. The respondent called Russo back to his old job on January 22, 1940, and the next day Irving Federbush told him-: "Keep up the good work; you are doing fine." On February 5, 1940, Russo was given a raise of $1.00 per week during a period when numerous other employees were given raises. On March 12, 1940, Russo was discharged. Russo testified that on March 12, when he reported for work, he could not find his card; and that when he asked Sam Federbush, who was standing nearby, about the matter, Sam handed him his pay check. When Russo asked why he was being laid off, Sam told him that "it was slow" and that he had "orders" to give Russo his check. When Sam was asked on cross-examination if he knew Russo, he said "I suppose I know him, but I don't remember exactly" and when questioned further as to whether he remember that Russo was fired, he replied : "I don't know. I can't say directly if I remember, I don't remember exactly." The respondent did not give any evidence to show that anyone else other than Sam informed Russo of his discharge and we, as did the Trial Examiner, credit Russo's testimony as to the circumstances of his discharge. When Russo asked Nathaniel Federbush why he was being laid off when there was plenty of work upstairs, Nathaniel referred him to Irving Federbush. Russo stated that immediately after this he met Irving as the latter was coming into the office, that he asked Irving about the matter and that Irving told him to telephone him in about 7 minuteg: Russo claimed that he did telephone Irving several times that day and the next, but was told on each occasion that Irving was not in. Irving testified that Russo never called him THE FEDERBUSH CO., INC. 557 and further stated : "I don't think I have had conversations with him. I had a conversation with the shop foreman in connection with his dismissal." In its answer respondent averred that "Russo was repeatedly warned concerning his duties and obligations with respect to his employment but that without regard to such duties and obligations he was guilty of incompetency and inefficiency and his employment was terminated by the respondent for cause and justification." Irving Federbush testified that Russo was discharged for several times breaking a lug die that ultimately had to be replaced at a cost of $350. Irving also testified that he found Russo's work satisfactory until Russo received the $1.00 per week raise on February .ri but that thereafter "his general tone of behavior changed com- pletely. It seems that something got over him." There was no specification as to how Russo's "tone of behavior" changed. George Pelletier, Russo's foreman, testified that Russo "was pretty ambi- tious. He seemed to be willing to work"; and again, that "the man was working honestly and . . . minding his own business." When asked if Russo continued to work "in the same efficient way" after receiving the raise on February 5, Pelletier answered "That's right." When it is considered that Russo worked directly under Pelletier. Pelletier's testimony tends to discredit Irving Federbush's charge of an unsatisfactory change in Russo's behavior. In view of Pelletier's testimony and the fact that Russo had had 10 years of experience as a power-press operater before coming to work for the respondent, the issue of the alleged incompetency of Russo comes down to a consideration of the breaking of the lug die. Irving testified on direct examination that the die was first sent out for repairs on February 9 and returned on February 16; then it was sent out for repairs again and returned on February 24. Then it was sent out for repairs again "and came back to us on April 6th, at which time we found the die not working properly, as the damage done was so severe that it would be cheaper to make a new die than to properly repair it." 17 On cross-examination Irving altered his testimony and stated that the first time the die went back for repairs he knew that the die could not be properly repaired 17 Irving was testifying from certain orders and invoices introduced into evidence as the respondent's exhibits . That he paid little heed to the accuracy of his testimony is evident from the exhibits themselves , which show only one repair to the die during Feb- ruary, and not two, as asserted by Irving. The respondent's exhibits show that, by Order No. A23127 , a lug die was sent for repair on February 9, 1940, and returned on February 16, 1940. On February 24, 1940, the respondent was billed $5 for work on this order. On March 5 , 1940, the respondent ordered a new lug die, for which it was billed $350 on April 11 , 1940. On April 6, 1940, the respondent was further billed $15 for repairs to a lug die It does not appear when the latter work was ordered. 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and that it was necessary to purchase a new die "because you could not repair a die of this type for fifteen or five dollars, I mean, it is perfectly ridiculous." Russo testified that he broke part of the lug die shortly after he received the February 5 raise, but that Pelletier told him he would fix it up if he could. Russo stated that after this one occa- sion he did not break the die again, nor was he ever accused by the respondent of doing so until the hearing. Pelletier testified that Russo broke the die twice, once in the latter part of January or early in February, and again about a week later; that the first time this happened Pelletier was able to repair it himself, and hence did not bring it to the attention of his employers; but that the second time the die was broken Pelletier could not fix it, and told Irving that a new die was needed."' According to Pelletier, Irving on this occasion told him, "If that happens again he is no use to me, and we will have to let him go. He may get injured." Pelletier did not mention any subsequent breakage of the die upon either direct or cross-examination, nor was he questioned as to his knowledge, if any, of the circumstances surrounding Russo's discharge, which must have taken place nearly a month after the breakage last mentioned by Pelletier. Irving testified that Pelletier came to him shortly after February 5, and told him that Russo had broken the lug die "and that he had been breaking several dies previously and he [Pelletier] had given him warning." Irving testified that he told Pelletier to warn Russo again; and that "we told him the next time it happened we would have to fire him." Irving then replied in the affirmative to the respondent's counsel's question : "And regardless of the warning he did subsequently break the die?" but did not specify when nor how Russo broke the die again, nor by whom and under what circumstances he was discharged. The respondent's witnesses -admitted that the die was capable of being used on other of its presses than the one operated by Russo. In view of this fact, the testimony of Irving and Pelletier does not establish that Russo broke the die more than twice, the last time on or before February 9. On this occasion, the evidence shows, the die was sent to be repaired, and Russo was warned, but not discharged. Both Irving and Pelletier stated that they knew at this time that a new die would have to be purchased. We do not credit Irving's vague and unsupported affirmation that Russo did "subsequently" break a 19 It would appear that the February 9 order for repair , and the February 24 bill for $5 (see footnote 17 above ) relate to this breakage of the die. The new the was not ordered until March 5, 1940. THE FEDERBUSH Co., INC. 559 die; and there is no credible evidence of such an occurrence 19 Under these circumstances, it seems clear that the true cause of Russo's dis- charge could not have been the breaking of the die. The respondent made no attempt to controvert Russo's testimony that he was not told, on March 12 or at any other time, that his dis- charge took place because he had allegedly broken the die; nor is it possible to discover from the testimony of the respondent's witnesses who, if not Sam, did discharge Russo, or what was told him as to the reason for it, other than that "work was slow." On the whole record, we find that the respondent did not raise the question of damage to the die, as the reason for Russo's discharge, at any time until it was faced with the necessity for presenting some defense to the charges of dis- crimination. This fact alone is sufficient to stamp with bad faith the respondent's allegation that Russo was in fact discharged for that reason. When Irving's charge to the police during the strike that Russo was "the guy that causes all the trouble," and his questioning of Russo regarding the beating up of Krebs, when Russo returned to work, are set beside the confused and inconclusive testimony of the respondent's witnesses concerning the die, the evidence is persuasive that Russo was in fact discharged because of his prominent activities on behalf of the Union during the strike, and we, as did the Trial Examiner, so find. 4. Louis Cantor Louis Cantor was employed by the respondent on October 17, 1939, as a power-press operator in the metal department. During the strike, as set forth above, he took a prominent part in the strike activi- ties. He applied for reinstatement with the other employees, and resumed work on January 26, 1940. His work was satisfactory. Both Irving Federbush, and Cantor's foreman, Pelletier, testified that no fault was found with it. The complaint alleges that Cantor was discriminatorily discharged on February 23, 1940. In its answer, the respondent alleges that "Kravitz 20 and Cantor were temporarily laid off for a period of two weeks and that the respondent asked them to report after a period of two weeks from the date of such temporary lay-off" but that they failed to do so. Cantor, however, testified that on February 23 Sam 39 Irving asserted , at the time the respondent's exhibits described in footnote 17, above, were introduced into evidence , that the April 6 repair bill for $15 00 represented repairs made the second time " that Russo broke the die. In view of Irving's general disregard for accuracy In his testimony about these exhibits , the complete absence of any evidence that the die was broken on Russo's rather than one of the other presses , and the long lapse of time between Russo ' s discharge , and the bill for repair, we do not credit this assertion 20 Kravitz's case is discussed below. 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Federbush gave him his pay envelope, and "told me not to come back to work any more, that I am finished." Cantor gathered his belongings and left the plant, and did not thereafter return to ask for work. Sam Federbush's testimony as to this matter was confused. He asserted first that he told Cantor he was laid off, and stated, "My brother Irving called me up and says Louis Cantor is laid off." Imme- diately thereafter Sam testified that he did not lay Cantor off, and then added, "I don't remember exactly what happened, but I didn't lay him off. I know my brother Irving told me that Louis Cantor was laid off." 'Elsewhere he testified that sometimes Irving informed em- ployees of their lay-off himself and at other times delegated Sam to tell them. Sam also testified that he did not know for how long Cantor was laid off. He did not deny giving Cantor his pay. Pelletier, Cantor's foreman, testified that during February work was slack in his department, and Cantor was laid off on that account for a week. On direct examination he testified that he did not do the actual laying off himself; he merely took the matter to Irving Federbush, the latter suggested that someone be laid off, and Pelletier suggested Cantor. Later he stated that he himself said to Cantor, "It is a little slow, take a week off and come back and start working again." He said that he did not know whether Cantor was paid that day or not. , Irving's testimony was general, merely to the effect that Cantor "was told [by whom, Irving did not state] to report in about two weeks, that we may be able to resume operations again." On the basis of the entire record, and his observation of the witnesses, the Trial Ex- aminer found that Sam Federbush told Cantor, on February 23, that he was "finished," and we adopt this finding. Whether or not Pelletier indicated to Cantor that he should return later, it appears that Sam was the person who gave Cantor his pay and, we find, announced to him the final decision as to his status. Under these circumstances, Cantor was justified in believing that it was useless for him to apply again to the respondent for work. When Pelletier was asked why it was suggested that Cantor, rather than some other employee, be laid off, he stated, "It was a rule with me that the last one is always the first to be laid off. I usually give the older employees a break." He subsequently admitted, however, that three other employees in the metal department at that time had been hired during the 2 weeks preceding Cantor's alleged lay-off : Levy, Tercasio, and Kemish. Levy and Tercasio were still in the employ of the respondent _at the time of the hearing. Levy does assembly work, and "occasionally" operates a drill press; Tercasio does assembly work. It does not appear what Kemish's job was. Cantor testified that he could do assembly work and had worked at it once for Pelletier with- out receiving any complaint from the latter. He also stated that he THE, FEDERBUSH co., INC. 561 could operate a drill press, as well as the press he regularly worked on, although Pelletier testified that he thought some experience would be necessary. No contention ,was made, however, that Cantor could not have performed any other work for the respondent. The only justification offered by the respondent, then, for its singling out of Cantor for discharge-namely, that Cantor was the "last" or junior employee in his department-does not stand up under examina- tion; and we are compelled to look elsewhere if we are to discover why, when three employees in Cantor's department 21 had been working for 2 weeks at the most, 22 Cantor was selected for discharge. The reason is not hard to find, however, when Cantor's activity during the strike, the respondent's hostility to the Union, and the discharges of Napoli and Bartolo, which immediately preceded that of Cantor, are recalled. Upon the entire record, we find, as did the Trial Examiner, that Cantor was discharged because of his membership in and activities on behalf of the Union. 5. Hyman Kravitz Hyman Kravitz was employed on October 27, 1938, in the assem- bly department, under the charge of Sam Federbush. Throughout the period of his employment with the respondent he worked steadily, being given work in the metal or laundry departments when work in the assembly department was slow. Irving testified that he was a "willing worker" and a "good employee." Kravitz received two raises during this period, one in January 1939 and another in July 1939. In October 1939, Kravitz joined the Union, and went out with the others when the strike was called. As set forth above, he was a member of the strike committee, was elected picked captain, and served in these capacities for the duration of the strike. Sam Feder- bush's attempt to have Kravitz arrested, and Max's threats to him during the strike have already been described. When Kravitz re- turned to work on January 23, he was informed by Max that the latter was now boss of the assembly department, in Sam's old posi- tion; that "We will win out . . . watch out, I am keeping an eye on you." Subsequently, one afternoon after working hours, Max took occasion, as has been shown above, to, tell Kravitz that he did not like his talking to Grasso, the union representative. Kravitz's reply, that he would do his best during working hours, but that what he did outside was none of the respondent's business, was a clear indication to the respondent that Kravitz intended to continue his 21 Only 11 men were employed in the metal department at this time. 22 Kemish had been hired only the week before Cantor's discharge. 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD activities on behalf of the Union as before . Kravitz wore his union button in the plant from the day he was reinstated. Kravitz last worked for the respondent on May 10, 1940. The respondent alleged in its answer that Kravitz was laid off and told to return in 2 weeks , but that he failed to return . Kravitz testified that on Friday , May 10, as he was leaving the plant Sam handed him his pay envelope . Since the respondent's pay day is regularly on Wednesday, Kravitz inquired why he was being paid . Sam told him he was being laid off, giving as the reason that "it is slow, that's why." Kravitz testified that Sam did not tell him how long he was to be laid off. Sam testified that work was slow at that time , so he took the mat- ter up with Irving Federbush , telling the latter than someone would have to be laid off; and that Irving "looked around the assembly and the bindery and the different departments and he told me to lay off Hyman Kravitz." Sam state-d that he accordingly 'told Kravitz "we would lay him off for two weeks." Sam's testimony was not convincing at any point . His answers were evasive in the extreme , and at times he suffered complete lapse Hof memory on important matters. We do not credit his testimony in regard to the matter of Kravitz's lay-off, but adopt the Trial Examiner's finding, made on the basis of the entire record and his observation of the witnesses , that Kravitz was not told to return in 2 weeks or any other period of time. The respondent's defense must fail , in any event, for the record shows, and we find, that Kravitz returned to the respondent 's plant on May 31 and asked if he could have his job back, but was told that there was no work for him. Irving denied that Kravitz asked for work on this occasion , stating that Kravitz said he could get a better job, and merely requested that the respondent give him a letter of recommendation . Kravitz testified that he did ask for a recommendation ; but only after he had been told that the respondent had no work for him. The record shows that he did not secure other employment until the middle of July, and we credit his testimony that he asked to be reemployed by the respondent . Under all the circumstances , we find that Kravitz was discharged by the respondent on May 10, 1940 , and was thereafter refused reemployment. No evidence was offered by the respondent in defense to the charge that it discriminated against Kravitz by discharging and refusing to reinstate him. The explanation that "it was slow" is no defense, for, as has been seen , the respondent, during Kravitz's year and a half of employment, had kept him steadily employed through slow periods by transferring him to other work. Yet on this occa- sion, not only did the respondent make no attempt to give Kravitz THE FEDEIRBUScH CO., INC. 563 other work, but it retained in its employ in the metal department, where he frequently worked, at least two employees who had been employed since the strike.23 Kravitz had received two raises, and admittedly' had been "a' willing worker" and a "good employee" for over a year and a half. His discharge under these circumstances, taken in conjunction with the hostility repeatedly displayed towards Kravitz by the' respondent after he became active on the behalf of the Union, raises so strong an inference that he was discharged because of his union activities as to require an affirmative showing by the respondent that for reasons of business necessity it was impos- sible for the respondent to continue Kravitz's employment after May 10, 1940. No such showing was made by the respondent, and what facts there are point strongly to the opposite conclusion. We find, as did the Trial Examiner, that Kravitz was discharged because of his membership in and his prominent activities on behalf of the Union. The record shows that the respondent has persistently opposed the Union and interfered with the rights of its employees to self- organization. The statements by the respondent's supervisory em- ployees that Kravitz- had. better watch his step, that the strikers would not receive as steady employment as other employees, that the plant did not need a union shop chairman, that the respondent disliked to see employees associate with the Union's manager, and that the Union would have no members by the time the Board and the courts compelled the respondent to comply with the Act, reveal a consistent pattern of resistance to and violation of the Act, in the light of which the discharges of active union members and 'leaders, as above set forth, must be considered. Upon the whole record, we find, as did the Trial Examiner, that by discharging Anthony Napoli on February 1, 1940; Anthony Bartolo on February 15, 1940; Joseph Russo on March 12, 1940; Louis Cantor on February - 23, 1940; and Hyman Kravitz on May 10, 1940; and by failing to reinstate them after the respective dates of their discharges, the respondent discriminated with respect to their hire and tenure of employment, discouraged membership in the Union, and thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them by Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III, above, occurring in connection with its operations described in Section I, above, have a close, intimate and substantial relation to 23 Levy and Tercasio were employed on February 5, 1940. Both did assembly work. 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in unfair labor practices, we shall order it to cease and desist therefrom. We shall also order the respondent to take certain affirmative action which we find is necessary to effectuate the policies of the Act. We have found that the respondent has discriminated in regard to the hire and tenure of employment of Anthony Bartolo, Louis Cantor, Hyman Kravitz, Anthony Napoli, and Joseph Russo. Napoli, having obtained another position sometime after his dis- charge which he prefers to employment with the respondent, does not desire reinstatement. We shall not, therefore, order the respondent to offer it to him. Cantor, Kravitz, and Russo desire reinstatement. We find that their reinstatement will effectuate the policies of the Act. We shall order the respondent to offer Louis Cantor, Joseph Russo, and Hyman Kravitz immediate and full reinstatement to the positions held by them at the time of their respective discharges, or to substan- tially equivalent ones, without prejudice to their seniority and other rights and privileges. The respondent contends that Bartolo, Cantor, Kravitz, Napoli, and Russo are "guilty of lathes" by reason of their failure to file charges at once upon their respective discharges, and that the respond- ent should not be ordered to make any of these men whole for any loss in earnings except such as may have been suffered since the Union first filed charges. For the reasons set forth above, we find this contention to be without merit. We shall further order the respondent to make whole Anthony Napoli, Louis Cantor, Joseph Russo, and Hyman Kravitz for any loss of earnings they may have suffered by reason Of the respondent's discrimination against them, by the payment to Napoli of a sum of money equal to the amount he would normally have earned as wages from the date of his discharge to the date upon which he obtained the employment in which he was engaged at the date of the hearing, less his net earnings 24 during that period; and by payment to each of the others of a sum of money equal to the amount he would normally have earned as wages from the date of his discharge ii By "net earnings" is meant earnings less expenses, such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R . B. 440. Monies received for work performed upon Federal, State , county, municipal, or other work-relief projects shall be considered as earnings. See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7. - THE FEDERBUSH CEO., INC. 565 to the date of offer of reinstatement, 28 less his net earnings 26 during that period. Bartolo, on September 17, 1940, enlisted in the 71st Regiment of the United States National Guard of New York, and was inducted into service on the same day. We shall order the respondent, upon appli- cation by Bartolo within thirty (30) days after his discharge from the armed forces of the United States, to offer him reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges. We shall further order the respondent to make Bartolo whole for any loss of earnings he may have suffered by reason of the respondent's discrimination against him, by payment to him of a sum of-money equal to the amount he would normally have earned as wages during-the periods (1) between the date of his discharge by the respondent, and the date of his enlist- ment, September 17, 1940; and (2) between a date five (5) days after Bartolo's timely 27 application for reinstatement, and the date of offer of reinstatement by the respondent; less his net earnings 28 during those periods. Upon the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAw 1. United Paper Workers , Local 292, affiliated with the United Paper, Envelope and Toy Workers International Union, C. I. 0., is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Anthony Bartolo, Louis Cantor, Hyman Kravitz, Anthony Napoli, and Joseph Russo, thereby discouraging membership in United Paper Workers, Local 292, affiliated with the United Paper, Envelope and Toy Workers International Union,. C. I. 0., the respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining , and coercing its employees in their exercise of the rights guaranteed . in Section 7 of the Act, the a The respondent contends that a back-pay order as to Cantor and Kravitz should not include back pay for any period subsequent to an offer made at the hearing by Irving Federbush to reemploy these men . This contention we find to be without merit. Irving stated definitely , at one point during the hearing that he had openings for both Cantor and Kravitz at that time, and "would be willing to reemploy them." Later , however, he stated that "Cantor can make application for a position anytime within . thirty days, or sixty days, for that matter, if we have work available be can have it." [ Italics ours.] In view of Irving's modification of his offer to Cantor before he left the witness stand, his earlier offer to both is without significance. - 26 See footnote 24 above. 27 As provided in the preceding sentence. 0 See footnote 24 above. 451269-42-vol. 34-37 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. - ORDER Upon the basis of the above findings of facts, conclusions of law, and the entire record in the case, and pursuant to Section 10 (c) of, the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, The Federbush Co., Inc., New York City, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in the United Paper Workers, Local 292, affiliated with the United Paper, Envelope and Toy Workers In- ternational Union, C. I. 0., or any other labor organization of its employees, by discriminating in regard to the hire and tenure of employment or any term or condition of employment of its employees; (b) In any other manner interfering with, restraining, or coercing its employees in 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 activities for the purposes of collective bargaining or other mutual aid or pro- tection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Louis Cantor, Hyman Kravitz, and Joseph Russo immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges; (b) Make whole Anthony Napoli, Louis Cantor, Joseph Russo, and Hyman Kravitz for any loss of earnings they may have suf- fered by reason of the respondent's discrimination against them, by the payment to Napoli of a sum of money equal to the amount he would normally have earned'as wages from the date of his discharge to the date upon which he obtained the employment in which he was engaged at the time of the hearing, less his net earnings 29 during that period; and by the payment to each of the others of a sum of money equal to that which he would normally have earned as wages from the date of his discharge to the date of offer of reemployment, less his net earnings 30 during that period; 29 See footnote 24, above, 80 See footnote 24, above. THE FED'ERBUSH CO., INC. 567 (c) Upon application by Anthony Bartolo within thirty (30) days after his discharge from the armed forces of the United States, offer him immediate and full reinstatement to his former or a sub- tantially equivalent position, without prejudice to his seniority or other rights and privileges; (d) Make whole Anthony Bartolo for any loss of earnings suffered by reason of the respondent's discrimination against him, by the pay- ment to him of a sum of money equal to the amount he would nor- mally have earned as wages during the periods (1) between the date of his discharge by the respondent and the date of his enlistment, September 17,1940; and (2) between a date five (5), days after Bartolo's timely 31 application for reinstatement, if any, and the date of offer of reinstatement by the respondent; less his net earnings 32 during those periods; (e) Immediately post in conspicuous places throughout its plant, and maintain for a period- of at least sixty (60) consecutive days, notices stating : (1) that the respondent will not engage in the con- duct 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), (c), and (d) of this Order; and (3) that the respondent's employees are free to remain or become members of United Paper Workers, Local 292, affiliated with the United Paper, Envelope and Toy Workers Inter- national Union, C. I. 0., and that the respondent will not discrimi- nate against any employee because of his membership in or his activities on behalf of that organization; (f) Notify the Regional Director for the Second Region in writing within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. MR. EDWIN S. SMITH, concurring in part and dissenting in part : I concur in the finding of the majority that the respondent has discriminated against Napoli, Bartolo, Russo, Cantor, and Kravitz, and that the remedial action ordered in regard to them will effec- tuate the policies of the Act. I am of the opinion, however, that the respondent, by the acts described by the majority under the Section entitled "Background" has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The majority of the Board fails to'conclude that the Acts therein described constitute violations of the Act. The Trial Examiner found that the attempt of Sam Federbush to interfere, 83 As provided in paragraph 2 (c) of this Order. 82 See footnote 24, above. 568 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD through the police, with Kravitz's peaceful strike activity, and the statement of Max Federbush to Grasso that the respondent had planted labor spies, as well as Max's sarcastic remark to Bartolo while the latter was engaged in picketing during the strike, were cal- culated to discourage the employees from strike activity and from other activities on behalf of the Union; that the respondent's Novem- ber 9, 1939, notice of its striking employees was not a bona fide effort to prevent violence, but that it constituted a direct communication with the individual employees at a time when the employees had chosen the Union as their exclusive bargaining representative; and that the notice thus interfered with the employees in their right to bargain through representatives of their own choosing. The Trial Examiner also found that the respondent posted the notice of Janu- ary 18, 1940, forbidding discussion "of Union affairs, strike history, or labor laws," and ordered Napoli not to talk with his fellow em- ployees because the respondent desired to prevent further organiza- tional activity; and that by those acts and by Max Federbush's state- ment to Kravitz, that Max did not like the idea of Kravitz's talking to Grasso, the respondent interfered with, restrained, and coerced its employees in their exercise of the rights guaranteed by the Act. That the respondent engaged in the foregoing acts, as found by the Trial Examiner, is amply borne out by the record, as indeed the majority finds. In my opinion the respondent, by these activities, has engaged in unfair labor practices within the meaning of Section 8 (1) of the Act, and I would so find.