Arcade-Sunshine Company, Inc.

National Labor Relations Board - Board Decisions

Apr 15, 1939

12 N.L.R.B. 259 (N.L.R.B. 1939)

In the Matter of ARCADE-SUNSHINE COMPANY, INC. and LAUNDRY
WORKERS CLEANERS & DYERS UNION
Case No. C-579.-Decided April 15, 1939
Laundry and Dry Cleaning Industry-Interference , Restraint , and Coercion:
anti-union speech ; anti-union statements ; circulation among employees for
their Si.Ignatures, of "loyalty" petition, constituting pledge not to strike-
Discrimination ; discharge , for union membership and activity ; charges of, not
sustained as to one employee-Reinstatement Ordered: discharged employee-
Back Pay: awarded to employee discharged for union membership and activities ;
monies received for work performed upon Federal , State, county , municipal,
or other work-relief projects to be deducted and paid over to agency which
supplied funds for said projects.
Mr. Reeves R. Hilton and Mr. Sannuel M. Spencer, for the Board.
Mr. Alvin L. Newmyer, Mr. Ringgold Hart, and Mr. Joseph A.
Kaufmann, all of Washington, D. C., for the respondent.
Mr. Sidney C. Schlesinger, Mr. Frank Scott, and Mr. Jack Kutner,
all of Washington, D. C., for the Union.
Mr. Harry Cooper, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
On July 2, 1937, Laundry Workers Cleaners and Dyers Interna-
tional Union, Local 187, herein called the Union," and on August 11.
1937, Laundry Workers Cleaners and Dyers Union, filed a charge
and an amended charge, respectively, with the Regional Director for
the Fifth Region (Baltimore, Maryland), alleging that Arcade-Sun-
shine Company, Inc., Washington, D. C., herein called the respondent,
had engaged in and was engaging in unfair labor practices affecting
commerce, within the meaning of the National Labor Relations Act,
i Laundry Workers Cleaners and Dyers International Union, Local 187 , affiliated with
the American Federation of Labor, functioned as an unaffiliated labor organization known
as Laundry Workers Cleaners and Dyers Union, between the last week in July 1937 and
September 24, 1937 , when it became affiliated with the Committee for Industrial Organiza-
tion. See footnote 2. As used herein, the word "Union" refers to the organization in
each of its affiliated or unaffiliated forms.
12 N. L. R. B., No. 38.
259
169134-39-vol. 12-18
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
49 Stat. 449 , herein called the Act. Upon the amended charge, the
National Labor Relations Board , herein called the Board, by the
Regional Director , issued its complaint and accompanying notice
of hearing , dated November 19, 1937, copies of which were duly served
upon the respondent and the Union.
The complaint , charging 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
Act, alleged in substance (1) that the respondent on or about June
26, 1937, discharged and refused to reinstate Alexander Parker and
Joseph H . Gordon, and on or about July 31, 1937, discharged and re-
fused to reinstate William Jones , three of its employees , for the
reason that they joined and assisted the Union and engaged in con-
certed activities with other employees at the respondent's plant for the
purpose of collective bargaining and other mutual aid and protec-
tion ; and (2 ) that the respondent , by and through its servants and
agents, intimidated , restrained , and coerced its employees , and in other
ways attempted to prevent them from joining a labor organization
of their own choosing. The respondent filed an answer , denying the
unfair labor practices charged, and averring affirmatively that Parker
was replaced when he did not report for work , that Gordon quit, and
that Jones was dismissed for drunkenness.
Notices of two postponements of hearing were duly served upon
the parties . Pursuant to notice , a hearing was held at Washington,
D. C., on March 22 , 28, 29 , and 30, 1938 , before Lawrence J. Kosters,
the Trial Examiner duly designated by the Board. The Board
and the respondent 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 . At the end of the Board 's case , counsel for
the Board moved to dismiss the allegations of the complaint in so far
as they related to the alleged discharge of Joseph Gordon. Counsel
for the Board also moved that the complaint be conformed to the
proof adduced at the hearing . The Trial Examiner granted both
motions, without objection . Counsel for the respondent moved to
dismiss the allegations of the complaint with regard to the cases of
Alexander Parker and William Jones . The motion was denied.
At the close of the respondent 's case, counsel for the respondent moved
that the answer be conformed to the proof adduced at the hearing.
No objection was made and the motion was granted . At the end of
the hearing, counsel for the respondent made a formal motion for
the dismissal of each charge against the respondent . The motion was
denied . Other motions and objections to the admission of evidence
ARCADE-SUNSHINE COMPANY, INC. 261
were made and ruled upon at the hearing. The Board has reviewed
all the rulings of the Trial Examiner and finds that no prejudicial
errors were committed. The rulings are hereby affirmed.
On April 22, 1938, the Trial Examiner filed his Intermediate
Report, copies of which were duly served upon the parties. The Trial
Examiner found that the respondent had engaged in and was engag-
ing 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 and that it offer to Alexander Parker and William
Jones immediate and full reinstatement to their former positions with
back pay. He also recommended that the allegations of the com-
plaint relating to the discharge of Joseph Gordon be dismissed.
On May 5, 1938, the respondent filed its Exceptions to the Inter-
mediate Report and requested oral argument, permission to file briefs,
and a reopening of the record for the taking of further evidence
before a member of the Board. The request for reopening the,
record is hereby denied. Pursuant to notice, a hearing was held
before the Board on October 25, 1938, in Washington, D. C., for the
purpose of oral argument. The respondent and the Union were
represented by counsel but only counsel for the respondent partici-
pated in the argument. During the oral argument, counsel for the
respondent was granted permission to file a brief with the Board.
On November 4, 1938, the respondent filed its brief which the Board
has considered. The Board has also considered the exceptions to the
Intermediate Report, and in so far as they are inconsistent with the
findings, conclusions, and order set forth below, finds no merit in
them.
Upon the entire record in the case, the Board makes the following :
FINDINGS or FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, Arcade-Sunshine Company, Inc., a Delaware
corporation maintaining its plant and office in Washington, D. C.,
is engaged in the business of operating a laundry and dry cleaning
establishment. In the course of its business the respondent also
cleans, dyes, and stores carpets and rugs.
The respondent's operations are carried on principally in the Dis-
trict of Columbia where it also performs services for a small number
of customers who reside in the State of Maryland. The respondent
does an annual volume of business ranging in amount from $750,000
to $1,000,000, and employs an average of 350 to 400 employees.
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE UNION
Laundry Workers Cleaners and Dyers Union is a labor organiza-
tion affiliated with the Committee for Industrial Organization through
affiliation with Journeymen Tailors' Union of America, Local Union
No. 188, which is in turn affiliated with Amalgamated Clothing
Workers of America. The Union admits to membership all employees
in the laundry industry in the District of Columbia, except super-
visory employees having the authority to hire and discharge. Prior
to July 1937, the Union was known as Laundry Workers Cleaners
and Dyers International Union, Local 187, and was affiliated with
the American Federation of Labor. Between July and September
1937 the Union was an unaffiliated labor organization.2
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
During February, March, and April, 1937, the Union conducted
a campaign to organize the laundry workers in the District of Colum-
bia including the respondent's employees. Leaflets were distributed,
meetings were held, and a number of the respondent's employees
joined the Union. During the latter part of June the Union called
a strike in the industry and although the strike did not purport to
include the respondent's employees, the respondent's plant was pick-
eted for several days and some of its employees participated therein
for half a day. The strike lasted for 3 weeks, after which the Union
negotiated collective bargaining agreements with other laundries
in the District of Columbia. Although the Union similarly sought to
negotiate with the respondent and several conferences were held, the
record does not disclose the result of such negotiations.
In the latter part of June employees in the flatwork department of
the respondent's plant joined in a 10-minute stoppage of work for the
purpose of securing an increase in wages. Melvin Viner, the respond-
ent's vice president, general manager, and treasurer, entered the
2 During the first week in July 1937, Local 187 was informed that it was suspended
from its parent body and by letter dated July 7, 1937, was informed "that the Charter
of Local 187 has been revoked the past year ." Immediately thereafter the members of
Local 187 , at a meeting assembled unanimously voted authority to its executive com-
mittee to negotiate with the Committee for Industrial Organization for affiliation with
that organization . At the same meeting the name of Local 187 was changed to Laundry
Workers Cleaners and Dyers Union. From the first week of July 1937 to September
24, 1937, Laundry Workers Cleaners and Dyers Union functioned as an unaffiliated
labor organization . During that period meetings were held , business transacted, and
contracts negotiated . The membership and officers of former Local 187 remained the
same. On September 24, 1937, Laundry Workers Cleaners and Dyers Union became a
branch of Journeymen Tailors' Union of America , Local Union No. 188.
ARCADE-SUNSHINE COMPANY, INC. 263
department and promised the employees in the department a wage
increase when his father, Harry Viner, president of the respondent,
who was out of town, returned. With this understanding the em-
ployees resumed work.
Several days thereafter, at or about the time the plant was being
picketed, Rose Moran, floorlady in the flatwork department, requested
Harry Viner to address the employees in her department and re-
assure them that the wage increase promised by his son would be
forthcoming. Moran directed the employees under her supervision
to go to the girls' lunch and locker room after working hours, where
the president would talk to them. At least one employee was told
by her floorlady "that Mr. Viner (Harry) had somebody to talk to
us." Under such instructions about 40 colored employees assembled
in the locker room.
Harry Viner attended the meeting accompanied by one Risher, a
part-time employee of the respondent.3 Melvin Viner, Moran, and
the respondent's cashier, among others, were also present. Harry
Viner reassured the employees that the promised wage increase would
materialize and introduced Risher, saying "that he was one of our
people and he was there to talk to us and show us the right way to
go "
According to the testimony of witnesses who were present, Risher
stated, among other things, that "the union ... didn't make any good
to us . . . that the union being of no service to the black face and
that they were only trying to get our money and he would prefer us
not to bother with the union and that he thought it was best for us
to organize a union of ourselves." At the hearing Risher denied the
statements attributed to him, but admitted that he "cautioned them
(the employees) as to undue haste in selecting the organization to
join . . . and told them what I knew about the former attitude of
the American Federation of Labor towards negroes, which had not
been friendly." The record reveals that Risher disapproved of cer-
tain activities of the Union. In view of his admissions and his hos-
tility toward the Union, we find that he made the statements attrib-
uted to him. We also find that in making these statements he acted
in behalf of the respondent.
Several days thereafter, while the plant was being picketed, the
following petition was conceived at a meeting of the respondent's
executives and managerial employees :
3 According to his own testimony , Risher "from approximately 1915 . . . inter-
mittently rendered services to the Arcade-Sunshine . . . as well as to Mr. Harry
Viner in a personal capacity " and was "in the plant as a result of employment at that
time." His services for the respondent consisted , among other things, of the solicitation
of laundering contracts.
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE, THE UNDERSIGNED AGREE TO BE LOYAL TO THE ARCADE-SUNSHINE
AND REMAIN AT OUR POST UNDER PRESENT WORKING CONDITIONS.
The petition, typed on sheets of paper containing the names of all
employees of the respondent, was circulated among them, at least
in part during working hours, by executive and supervisory em-
ployees. Upon the request of the executives and supervisors, 331 of
a total of 357 employees in the plant signed the petition.
The respondent contends that customers who were aware of the
strike and the picketing inquired whether it was safe to send their
laundry to the respondent's plant, and that the petition was circulated
in order to "find out from employees whether or not they [were]
willing to continue to work, with the idea of giving that information
to our customers . . ." There is no evidence that the petition was in
fact shown to customers although there is some testimony that it
was mentioned in response to inquiries by telephone.
We do not believe that the respondent's primary motive in circu-
lating the petition was to apprise its customers that their laundry
would be serviced and safely delivered. In the light of the respond-
ent's expressed hostility toward the Union and other activity car-
ried on to discourage membership of its employees therein, the infer-
ence is clear that it desired to offset the collective action of its
employees, and we so find.
Regardless of the motive for its circulation, however, the pledge
constituted an interference with rights guaranteed by the Act. An
agreement not to strike is, on its face, a limitation on the exercise of
such a right-the right to engage in concerted activities. Such a.
limitation also interferes with the right to self-organization, since it
eliminates one of the most effective methods of organization and one
of the activities for which organization is designed. The limitation
may be unobjectionable when reached as a result of collective bar-
gaining with the representatives of the employees in an appropriate
unit; 4 in such case, by hypothesis, organization has been attained,
and the conclusion of the agreement is itself an exercise of the right
of engaging in collective activities. But imposition of such a limita-
tion upon the individual employee may constitute not only a form
of coercion resulting from the inequality of bargaining position, but
also an obstruction, at the outset, to the development of effective
organization, concerted activity, and collective bargaining. The
threat of cessation of work is practically the only economic force
available to employees to invoke in their attempt to obtain conces-
sions from their employer. Deprived of the, possibility of utilizing
* Cf. Matter of Shell Petroleum Corporation and International Union of Operating
Engineers, 10 N. L. R. B. 719.
ARCADE-SUNSHINE COMPANY, INC. 265
this economic force before collective bargaining secures such conces-
sions, the right to organize and bargain as guaranteed by the Act
becomes meaningless. Its exercise would be futile. To the extent
that the respondent, as a part of its sales practices, deprived its em-
ployees of the rights guaranteed under the Act, it engaged in an
unfair labor practice.5
The respondent's discouragement of collective activity in its plant
and membership of its employees in the Union is further illustrated
in its treatment of the truck drivers. On July 3, 1937, shortly after
the employees in the flatwork department had been granted a wage
increase, the respondent's truck drivers stopped work for 5 or 10
minutes to prepare a similar request. Alexander Parker, one of the
oldest drivers in the plant and a member of the Union, was selected
to make the request of the respondent. During the discussion among
the drivers, Brisker, the respondent's cashier, entered the service
room where they were gathered and asked what they were doing.
Either Parker or another driver, one Cook, demanded a wage in-
crease for the truck drivers. Brisker thereupon took Cook aside and
conversed with him. Immediately thereafter, according to Parker,
Brisker called Parker into his office and referring to his previous
conversation with Cook, accused Parker of being the "leader," and
"trying to get the drivers to join the union." He advised Parker
"not to agitate the union; [he] might lose [his] job." Brisker then
called in all the drivers and informed them that he would take up the
matter of a wage increase with Harry Viner when the latter returned.
The drivers thereupon resumed work.
At the hearing Brisker gave a different version of the events on
that day and denied the anti-union statements attributed to him by
Parker. The testimony of Harry Viner with respect to these events
as reported to him by Brisker tends to confirm Parker's testimony.
From all the evidence we find that Brisker made the statements attrib-
uted to him by Parker.
Harry Viner returned to the plant early the same evening, and
was informed by Brisker that there had been some "trouble" that
afternoon and that Parker and his fellow drivers had engaged in
a stoppage of work. When Parker returned to the plant that evening
to request an advance on his salary, Viner called him into his office,
asked him what trouble he had caused in the plant, advised him of the
5 See National Labor Relations Board v. Star Publishing Co., 97 F. (2d) 465 (C. C. A.
9th), where the Court rejected the Company 's contention that it had been justified in
discriminating against certain of its employees because a failure to do so would have
disrupted its business . The Court stated : "The act prohibits unfair labor practices
in all cases. It permits no immunity because the employer may think that the exigencies
of the moment require infraction of the statute. In fact, nothing in the statute permits
or justifies its violation by the employer."
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
report that he "was agitating the union among the drivers," and told
him "don't do it again." Harry Viner denied saying anything to
Parker about the Union, but admitted talking to him about the
stoppage of work that afternoon, and admitted telling him, "don't
do it again," with reference to that incident. In view of Viner's
admission, and his anti-union conduct as evidenced by the speech of
Risher and the circulation of the petition, we do not credit his denial
and find that he sought to discourage Parker from pursuing his
concerted activities and to discourage his membership in the Union.
Three or four months later, Parker, whose employment had ter-
minated 6 following the incidents described above, returned to the
plant and asked Harry Viner for reinstatement. Viner asked him
what assistance he was deriving from the Union, and upon receiving
the answer "nothing," added "you see what benefit you get." Viner
then called Brisker, and asked him if he had a position available for
Parker. Brisker stated that he did not but that when he had need
for his services he would let Parker know. Viner urged Parker to
talk to employees "to keep them from joining the union" and gave
him a loan of $2. Viner denied ever talking to Parker concerning
his union membership. We are satisfied, however, that he made the
statements attributed to him by Parker.
Parker was reinstated to his former position on January 31, 1938.
On that day Brisker informed him, in the presence of Melvin Viner,
that he had an opening for him "if you want to go back to work and
do the right thing . . ." Although Parker had received $21 a week
prior to July 3, Brisker offered him $18, stating : "go ahead and take
the $18 and see how you get along and if you do the right thing you
don't have to worry; we will fix you up . . . you have been out of
work for quite a while and being with the union . . . now we will
take you back, but we don't want no messing around. We want
you to make your mind up and play ball with the company or play
ball with the union." Either Brisker or Melvin Viner added, ". . . if
you think you can go back and do the right thing, all right. We don't
want to see you around talking about the union, and if a fellow comes
around and says anything about . . . the union, tell them to get out
of the place . . ." A month thereafter Parker's wage was increased
to $20 per week.
Melvin Viner denied ever discussing the Union with anyone in the
plant and Brisker denied telling Parker to "play ball" with the
Union or with the respondent. Brisker did not deny the remainder of
the conversation. That Parker's reinstatement was in fact condi-
tioned upon his doing the "right thing" is confirmed by the testimony
6 The termination of employment is discussed below.
ARCADE-SUNSHINE CODIPANY, INC. 267
of Harry Viner.7 We find that Brisker or Melvin Viner made the
statements attributed to them by Parker. We are satisfied from the
record that by these statements the respondent conditioned Parker's
reinstatement upon his refraining from union activity or other con-
certed activity.
We find that the respondent, by the speech of Risher, the circula-
tion of the afore-mentioned petition,8 and the foregoing statements
to Parker by the respondent's president, vice president, and cashier,
has interfered with, restrained, and coerced its employees in the exer-
cise of the'rights guaranteed by Section 7 of the Act.
On January 28, 1938, following the issuance of the complaint in
this case, the respondent laid off four employees, Dyer, Gibson, Rob-
inson, and Wright, who worked on one mangle in the flatwork
department. Three of them had been employed by the respondent
for 12, 9, and 7 years, respectively, and had seniority over other
employees. At least two of them were members of the Union and
attended meetings at the time of the lay-off. A third, Dyer, had been
selected by employees of that department early on the day of the lay-off
to request another wage increase.
On the morning of January 28, Melvin Viner came into the flat-
work department before the request could be made, called the crew
of employees on the mangle nearest to his office into the office, and
when they returned it was reported that he would see other employees
later. At the end of the day the floorlady called the four employees in
question into her office, informed them that the respondent had too
many employees and was compelled to lay them off, and that "we
four had been selected." Melvin Viner informed them, upon being
asked why they were being laid off, that "he had different reasons,"
and they were "the ones that had been pointed out to let go." At
least three of these employees had received no complaints about their
work, nor had they ever been laid off or disciplined before.
The respondent claims that the lay-offs were occasioned by the
fact that production costs were too high. The respondent's floorlady
who selected the employees to be laid off testified with respect to the
basis for her selection. According to her testimony, she "looked for
the ones that had given me the most trouble." She admitted that
she did not base the selection on seniority, although Brisker men-
tioned seniority first as a basis for lay-offs during the slow season
of the respondent's business. According to the floorlady, Wright was
' Viner testified that Brisker asked him if he should reinstate Parker if the latter
would "do the right thing"
8 Cf. Matter of American Manufacturing Company and Textile Workers' Organizing
Committee , 5 N. L R . B. 443, 449; Matter of Arthur L. Colten, and A. J. Colman, co-
partners , doing business as Kiddie Kover Manufacturing Company, and Amalgamated
Clothing Workers of America , 6 N. L. R. B. 355, 362.
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
laid off because she had on occasion left her table, chattered inces-
santly, and had received warnings about "mixing up" her work; Dyer
because she was "disagreeable" and could not get along with other
employees; and Robinson because she was "full of play," and did not
attend to her work.
In view of the long terms of employment of these employees we
do not believe the floorlady's testimony with respect to the reasons
for selecting the employees to be laid off. The respondent's past
course of illegal conduct, and the surrounding circumstances under
which the lay-offs were made, viz, the inclusion of Dyer, the employees'
representative for the purposes of collective bargaining, the arbitrary
selection of two other employees to be laid off, and the occurrence
of the lay-offs during the course of an attempt on the part of the
employees of the flatwork department to bargain collectively with
the respondent, convinces us that these employees were selected for
this lay-off in order to discourage concerted action by the respondent's
employees for the purpose of collective bargaining.
Although the lay-offs discussed above were not alleged in the com-
plaint to have been discriminatory within the meaning of the Act,
they illustrate the respondent's hostility toward the efforts of its
employees to engage in collective action, and tend to explain the fore-
going unfair labor practices.9
B. The alleged discharge of Parker and the discharge of Jones
Alexander Parker was employed by the respondent in 1931 as a
truck driver. He signed an application for membership in the Union
on June 25, 1937, being among the first drivers in the plant to join.
The respondent contends that Parker quit his employment on July
3, 1937.
As described above under subsection A, on July 3 Parker had
been chosen by the truck drivers to present their demands to the
management and had been subjected to severe criticism from Brisker
and Harry Viner for engaging in such collective activity. It is ap-
parent that his union membership was known to the respondent and
provoked the discriminatory remarks from the respondent as detailed
above.
A regular part of Parker's duties included a Sunday trip to the
Ambassador Hotel for the purpose of collecting laundry. The record
shows that Parker was usually instructed every Saturday to make the
9 Cf. National Labor Relations Board v. Pacf lic Greyhound Lines, 91 F. (2d) 458
(C. C. A. 9), affd. 303 U. S. 272; Matter of M. Lowenstein & Sons, Inc. and Bookkeepers',
Stenographers ' and Accountants ' Union, Local No. 16, United Office and Professional
Workers of America, C. 1. 0., et al., 6 N . L. R. B. 216; Matter of American Smelting
and Relining Company and The Industrial Local Union of the Copper Workers of the
Committee of Industrial Organization, 7 N. L. R . B. 735.
ARCADE-SUNSHINE COMPANY, INC. 269
trip and that he customarily performed this task unless he asked
to be relieved. On Saturday night, July 3, Brisker asked Parker
to make the Sunday collection. Parker refused, claiming that his
helper, Harris, had informed him that Harry Viner had told Harris
to make the trip and that he, Harry Viner, did not want Parker
"anywhere around the plant." Parker told Brisker "I am not making
the trip; you can take the job, as far as I am concerned." Brisker
advised Parker to use his own judgment in believing Harris and
asked him if he was quitting. Parker replied, "to Hell with the place."
Parker testified that when he told Brisker that the latter could
"take the job" he was referring only to the Sunday trip. Harris did
not testify at the hearing. Brisker denied having instructed Harris
to makke the Sunday trip and Harry Viner denied having spoken to
Harris.
Parker did not appear at the plant on Sunday and was replaced by
Harris. Parker testified that he reported to work on Monday, that his
supervisor, the respondent's service manager, told him to see Harry
Viner before he took his truck out, that he saw Viner later that morn-
ing, and that Viner told him he did not want to see him, refused to
say whether he was discharged or not, and told him to "get your
money." According to Parker, he procured his wages and returned
on the following day to withdraw his Christmas savings.
Langstream, the respondent's service manager, testified that Parker
did not report to work at any time on Monday. According to Harry
Viner, Parker attempted to see him on Tuesday when he was out of
the office. Parker returned on Wednesday and asked "can I get my
job back." Viner testified that he asked Parker why he had quit
and had not reported for work on Sunday, and that Parker related
what Harris had allegedly told him with respect to the Sunday trip.
Viner finally told Parker to take up the matter of reinstatement with
Langstream. Brisker testified that he was informed by Langstream
that Parker did not appear on Monday morning, that Parker came in
on Tuesday, the regular pay day, said nothing about going to work,
and collected his wages. Bieber, the assistant service manager, corrob-
orated Brisker's testimony in this respect. As described above, Parker
was reinstated in January 1938.
Although Parker's case is not free from doubt, we think that the
respondent's contention that he quit his employment is supported
by the evidence. The allegations of the complaint, in so far as they
allege that the respondent discharged and refused to reinstate Parker,
will accordingly be dismissed.
William Jones was employed by the respondent on September 14,
1926, engaged in pressing and steaming garments. He was dis-
charged on August 4, 1934, due to "drinking while working," and
rehired 3 days later. He continued in the respondent's employ as a
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
presser and steamer until on or about July 24, 1937, when he was
discharged. The respondent contends that Jones was again dis-
charged because of drunkenness.
Jones signed an application card for membership in the Union
about May 13, and became an active member. He distributed union
circulars, "talked" about the Union, and attended meetings thereof.
The evidence shows that on two occasions Jones was questioned con-
cerning his attendance at union meetings by Branch, his foreman, and
by Harry Viner. About 2 weeks before his discharge Jones was re-
quested by Brisker, in the presence of Melvin Viner, during working
hours, to sign the "loyalty" petition, described above. As there indi-
cated, most of the respondent's employees including all the pressers
in Jones' department signed the petition. Jones refused to sign.
During the afternoon of Saturday, July 24, 1937, Jones was laid
off by his foreman, Branch, and was told to return in a few days to see
Harry Viner. The evidence shows that Jones was under the influence
of liquor during that afternoon and could not perform his work.
Branch took Jones' time card for the week to the cashier and informed
him that Jones would not need his card any longer. On Monday
Branch similarly disposed of the time card for the following week.
Jones returned to the plant on the Wednesday morning following
his lay-off, failed to find his card in the rack, and was referred by
Branch to Harry Viner. Jones spoke to Harry Viner either that
Wednesday or the following Saturday and asked the latter what he,
Viner, was "going to do." According to Jones, Viner answered, "Why.
Jones, you talk too much around here; you walk around and talk about
the union." Jones denied that he talked more than other employees.
Viner replied ". . . that is all right. I know. I got somebody to
tell me." Branch informed Jones that he would let him know when
he had work for him, but has since failed to communicate with Jones,
and the latter has never returned to work for the respondent. Al-
though Viner denied ever talking to Jones about his union member-
ship, we are satisfied from the evidence that he made the statements
attributed to him by Jones.
It is clear that Jones was an intemperate employee. He admitted
that he drank, sometimes before working hours and, in the past,
sometimes during working hours. The record shows that Jones ou
occasion came to work in an intoxicated condition and had to be sent
home or absented himself from the plant due to intoxication. There
is also evidence that the respondent received complaints regarding
the steaming of velvets and other apparel, most of which work was
done by Jones, although Branch himself also performed steaming
operations. In order to determine, however, whether Jones was dis-
charged because of his habitual intoxication, it is necessary to con-
sider the testimony of some of the respondent's witnesses.
ARCADE-SUNSHINE COMPANY, INC. 271
According to Branch, Jones had reported for work in an intoxicated
condition practically every day over a period of 10 years and was
a thoroughly unreliable employee. He was drunk "all the time" and
could not perform his work; furthermore, ever since his employment,
Branch had received complaints about the steaming of garments.
Branch further testified that he "couldn't count" the number of times
he warned Jones and showed him his poor work and that the latter
would usually complete 50 to 60 coats daily whereas he should, under
normal circumstances, handle 500. In addition, Harry Viner also
observed Jones' condition and "practically every morning, or in the
afternoon" over a period of 10 years, he called Branch's attention
to Jones' state of intoxication. Branch's further testimony was that
about once a week he was compelled to send Jones home because of
his intoxication ; that he, Branch, thus "put up" with Jones for a
period of 10 to 12 years.
Harry Viner tended to corroborate Branch's testimony. Accord-
ing to the former, ever since Jones had been employed, he frequently
told Branch to discharge Jones sometimes as often as 3 times daily.
Viner testified that he had urged Branch to discharge Jones "about
a hundred or two-hundred times." Viner further testified that for a
period of more than 10 years "there never wasn't a week there wasn't
any trouble with Jones." Both Viner and Branch admitted, however.
that when Jones was sober he was a competent employee. Viner also
admitted on cross-examination that Jones was sober most of the time.'
The respondent now urges that Jones was discharged because of
his frequent intoxication. With respect to the witnesses who testi-
fied regarding his habitual intoxication, the Trial Examiner stated
in his Intermediate Report "It is very obvious to me that the wit-
nesses were making a special effort to completely discredit Jones.
Their testimony is not believed by me." The record plainly supports
the Trial Examiner's observation. The testimony of Branch and
Harry Viner shows an obvious effort to construct a case against
Jones and to cover up the real reason for his discharge. It is highly
improbable that any employer would endure an employee of the char-
acter described by the respondent's witnesses; it is equally improb-
able that such an employee would be kept on a pay roll for a period
of many years during which his sobriety and efficiency were inter-
rupted almost daily. It is apparent that Jones was not discharged
because of his habitual intoxication, a condition which the respondent
would have us believe it countenanced for over 10 years.
As described above, the respondent was engaged in a course of
conduct designed to discourage its employees from engaging in con-
certed activities or joining the Union. Witness to such conduct was
the speech by Risher, the circulation of the "loyalty" petition, and
the anti-union statements directed to Parker. To similar purpose was
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the questioning of Jones with respect to his attendance at union meet-
ings and the respondent's accusation at or about the time of his dis-
charge that he talked "too much . . . about the Union." We are
satisfied that Jones' union membership, his attendance at union meet-
ings, and his conspicuous conduct in refusing to sign the "loyalty"
petition proved more obnoxious to the respondent than his alleged
10 years of drunkenness. "While proof of the presence of proper
causes at the time of discharge may have relevancy and circumstantial
bearing in explaining what otherwise might appear as a discrimina-
tory discharge, such proof is not conclusive. The issue is whether
such causes in fact induced the discharge or whether they are but a
justification of it in retrospect." 10 The conclusion is inescapable that
because of his union activity the respondent seized upon Jones' intem-
perance of many years' duration to offer as a reason for his discharge.
The alleged reason for the discharge is palpably false. We conclude
that Jones was discharged because of his membership in and activity
on behalf of the Union.11
We find that the respondent, by discharging William Jones on or
about July 24, 1937, 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 by Section 7 of the Act.
At the time of his discharge Jones earned $18 weekly. He has
since earned about $116 at temporary employment, and desires rein-
statement to his former position.
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 within the District of Colum-
bia, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
We have found that the respondent has interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act. The respondent will be required to cease and
10 Matter of Kelly-Springfield Tire Company and United Rubber Workers of America,
Local No . 86, et al, 6 N. L. R . B. 325, enforced in The Kelly-Springfield Tire Company
v. National Labor Relations Board, 97 F. ( 2d) 1007 ( C. C. A. 4th, 1938).
11 Cf Matter of U. S. Truck Company, Incorporated and International Union, United
Automobile Workers of America, Local 174, 11 N. L. R B . 706, and Matter of Kelly-Sprting/leld
Tire Company and United Rubber Workers of America, Local No. 26, et al, 6 N. L R. B
325, enforced in The Kelly-Springfield Tire Company v. National Labor Relations Board,
97 F. (2d) 1007 (C. C. A. 4th, 1938).
ARCADE-SUNSHINE COMPANY, INC. 273
desist from such interference, restraint, and coercion. We have also
found that the respondent discharged William Jones because of his
membership in and activity on behalf of the Union. We shall there-
fore order the respondent to offer William Jones immediate and full
reinstatement to his former position, without prejudice to his senior-
ity and other rights and privileges, and to make him whole for any
loss of pay he has suffered by reason of his discharge by payment to
him of a sum equal to the amount which he normally would have
earned as wages from the date of his discharge to the date of the offer
of reinstatement, less his net earnings 12 during said period.
Upon the basis of the foregoing findings of fact and upon the
entire record in the proceeding, the Board makes the following:
CONCLUSIONS OF LAW
1. Laundry Workers Cleaners and Dyers Union is a labor organ-
ization within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employ-
ment of William Jones and thereby discouraging membership in
a labor organization, the respondent has engaged 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
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
4, The aforesaid unfair labor practices are unfair labor prac-
tices affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
5. The respondent has not discriminated in regard to the hire or
tenure of employment of Alexander Parker, within the meaning of
Section 8 (3) of the Act.
ORDER
Upon the basis of the foregoing findings of fact and conclusions
of law, and pursuant to Section 10 (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that the
"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
elsewhere than for the respondent , which would not have been incurred but for his
unlawful discharge and the consequent necessity of his seeking employment elsewhere.
See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and
Joiners of America, Lumber and Sawmill Workers Union, Local 2590 , 8 N. L R. B. 440.
Monies received for work performed upon Federal , State, county, municipal , or other
work-relief projects are not considered as earnings , but, as provided below in the Order,
shall be deducted from the sum due the employee , and the amount thereof shall be paid
over to the appropriate fiscal agency of the Federal , State, county , municipal , or other
government or governments which supplied the funds for said work -relief projects.,
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent, Arcade-Sunshine Company, Inc., and its officers, agents,
successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Laundry Workers Cleaners and
Dyers Union or any other labor organization of its employees by
discharging or refusing to reinstate any of its employees or in any
other manner discriminating in regard to their hire or tenure of
employment or any term or condition of their employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to William Jones immediate and full reinstatement to his
former position without prejudice to his seniority and other rights
and privileges;
(b) Make William Jones whole for any loss of pay he has suffered
by reason of his discharge by paying to him a sum` of money equal
to that which he would normally have earned as wages during the
period from the date of his discharge to the date of such offer of
reinstatement, less his net earnings 13 during said period;-deducting,
however, from the amount otherwise due him, monies received by him
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 sup-
plied the funds for said work-relief projects;
(c) Immediately post notices in conspicuous places throughout
its plant, and maintain such notices for a period of sixty (60) consecu-
tive days, stating that the respondent will cease and desist in the
manner set forth in paragraphs 1 (a) and (b) and that it will take
the affirmative action set forth in paragraphs 2 (a) and (b) of this
Order;
(d) Notify the Regional Director for the Fifth 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, in so far as it
alleges, with regard to Alexander Parker, that the respondent has
engaged in and is engaging in unfair labor practices, within the mean-
ing of Section 8 (3) of the Act, be, and it hereby is, dismissed.
'8 See footnote 12, supra.