Northwestern Photo Engraving Co.Download PDFNational Labor Relations Board - Board DecisionsJan 31, 194238 N.L.R.B. 813 (N.L.R.B. 1942) Copy Citation In the Matter of NORTHWESTERN PHOTO ENGRAVING CO., A CORPORATION and CHICAGO PHOTOENGRAVERS' UNION, LOCAL No. 5, AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR Case No. C-1969.-Decided January 31, 1942 Jurisdiction : photoengraving industry. Unfair Labor Practices Interference, Restraint, and Coercion: laying off employees for union activities ; warning employees to refrain from joining, remaining members of an assist- ing union ; interrogating employees concerning their union membership ; urg- ing employees to spy upon and report union activities of fellow employees ; disparaging union, its leaders, and members. Discrimination: charges of, sustained as to nine employees, not sustained as to three. Collective Bargaining: charges of, dismissed. Remedial Orders : back pay awarded employees discriminated against. Practice and Procedure: Where pursuant to arrangement with Regional Director and union charg- ing employer with unfair labor practices, employer posts notices to refrain from such unfair labor practices, and during and following period of posting employer continues to coerce its employees, the purposes of the Act would not be effectuated by giving effect to the posting and dismissing allegations of the complaint as to unfair labor practices committed prior thereto. Mr. Jack G. Evans, for the Board. Mr. Joseph D. Bibb, of Chicago, Ill., for the, respondent. Messrs. William J. Schragle, Lawrence C. Gruber, and Ernest R. Loewy, of Chicago, Ill., for the Union. Mr. Sidney L. Davis, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon a second amended charge duly filed on May 26, 1941,1 by Chicago Photoengravers' Union, Local No. 5, affiliated with the 1 The original charge was filed May 23, 1940; the first amended charge was filed January 27, 1941 38 N. L. R. B., No. 152 813 814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD American Federation of Labor, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Thirteenth Region (Chicago, Illinois) issued its complaint, dated May 26, 1941, against Northwestern Photo Engrav- ing Co., Chicago, Illinois, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Rela- tions Act, 49 Stat. 449, herein called the Act. Copies of the com- plaint accompanied by notice of hearing thereon were duly served upon the respondent and the Union. The complaint alleged in substance : (1) that in a consent election held under the auspices of the Board on May 6, 1940, the Union was designated by a majority of the employees in an appropriate unit as their representative for the purposes of collective bargaining with the respondent, and that at various named dates following May 6, 1940, the respondent refused to bargain collectively with the Union as the repre- sentative of its employees; (2) that at various times after June 10, 1940, the respondent laid off or discharged 13 named employees on the dates set forth in the complaint, and failed and refuse to reinstate certain of said persons,2 because they had joined and assisted the Union and had engaged in concerted activities; (3) that at various times from on or about November 1, 1937, the respondent threatened its employees and urged and warned them to refrain from joining or remaining members of or assisting the Union ; that it interrogated and offered inducements to its employees for the purpose of obtain- ing information concerning the union activities and union affiliation of its employees; that it made derogatory statements to its employees regarding the Union and its leaders, and threatened its employees with the loss of their jobs if, such employees engaged in concerted ec the following table: Name Released Reinstated Sam Greenberg ------- ---------------------------------------------- June 10, 1940 Sept. 3,1940 - Joe Parisi - -------------------------------------------------- ------------ - Sept 3,1940-------- - Edward Pflanz -- --------------------------------------------------- Oct. 5,1940 Nov 28,1940 - Melvin Rogal ------------------------------------------------------- --------------- Oct 28, 1940 Larry Nart----- ------------------------------------------ Oct 18, 1940 Oct 25, 1940 Frank Zrout Jr' ---------------------------------- Oct. 21, 1940 Nov 8,1940, ------- George Brown--------------------------------------------------- --------------- Nov 26, 1940 Joe Andrusyk ------------------------------------------------------ Dec 27,1940 Jan 9, 1941 -- Leo Blonder -- ------ --------------- Feb 22, 1941 ----------------------------------- George Brown ------------------------------------------ --------------- Jan. 10, 1941 ------------ Tony Giancola ---------------------------------------------------- --------------- Jan 24, 1941 --- Chff Green ---------------------- ---------------------- --------------- Jan. 10, 1941 - Henry Isch 2 ------------ ------------------------------- --------------- Jan 24,1941 - Larry Nart ------------------------------------------ -------- - --------------- Mar. 1, 1941 ----- - - Sam Greenberg ----------------- -- ------------ ------------------------ ------------ Jan. 11, 1941 George Brown ------------------------------------------------------- May 8, 1941 -------------- Sam Greenberg ---------------------------------- ------ May 9, 1941 -------------- Dan Fishman--------------------------- - ------ May 16,1941 -------------- As stated below, the complaint was dismissed during the hearing as to Frank Zrout, Jr. 2 As stated below, the complaint was dismissed during the hearing as to Henry Isch. NORTHWESTERN PHOTO ENGRAVING CO. 815 activities by striking; and (4) that by the foregoing conduct the respondent interfered with,, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On June 6 and 7, 1941, the respondent filed an answer, amended answer, and second amended answer. The answer of the respondent, as finally amended, denied that it had engaged in any of the alleged unfair labor practices. Pursuant to notice, a hearing was held from June 9 to 17, 1941, at Chicago, Illinois, before R. N. Denham, the Trial Examiner duly designated by the Chief Trial Examiner. The Board and the re- spondent were represented by counsel, the Union by its representa- tives, and all participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evi- dence bearing upon the issues was afforded all parties. At the open- ing of the hearing, the respondent moved to dismiss the complaint on the ground that the Board lacked jurisdiction over the respond- ent. After evidence had been introduced concerning the respondent's business, this motion was denied by the Trial Examiner. At the close of the Board's case, the respondent moved to dismiss the com- plaint for lack of proof. The motion was denied by the Trial Ex- aminer. During the course of the hearing, on stipulation of the parties and on motion of counsel for the Board, the complaint, insofar as it pertained to Frank Zrout, Jr., and Henry Isch, was dismissed by the Trial Examiner without prejudice. At the close of the hear- ing, the motion of counsel for the Board to conform the pleadings to the proof was granted by the Trial Examiner. During the course of the hearing, the Trial Examiner made rulings on other motions and on objections to the admission of evidence. The Board has re- viewed the rulings of the Trial Examiner and finds that no preju- dicial errors were committed. The rulings are hereby affirmed. The Trial Examiner thereafter filed his Intermediate Report, dated September 13, 1941, copies of which were duly served upon the parties. He found therein 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, and recommended that the respondent cease and desist there- from and take certain specified affirmative action deemed necessary to effectuate the policies of the Act. He further recommended that the complaint be dismissed insofar as it alleged certain discriminatory treatment of three employees and insofar as it alleged that the• re- spondent had engaged in unfair labor practices within the meaning of Section 8 (5) of the Act. On October 18, 1941, the Union filed exceptions to the Intermediate Report and submitted a brief in support of its exceptions. 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to notice duly served upon all the parties, a hearing for the purpose of oral argument was held before the Board on October 30, 1941, in Washington, D. C. The respondent and the Union were represented by counsel and participated in the oral argument. The Board has considered the exceptions to the Intermediate Report and the brief in support thereof, and, save as the exceptions are consistent with the findings, conclusions, and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent is, and since 1929 has been, an Illinois corporation with its office and principal place of business at Chicago, Illinois. During the calendar year 1940, the respondent purchased materials valued at approximately $37,000. These materials were purchased largely through Chicago dealers. Approximately 75 percent of such materials were produced outside of and transported to the State of Illinois. During the year 1940, the respondent sold zinc and copper engraved plates valued at approximately $240,000. These were de- livered to approximately 900 customers, most of whom are located or have offices in Chicago, Illinois, but who used the engraved plates in the State of Illinois and in other States of the United States in the production and printing of books, catalogs, newspapers, and other matter, approximately 40 percent of which were transported in inter- state commerce. II. THE ORGANIZATION INVOLVED Chicago Photoengravers' Union, Local No. 5, a local of Interna- tional Photo Engravers Union of North America, affiliated with the American Federation of Labor, is a labor organization admitting to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES 3 A. Interference, restraint, and coercion The Union began to organize the respondent's employees in the fall of 1937, and encountered serious opposition from the respondent. Tony Giancola, an employee, was called to the office shortly after signing a union application in November 1937 and was questioned by Irving Z. Lee, the respondent's president, and Sam Hoffman, plant a The respondent did not file any exceptions to the Intermediate Report in which the Trial Examiner found that the respondent engaged in unfair labor practices, within the meaning of Section 8 ( 1) and ( 3) of the Act. NORTHWESTERN PHOTO ENGRAVING CO. 817 superintendent. Lee asked whether he had signed an application. Giancola admitted that he had. Lee immediately laid him off for 2 weeks, and stated that he wished to see what the Union would do for Giancola. When Giancola returned to work at the end of this 2-week lay-off, Lee asked him what the Union had done for him and was told by Giancola, "Nothing," whereupon Lee shook Giancola's hand and sent him back to work. Employees George Brown and Francis Gallagher testified that at about the same time, they were also given disciplinary lay-offs because of their union membership. These incidents were not denied, and we find, as did the Trial Ex- aminer, that they occurred as above recited. Joe Andrusyk, an employee, after signing an application for mem- bership in the Union in 1937, was called to the office by Lee and Irwin V. Washer, the respondent's secretary-treasurer. Upon being ques- tioned, Andrusyk denied that he had joined the Union. Lee expressed satisfaction that the respondent could "count on" him. That night Hoffman summoned Andrusyk and Leo Blonder, an employee, to the office, asked them whether they had joined the Union, and called them "liars" when they denied that they had done so. Hoffman also told them that they "should know better" than to organize the plant, that Lee and Washer could get all the information they wanted concerning the Union, that they knew who had "signed up", and that "they could buy [this] information cheap." During this period in 1937, similar treatment was accorded by Hoffman, Lee, and Washer to employees Al Matz, Charles Moniak, Edward Pflanz, Francis Gallagher, and Leo Blonder, when the respondent learned that they had also signed union applications. The respondent's officials did not deny any of the foregoing and we find, as did the Trial Examiner, that the inci- dents occurred as above recited. Following the fore-mentioned interference by the respondent, the Union abandoned its organizing drive. Beginning in the fall of 1939, the Union renewed its efforts at organization. By March 1940, this union activity had come to the attention of the respondent which then showed its hostility. Thus the undisputed evidence establishes the following. Tony Giancola had signed an authorization card on January 14, 1940. In March, Lee and Washer called him to the office and asked him whether he had been approached by the Union. He stated that he had not. , Lee and Washer then permitted him to re- turn to work. During the same month these officials summoned the employees then on the night shift 4 to the office. Washer reminded them of the incidents of 1937, called attention to the fact that as apprentices they had been allowed to learn a trade, and stated that if the Union came in the respondent would be compelled to discharge * These included , among others , Joe Andrusyk , Leo Blonder , Melvin Rogal , Al Matz, and Charles Moniak. 438861-42-vol. 38-53 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the apprentices. He also asked how many of the employees had joined the Union, and told them that if they believed that they needed a bargaining agent he and Lee did not want them in the plant. Lee instructed the assembled employees to destroy their union cards. Finally, he warned them that if the Union was successful in organiz- ing the plant, he would go into the offset business which required a smaller and different type of staff. On March 11, 1940, and shortly thereafter, the Union filed charges in Case No. XIII-C-1260, charging the respondent with unfair labor practices within the meaning of Section 8 (1) and (3) of the Act. On or about April 1, 1940, the respondent, pursuant to arrangement with the Union and the Regional Director of the Board, posted a notice stating that it would not in any manner interfere with, restrain, or coerce its employees in the exercise of the rights guaranteed in Section 7 of the Act, and that it would not in any manner discriminate against any of its employees for joining or assisting any labor or- ganization. On April 29, 1940, the Union and the respondent entered into an agreement for a consent election which was held on May 6, 1940. The Union received a substantial majority of the votes cast. On May 7, 1940, the Union withdrew its charges in Case No. XIII-C-1260. On May 31, 1940, the respondent notified the Regional Director that the above-described notice had been posted for 60 days. Nevertheless, as set forth below, the undisputed evidence shows that, during and following the period of this posting, the respondent continued to coerce its employees.5 In April 1940, Al Wall, the plant foreman who later became super- intendent, interrogated a number of employees concerning their union membership and warned or threatened them against joining or remain- ing members of the Union. Wall told employee Robert Byers, a union member, that if the employees did not stop this "union stuff," Lee and Washer "will just close the place, so you fellows will all be out of a job." ^ • After ascertaining that employee Dan Fishman had become a member of the Union, Wall approached him, called him a "rat," and stated that the plant "would never go union and if necessary [the respondent] would rather turn the shop into an offset shop." On or about April 16, 1940, Wall stated to Charles Moniak, an em- ployee: I promised you that you could be a journeyman, but I don't know that I can keep my promise. I don't think there will be 5 Under the circumstances the purposes of the Act would not be effectuated by giving effect to the above posting and dismissing the allegations of the complaint as to unfair labor practices prior thereto . Matter of Picker X-Ray Corporation and International Association of Machinists , 12 N. L . R. B. 1384; Matter of Hope Webbing Company and Textile Workers Organizing Committee, etc., 14 N . L. R. B. 55; Matter of Harry A. Half and International Ladies' Garment Workers' Union , 16 N. L . R. B. 667 ; Matter of Phillips Petroleum Company and Oil Workers International Union, etc., 23 N . L. R. B. 741. NORTHWESTERN PHOTO ENGRAVING CO. 819 even a Northwestern Photo Engraving here, the way things are going. You know, I'm worried sick about the whole thing ... because of this Union business, but if you are one hundred per cent, you have nothing to worry about because I'll take care of you. I can speak for Mr. Lee and Mr. Washer, too. Several days later Wall urged Moniak to attend union meetings and to report to him thereon. Wall did not deny any of the foregoing. Wall admitted that he knew where each employee "stood" with refer- ence to the Union, that he was opposed to the Union, and that he frequently discussed his opposition to the Union with the employees. Wall also admitted at the hearing that there was a "sort of personal battle" between himself and William J. Schragle, the international representative of the Union. In this respect Wall testified, "I figure I was going to do everything to hinder Mr. Schragle." In April 1940, Foreman Ruppert approached Sam Greenberg while he was at work and remarked that "if the shop goes union the bosses are going to close it." Later that day as the employees were about to go home, Ruppert told Greenberg : "As long as you stick with the bosses you don't have to worry about your job; your job is secure, when these other men strike the bosses have other men ready to come in." Although Ruppert testified at the hearing, he did not deny making the above statements. Shortly before the consent election of May 6, 1940, and despite the promise in the posted notice, Wall exhibited a sample ballot to Andrusyk and solicited his vote against the Union by showing him how to mark the ballot for a "No" vote. Also prior to the election, Wall remarked to Rogal that he doubted whether the plant could operate under "union conditions"; and stated further that "he knew most of the fellows carried cards; . . . he also knew four or five union men that would tear up their cards and come to work for him if he wanted them." In May 1940, prior to the election, Washer summoned Pflanz to the office and asked him whether he "was for the union" or the respondent. In May 1940, after the election, employees Fishman, Giancola, and Nart were interrogated by Lee, Wall, and Foreman Sam Feingold concerning their union activities. Lee asked Fishman iI he was having "trouble" with the Union. When Fishman replied that he was not, Lee gave him a $3.50 a week increase in salary. Lee questioned Gian- cola concerning the possibility of a "walk-out." At about the same time, Foreman Feingold warned Giancola not to go on strike. Like- wise, Wall threatened Nart that "Those that walk out will never get their jobs back." In June 1940, Wall informed Giancola that one of the employees. had previously been laid off because "he talks too much Union." Also 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in June 1940, Washer approached Pflanz while he was working and asked him whether the Union was "bothering" him. In November 1940, Wall interrogated Andrusyk and Gallagher con- cerning their attendance at union meetings. Likewise in December 1940, Lee, Wall, and Foremen Burce and Shavitz questioned employees Andrusyk, Blonder, Moniak, and Gallagher about their attendance at union meetings and about what had occurred at them. In February 1941, Wall told employee Joseph Parisi that the respondent was not going to employ "any instigators." We find, as did the Trial Examiner, that the respondent, by laying off its employees in 1937 because they joined the Union; and by the foregoing threats and other statements and acts of Lee, Washer, Hoff- man, Wall, Ruppert, Burce, Feingold, and Shavitz, has interfered with, restrained, and coerced its employees in the exercise of the 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. B. The alleged refusal to bargain As noted above, the Union on May 6, 1940, prevailed in a consent election held among the employees of the respondent. On May 13, 1940, Lawrence C. Gruber, president of the Union, William J. Schragle, representative of the International Photo Engravers Union of North America, and one Sward, secretary of the Union, called at the respond- ent's office pursuant to an appointment, and met with Washer, Lee, and the respondent's attorney, Joseph D. Bibb. At this meeting, no proposed contract was submitted. The parties engaged in a general discussion of wages, hours, and the closed shop. At the close of the meeting, Bibb asked the union representatives to submit their proposals in writing. On May 17, the union and company representatives met again, and the Union presented its proposed contract. The contract included, among others, the following provisions: (1) $57 per week for journey- men day workers and $62 for journeymen night workers; (2) from $16.50 to $59 per week for apprentices in the various stages of their apprenticeships; (3) a prohibition against further hiring of appren- tices; (4) 6 hours as a minimum work day; (5) 371/2 hours as a full work week; (6) time and half for overtime up to 3 hours with double time thereafter and double time for Sunday and holiday work; (7) staggered hours should be eliminated within 60 days; and (8) mem- bership in the Union should be a condition of employment. The parties discussed the foregoing terms in detail. The respondent re- fused to grant the Union a closed shop, and submitted the following NORTHWESTERN PHOTO ENGRAVING co. 821 counterproposals: (1) a 6-day week with 4 hours as-a minimum day; (2) gradual elimination of staggered hours over a 2-year period; (3) unrestricted hiring of apprentices; and (4) a 42-hour work week. These were discussed at length and before the conference ended, the parties tentatively agreed that (1) a day scale of wages (without agreeing on the amount) should apply to work done between 8 a. m. and 5 p. m. and that after 5 p. m. a night scale should be paid; (2) 5 hours would constitute a minimum work day; (3) the work week would be 40 hours; and (4) no new apprentices would be hired for 7 months.° The spokesmen for the Union and the respondent conferred again on May 20. Much the same ground was covered as at the two previous meetings. The respondent protested its inability to meet at once the wage increase demanded by the Union but offered to make some imme- diate adjustments upward and then gradually to reach the union journeyman scale. The parties made no further progress toward reaching an agreement .? At the close of the meeting, the Union accused the respondent of refusing to bargain in good faith and an- nounced that it would file charges with the Board. To this Bibb replied, "Well, you may take it to the Board if you see fit. We can't." Three days later, on May 23, the original charges herein were filed. Between May 23 and June 12, 1940, the respondent discussed the charges with representatives of the Board and had at least one meeting with the union representatives at the Board's offices in Chicago. On June 12, 1940, the respondent sent to the Union a second counterproposal in the form of an agreement recognizing the Union as the bargaining agency, providing against discrimination, and providing further for (1) a minimum weekly wage to employees with more than 6 years experience, of $40, with higher wages to employees "when their relative abilities warrant," and a minimum of $15 per week to apprentices; (2) the operation of an "open shop"; 8 (3) a minimum working day of 5 hours; (4) continuance of stag- gered hours for 2 years but with gradual elimination of the system; 8 Lee testified that these tentative understandings were reached on July 1, thus contra- dicting Gruber 's testimony that they were reached on May 17. However, Lee also testified that some of the terms were agreed to at one of the meetings in May we find , as did the Trial Examiner , that the tentative understandings referred to above were arrived at on May 17, 1940 7 The respondent insisted at the conference that it could not eliminate the system of staggered hours immediately but would do so gradually over a 2 -year period , while the Union insisted that the practice should be ended within 60 days Gruber testified that he offered to and did show the respondent how this could be done Lee denied this testi- mony Counsel for the Board had indicated , in examining Lee, that a certain document embodied this demonstration Lee testified that he had never before seen the document Gruber was not called upon to identify the document We find , as did the Trial Examiner, that the Union did not in fact , make the alleged showing to the respondent 8 By "open shop" the parties understood a plant in which union membership was not a condition of employment 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (5) unrestricted hiring of apprentices; and (6) overtime at time and half after 40 hours in any one week. The Union acknowledged this counterproposal in a letter which charged the respondent with having repudiated the tentative under- standing of May 17. The Union also stated in the letter that the Union did not believe that the respondent had tendered the proposal '.with a spirit of bargaining in good faith." On July 1, the Union resubmitted to the respondent its first proposed contract except that this proposal did not include any closed-shop provision. The Union and the respondent held their next conference on Au- gust 1, 1940. During this meeting, such previous understandings as had been tentatively reached concerning any of the subjects covered in the Union's proposed agreements appear to have been abandoned by both parties. The respondent offered to pay journeymen $52 per week for day work and $54.50 per week for night work if the Union would permit the discharge of three named employees who, the respondent claimed, were not entitled to this proposed wage scale. The suggestion was not acceptable to the Union. The re- spondent offered gradually to readjust apprentice wages and stag- gered hours over a 2- or 3-year period. The Union rejected this offer. The respondent agreed to hire no more apprentices during the life of the contract. The Union and the respondent also agreed on some minor points, but by the close of the conference they had not reached an agreement on the main terms in dispute. The parties met again on September 18, 1940. The respondent agreed to the overtime provisions of the Union's July 1 proposal, but continued to insist on its inability immediately to discard the stagger system or immediately to pay the full wages demanded for both journeymen and apprentices. The respondent expressed its willingness to accept, in principle, a fixed ratio of apprentices to journeymen, although substantially lower than the ratio demanded by the Union, but it refused to effect such ratio by discharging any present employees. It would only agree to do so by not hiring more apprentices until the ratio had, "through the passage of time," been attained. The meeting closed without an agreement having been reached. Thereafter, the Union and the respondent held several meetings at the Board's offices in Chicago, with Board staff members, in an unsuccessful effort to adjust the differences between the parties. The respondent was willing to and did recognize the Union as the exclusive bargaining representative of its employees. It did not refuse to embody understandings reached in a, signed agreement with the Union. It met with the Union on numerous occasions, dis- cussed the Union's proposals in detail, submitted counterproposals, and made concessions. While the matter is not free from doubt, NORTHWESTERN PHOTO ENGRAVING CO. 823 we find, upon the entire record, as did the Trial Examiner, that the respondent did try to reach-an agreement and did not refuse to bar- gain collectively with the Union with respect to wages, hours, and other terms and conditions of employment. We shall dismiss the complaint insofar as it alleges that the respondent engaged in unfair labor practices, within the. meaning of Section 8 (5) of the Act. C. The lay-offs 1. In general The complaint alleges that the respondent discriminatorily laid off 12 employees at various times between June 1940 and the middle of May 1941. As noted above the complaint with respect to Zrout and Isch was dismissed during the hearing without prejudice. In his Intermediate Report the Trial Examiner recommended that the complaint be dismissed insofar as it alleged that the respondent discriminatorily laid off Joseph Parisi from June 10 to September 3, 1940. No exceptions have been taken thereto. We have examined the record with respect to Parisi and we agree with the Trial Ex- aminer. We shall dismiss this part of the complaint. The re- spondent admits laying off the other 9 employees but contends that the lay-offs were vacations without _pay or were imposed because of "slack business" or for disciplinary reasons. Lee and Wall testified that it had long been a custom in the plant for each of the employees to take an annual vacation without pay and that these vacations were, in the main, taken at the convenience of the employee, but at times were directed to suit the respondent's convenience. We reject this testimony, as did the Trial Examiner, because it is inconsistent with the respondent's own employment record. These records disclose that of 37 employees who were regu- larly employed in 1939, including the working foremen, only 8 were laid off or given vacations without pay, and that in 1940, of 43 employees regularly employed a major portion of the year, only 22 lost time for such reasons. 2. Sam Greenberg Sam Greenberg was laid off from June 10, 1940, to September 3, 1940.9 He started to work for the respondent in February 1939 as an errand boy. In September 1939 he was promoted to an appren- tice in the zinc-etching department where the simplest photoen- graving work is done. On May 21, 1940, Greenberg was laid off for 1 week, but there is no contention that this lay-off was discrimina- 6 Two subsequent lay-offs of Greenberg are treated below. 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tory. On June 10, 1940 , John Gorski , a shop foreman, notified Greenberg that he was being laid off . Gorski stated that it would be a 2 -week vacation and that everyone in the plant would ' receive a similar vacation . At the end of the 2 weeks , Greenberg returned to the plant but was told that his services were not required at that time. He continued to report to superintendent Wall each week or two, and on one occasion also talked with Lee and Washer. They told him that they had enough zinc etchers at the time, that another apprentice , W. Rosenthal , who had been hired less than 2 months before Greenberg 's lay-off , was a "better man" and that they "would have to be pretty busy before they would take me [Greenberg ] back." He was finally reinstated to his position on September 3, 1940. Greenberg was well known to the respondent as an active supporter of the Union . He was one of the employees interrogated by Lee and Washer in March 1940 concerning his union affiliation . Accord- ing to Greenberg 's testimony , which was uncontroverted , Joseph Ruppert, Greenberg 's working foreman, explained the preference which the respondent showed to Rosenthal , as follows : Q. What is it that Ruppert said about Rosenthal being dumb? A. That is just the words he said, he said he [Rosenthal] was too dumb , "but I [Ruppert] can't help you [Greenberg] because we don't know what side you are on." Ruppert testified that he recommended Greenberg's lay-off on June 10 because "he didn't seem to care much about his job. He didn't seem to want to work, or something." Ruppert asserted further that Greenberg did not do his work properly , that he, Ruppert, had to do the work over, and that he had complained to Greenberg about the latter 's work. However , there is no evidence that Greenberg was told by Ruppert or any other supervisor that he was laid off on June 10 , 1940, because he was not doing his work properly. Gorski, in laying Greenberg off, stated merely that it was a 2-week vacation which the respondent was imposing on all the employees. As found above, many employees were not forced to take vacations. Finally, when Greenberg on several occasions sought reinstatement, his alleged derelictions were not advanced as the reason for his lay-off or for denying him reemployment until September 3, 1940. In view of the uncontradicted testimony of Greenberg set forth above concerning the reason why the respondent laid Greenberg off instead of Rosenthal, a junior employee , the expressed antipathy of the respondent to the Union, and the unsatisfactory character of the explanation for Greenberg's lay-off between June 10 and September 3,1940 , and upon the entire record , we find , as did the Trial Examiner, that the respondent laid off Sam Greenberg because of his membership in and affiliation with the Union, thereby discriminating against NORTHWESTERN PHOTO ENGRAVING CO. 825 him in regard to his hire and tenure of employment and discouraging membership in a labor organization, and that by such discrimination and by the aforesaid statement of Foreman Ruppert, the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 3. Edward Pflanz Edward Pflanz began work for the respondent as a photographer in June 1933 . He applied for membership in the Union in 1937. Shortly thereafter , Lee asked him whether he had joined the Union and called him a "liar" when he denied that he had joined. Pflanz also signed an authorization card on January 4, 1940. On several occasions during the early part of 1940, Lee and Washer questioned him about the Union. On each occasion , he denied any affiliation with the Union and asserted that his sympathies were with the re- spondent . After the election in May 1940 , Superintendent Wall became aware of the union affiliation of each employee , as he admitted in his testimony. On October 5, 1940, Stanley Burce, Pflanz's foreman , handed Pflanz an envelope containing a slip which notified him that he was laid off "until further notice ." When he asked the reason for the lay-off, Burce told him that he knew nothing about it. On October 14 Pflanz returned to the plant and asked Washer why he had been laid off. Washer replied : "Well, Eddie , we have been checking up on your negatives and, we find that you only make six negatives a day, and you have too many make-overs ." Pflanz protested that he did not understand why,, after 71/2 years, the respondent was just then mak- ing such a discovery , and that , as a matter of fact, his average was from 20 to 25. The respondent offered no evidence to support its charge that Pflanz made only 6 negatives a day or that his work was defective. On October 29, Pflanz again applied for reinstatement and was accused by Lee of being "dissatisfied ." Pflanz denied at the hearing that he had ever expressed dissatisfaction . Pflanz was recalled to work on November 28,1940. Wall testified that he requested Pflanz to work on the night shift just prior to his lay-off , and that Pflanz was laid off because he refused to work at night without additional compensation . Pflanz admitted that on one occasion Superintendent Wall asked him to work on the night shift , and that he had refused night work unless it carried extra compensation . Pflanz testified that because of this protest he was not put on the night shift at that time . Pflanz asserted , however, that the incident occurred in 1939. Upon the entire record, we find that Pflanz's refusal to work at night occurred in 1939. 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There is no evidence that the respondent had criticized either the quantity or quality of Pflanz's work prior to his lay-off. When the respondent laid him off, it offered no reason, and his foreman denied that he knew the reason. Moreover, as above indicated, Wall, Washer, and Lee gave conflicting versions of the reason for Pflanz's lay-off. In view of the respondent's expressed antipathy to the Union, and its failure to present a satisfactory explanation for laying off Pflanz, and upon the entire record, we find, as did the Trial Examiner, that the respondent laid off Edward Pflanz from October 5 to November 28, 1940, because he joined and assisted the Union, thereby discriminating against him in regard to his hire and tenure of employment and dis- couraging membership in a labor organization, and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 4. Melvin Rogal Melvin Rogal began working for the respondent in July 1935 as an apprentice in the zinc-etching department. On February 6, 1940, he signed an authorization card for the Union. Rogal was one of the group of employees interrogated by Lee and Washer in March 1940 concerning their union affiliation. Rogal then admitted that he was a member of the Union. On that occasion Washer expressed his antipathy to the Union and told Rogal, as testified by the latter, that if he needed the Union to bargain Washer "didn't want" him. This testimony was uncontroverted. The respondent laid Rogal off on October 5, 1940. Wall testified that Ruppert had told him that Rogal's work had "fallen off," that he mentioned this complaint to Rogal, and that Rogal stated, "I can stay out of work and get just as much money as I am getting working." Wall testified further that he laid Rogal off because of Rogal's "attitude." Wall, however, did not assert that he informed Rogal that this was the reason for his lay-off. Foreman Burce simply gave Rogal a slip stating that he was being laid off because of lack of work and that he would be notified when to return. In response to Rogal's inquiry, Burce told Rogal that "he didn't know . anything about the lay-off." Rogal applied for work at the plant several times during the succeeding weeks and on each occasion was told merely that business was slow and that he would be called back to work when needed. Rogal was recalled to work on October 28, 1940. The respondent's records of "orders received" show that the re- spondent did more business during October 1940 than during any month since the preceding April. Rogal was the only employee in the zinc-etching department who was laid off at that time and it is NORTHWESTERN PHOTO ENGRAVING CO. 827 undisputed that there were a number of employees in his department who had less seniority than he. Under these circumstances, we do not believe that Rogal was selected for lay-off because of business reasons. Moreover, we reject Wall's contention, as did the Trial Examiner, that the lay-off was disciplinary. If the lay-off had been disciplinary, the respondent would have so informed Rogal. Yet Wall did not assert that he informed Rogal as to the reason for his lay-off. Rogal's foreman, when asked by Rogal, disclaimed knowing the reason for his lay-off. The lay-off slip assigned a reason other than inefficiency or insubordination and so did the company representatives when Rogal applied for reinstatement. Under these circumstances, we reject Wall's explanation of Rogal's lay-off. We are of the opinion and find, as did the Trial Examiner, that the respondent laid off Rogal on October 5, 1940, because of his membership in and activity on behalf of the Union. The respondent attempted to persuade Rogal to relinquish his union membership in March 1940 but was unsuccessful. The conflicting reasons advanced by the respondent to justify the lay-off are not persuasive. Upon the entire record, we find that the respondent by laying off Melvin Rogal from October 5 to October 28, 1940, discriminated in regard to hire and tenure of employment, thereby discouraging membership in a labor organization, and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in. Section 7 of the Act. 5. Lawrence Nart Lawrence Nart began working for the respondent in February 1938. He worked 4 months in the shipping room' and in June 1938 began his training as an. apprentice in the copper-etching depart- ment. On December 4, 1939, he signed a union card. On March 7, 1940, he was called into the office and interviewed by Lee and Wall. Lee warned him of the futility of belonging to the Union by referring to the case of one Holtzman who had just been laid off ostensibly for doing poor work but actually, as Lee explained to Nart, because of his union activities. Lee also asked Nart whether he had signed a union card and Nart replied that he had not, al- though as a matter of fact his union affiliation was at least 3 months old. On October 18, 1940, Wall laid Nart off. When he asked Wall for the reason, Wall replied : "I don't know. I didn't do it, but don't blow any steam. I will see Lee about this, and I think I will get you back." On October 25, 1940, Nart was recalled to work. Wall testified that Nart was laid off because there was no "work" in Nart's department. We reject Wall's testimony because it is in- 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD consistent with the respondent's records . These records not only do not indicate a work shortage, but show that during the week pre- ceding Nart's lay-off, the week that he was out, and the week follow- ing, every employee in the copper-etching department, with one excep- tion, worked a substantial amount of overtime. In addition, at least one employee in the copper-etching department, who was re- tained at the time Nart was laid off, had been in the respondent's employ as an apprentice for only about 6 months. According to Wall's own testimony, he knew the union affiliation of all the employees in the plant. In view of the respondent's antip- athy to the Union, and its failure satisfactorily to explain Nart's lay-off, and upon the entire record, we find, as did the Trial Exam- iner , that the respondent laid off Lawrence Nart from October 18 to October 25, 1940, because of his membership in and activity on behalf of the Union, thereby discriminating against him in regard to hire and tenure of employment and discouraging membership in a labor organization, and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 6. The lay-offs of December 27, 1940 On December 27, 1940, eight named employees were laid off allegedly because of shortage of work. That the volume of business for the plant as a whole declined after Christmas 1940 is not dis- puted. According to the testimony of Superintendent Wall, most of the employees laid off on December 27 were selected by their re- spective foremen on instructions from Wall to "pick out" the em- ployees least valuable to the department, and in some instances Wall himself designated the employees to be laid off. We shall first dis- cuss the employment history and union activity of the eight named employees and then in a separate subsection set forth our concluding findings with respect to such employees. a. Employment history and union activity Joe Andrusylc, a photographer in the gallery department, had been employed by the respondent for 7 years. He was active in the 1937 drive of the Union and was, at the time of his lay-off, chairman of the "shop unit" of the Union. On December 27, 1940, there were two employees in Andrusyk's department who had been employed by the respondent for less than 3 months. Neither of these two employees was a member of the Union. Wall testified that the lay-offs in the gallery department were "left" to the "judgment" of the department NORTHWESTERN PHOTO ENGRAVING CO. 829 foreman. Plummer, the foreman of this department, did not testify 10 Andrusyk was recalled to work on January 9, 1941. Leo Blonder, a photographer in the gallery department, had been in the employment of the respondent since 1931. Blonder was active in the Union's 1937 campaign. As noted above the foreman of the gallery department, who selected the employees to be laid off on De- cember 27, did not testify. Blonder was recalled to work on February 22, 1941. George Brown, a Ben Day color artist of 12 years' experience, was first employed by the respondent in May 1936. He was one 'of those who applied for union membership during the 1937 organizational campaign and received a disciplinary lay-off at the time for so doing. In April 1940, he was made department (working) foreman of the Ben Day department, with a weekly bonus of $2.50. On April 23, 1940, he signed an authorization card for the Union. In October 1940, Brown was elected secretary of the "shop unit" of the Union.,' On December 27, Brown was employed on the day shift of the Ben Day department. Meyer Selon, the only other employee then em- ployed in the Ben Day department, worked on the night shift. Selon was also a member of the Union. Although there is some evidence that at various times, the respondent had more work for Selon, the employee on the night shift, than for Brown, the day worker, the respondent's records also show that during the 2 weeks preceding Brown's lay-off on December 27, Brown worked overtime, whereas Selon worked less than half the normal number of hours. Moreover, the respondent's records disclose that during the week following Brown's lay-off, Selon worked 14 hours overtime. The respondent offered no explanation as to why it selected Brown as one of the per- sons to be laid off.12 Brown was recalled to work on January 10, 1941. Tony Giancola had been employed in the respondent's printing de- partment since 1935. He was involved in the 1937 activities of the Union and was laid off in November 1937 for 2 weeks because of his union membership and activities. On December 27, 1940, Giancola was the only union member in the printing department and the only employee in his department to be laid off. The printing department then consisted of Giancola, G. Wickert, the working foreman, and one other employee who had been hired only about "Wall also testified that Andrusyk was selected for lay -off because he had not previ- ously had any lay-offs in addition to "vacations ," whereas other employees in the depart- ment had previously received lay-offs . We reject this testimony of wall because it is incon- sistent with the respondent ' s own records which disclose that Andrusyk was laid off during the week of July 23 , 1940, and that four other employees in his department had not received any lay-offs during 1940 11 Brown was laid off between October 21 and November 26, 1940 The complaint alleged that this lay-off was discriminatory but the Trial Examiner found otherwise and no excep- tion has been taken . We have reviewed the record and agree with the Trial Examiner. 12 A subsequent lay-off of Brown is discussed below. 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3 months prior to Giancola's lay-off. Although the evidence justifies the respondent's contention that its volume of business for the plant as a whole declined after Christmas 1940, we are not convinced that a shortage of work then existed in the printing department. During the 3 weeks preceding Giancola's lay-off, Wickert, the working fore- man, worked about 3 hours overtime. During the 3 weeks following Giancola's lay-off and prior to Giancola's return to work on January 24, 1941, Wickert worked a total of approximately 40 hours overtime. Wall testified that Giancola had been responsible for the damage of equipment in the printing department in June and July 1940 and that he was laid off on December 27,1940, because of that. Although Wall's testimony is not clear, it appears that the alleged breakage ceased in July 1940. Clearly Wall did not assert that the breakage occurred shortly before Giancola's lay-off on December 27. Moreover, Wall ad- mitted that he did not assign Giancola's alleged responsibility for the damage of equipment as the reason when he notified Giancola of his lay-off on December 27. Clifford Green had been employed in the respondent's routing de- partment since November 1937. Green joined the Union on March 7, 1940. He was the only employee in his department to be laid off on December 27. Of the six other employees comprising the routing de- partment, three had signed cards authorizing the Union to represent them but had withdrawn such authorizations at undisclosed dates, and three had never authorized the Union to represent them. Two of the non-union employees and one who had withdrawn his union au- thorization had less seniority than Green. The respondent offered no explanation for selecting Green to be laid off rather than the other employees in his department. Green was recalled to work on January 10, 1941. Lawrence Nart, who, as found above, was discriminatorily laid off between October 18 and 25, 1940, was laid'off again between December 27, 1940, and March 1, 1941. There were five other employees then working with Nart in the copper-etching department. Two of the employees in the copper-etching department had less seniority than Nart. The one with the least seniority was not a member of the Union and was not laid off.13 The respondent offered no explanation for selecting Nart as one of the persons to be laid off. Sam Greenberg, whose other lay-offs are discussed elsewhere herein, was laid off between December 27, 1940, and January 11, 1941. Green- berg's department foreman, Ruppert, at first testified that Greenberg was laid off on December 27 as a disciplinary measure . According to Ruppert, Greenberg "didn't seem to want to work or something" and is Joseph Parisi, the other employee with less seniority than Nart, was a member of the Union. Parisi was laid off on December 18 , 1940, and was recalled to work on or about January 2 , 1941. No claim is made that this lay-off of Parisi was discriminatory. NORTHWESTERN PHOTO ENGRAVING CO. 831 by laying him off, Ruppert "thought it will teach him a lesson." Later, in response to a question by counsel for the respondent, Ruppert stated that he desired to change his previous testimony with respect to his reason for laying off Greenberg, and then gave as the reason that "it was slow." Ruppert on this occasion also testified as follows : "The character of his (Greenberg's) work was-I don't know, I think it was no good." Ruppert's testimony was vague, general, and confused. We reject this testimony as did the Trial Examiner. Henry Iseh was the eighth employee in the group laid off on De- cember 27. As noted above, Isch's case was dismissed at the hearing without prejudice. b. Concluding findings ' All eight employees selected for release were active union members and all had substantially greater seniority than many of the employees who were retained. Although at least 34 percent of the employees were non-union at this time, no non-union employees were selected for lay- off.14 The respondent's expressed opposition to the Union, as hereto- fore found, the admission of Superintendent Wall that he knew which employees were union members, the lay-off of only union members, and the absence of a satisfactory showing why the above-named employees were selected for lay-off rather than those retained, convince us and we find as did the Trial Examiner, that the respondent laid off such employees on December 27, 1940,15 because they were active members of the Union.1e Upon the entire record, we find that the respondent laid off Joe Andrusyk from December 27, 1940, to January 9, 1941, Leo Blonder from December 27, 1940, to February 22, 1941, George Brown from December 27, 1940, to January 10, 1941, Tony Giancola from December 27, 1940, to January 24, 1941, Clifford Green from December 27, 1940. to January 10, 1941, Lawrence Nart from December 27, 1940, to March 1, 1941, and Sam Greenberg from December 27, 1940, to January 11, 1941, because of their union membership and activity, thereby dis- criminating in regard to hire and tenure of employment, discouraging membership in a labor organization, and interfering with, restrain- 1' During the last week of December 1940 , the respondent employed 48 production ens ployees consisting of 21 union members, 16 who were not members of the Union, and 11 who had joined the Union but had withdrawn from the Union at undisclosed times. The record does not disclose which, if any, of those who had separated from the Union had done so prior to Dccember 27 Thus on December 27, 1940, the Union represented between 43 and 66 percent of the respondent 's production employees ; and between 34 and 57 per- cent were non union. m Other than Henry Isch whose case was dismissed at the hearing without prejudice. 16 Cf. Matter of F. W. Woolworth Company, et at and United Wholesale & Warehouse Employees of New York, Local 65, etc , 25 N L. R. B 1362 , enf'd as mod . F. W. Wool- worth Co. v . National Labor Relations Board, 121 F (2d) 658 (C. C. A. 2) ; Matter of Ford Motor Company and United Automobile Workers of America,^Local No 325, 23 N. L. R B. 342. 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 7. Subsequent lay-off of Brown Brown's prior discriminatory lay-off has been discussed above. In February 1941, Brown, who was then working on the day shift in the Ben Day department, was transferred to the night shift. A new em- ployee was hired to replace Brown on the day shift. One of the stand- ard pieces of equipment in a Ben Day room is a color chart. In the early part of May 1941, the employee on the day shift complained to Wall that the color chart had disappeared. He and Wall conducted a search but were unsuccessful in locating it, whereupon Wall found a substitute which he hung on the wall within the next 2 days. Brown noticed the absence of the chart but, since he rarely used it, he paid little attention to its disappearance. However, at about the time that Wall supplied the second chart, Brown discovered the missing one where it had fallen behind a desk, and put it back in place. Wall testified that he had searched for the chart, and that because he could not find it, he became angry. He asserted further that he thought that Brown had maliciously hidden the chart in order to embarrass the employee on the day shift because certain work which had come in during the night preceding the chart's disappearance had been held over for the day worker and had not been assigned to Brown. Wall, however, said nothing to Brown about the loss of the chart, but instead instructed the foreman to lay him off, which was done on May 8, 1941. Brown received no notice or explanation other than the customary one contained in a lay-off slip that "due to conditions" he was being temporarily laid off. On May 26, 1941, the respondent notified Brown to return to work. Brown refused the offer of reinstatement and advised the respondent that he did not intend to return to its employ. Wall testified that he laid Brown off on May 8, 1941, because of the loss of the chart and because of a shortage of work in Brown's department. According to Wall, if there had been enough work in the Ben Day department, Brown would not have been laid off. We find, as did the Trial Examiner, that the respondent's alleged reasons for laying off Brown are not the real reasons. The fact that Wall did not speak to Brown about the disappearance of the color chart prior to his lay-off renders incredible Wall's testimony that the lay- off was in part for the purpose of disciplining Brown because of the disappearance of the chart. Moreover the respondent's employment records indicate that there was no shortage of work in the Ben Day department at the time of Brown's lay-off, and therefore, according to Wall's testimony, Brown should not have been laid off. During NORTHWESTERN PHOTO ENGRAVING CO. 833 the 2 weeks following Brown's lay-off, the two employees then com- prising the Ben Day department worked overtime. Brown was an active member of the Union and Wall was aware of this. Wall admitted at the hearing that he frequently discussed Brown's union affiliation with him. In view of the respondent's expressed antipathy to the Union, the unsatisfactory character of the explanation for Brown's lay-off on May 8, 1941, and upon the entire record, we find, as did the Trial Examiner, that the respondent laid off George Brown from May 8 to May 26, 1941, because of his membership in and activity on behalf of the Union, thereby dis- criminating in regard to hire and tenure of employment and dis- couraging membership in a labor organization, and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 8. Subsequent lay-off of Greenberg Greenberg, whose prior discriminatory lay-offs have been discussed above, was laid off again on May 9, 1941. When he received his check on this occasion, there wasp attached to it the customary type- written slip stating that "due to conditions" he was "temporarily laid off" ; and that he would "be notified when to return to work." Other than this, Greenberg received no explanation for the lay-off. On May 22, 1941, Greenberg succeeded in finding other employment. On May 23, 1941, the respondent instructed him to return to work. Greenberg went to the plant and spoke with Lee, Washer, and Wall, but thereafter declined to return to the respondent's employment. Greenberg was the only employee laid off from the zinc-etching de- partment on or about May 9, 1941. Within 5 weeks preceding Green- berg's lay-off, at least 3 other persons had been hired in the zinc- etching department. These new employees, none of whom was a member of the Union, were retained and required to work overtime during practically the entire period of Greenberg's lay-off between May 9 and May 23. The respondent offered no evidence to show that Greenberg's lay-off on May 9 was necessitated by business con- ditions or other lawful reasons. Upon the entire, record, we find, as did the Trial Examiner, that the respondent laid Greenberg off from May 9 to May 23, 1941, because of union membership and activity, thereby discouraging membership in a labor organization, and inter- fering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. D. The discharge of Fishman Dan Fishman was employed by the respondent in March 1937 as an errand boy. In August 1937 he was transferred to the gallery 438861-42-vol. 38-54 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as an apprentice photographer. He became a member of the Union on November 28, 1939, and was questioned about it by Lee and Wall. Prior to his discharge on May 16, 1941, Wall accused Fishman of visiting the plant of Sam Hoffman, the respondent's former superin- tendent. Fishman admitted visiting Hoffman who was now a com- petitor of the respondent. On May 16, 1941, Lee and Washer sum- moned Fishman to the respondent's office, and questioned him con- cerning his visits to Hoffman's plant. Fishman admitted going there but protested that what he was doing was "on [his] own time." Lee and Washer then told Fishman that they objected to his going to the plant of a competitor. Fishman refused to assure the respondent that he would discontinue his visits to Hoffman. The respondent thereupon discharged him and now contends that the reason therefor was Fishman's insistence upon visiting Hoffman's plant. On May 16, 1941, another employee, accused of visiting competitors of the respondent, assured the respondent that he would discontinue such visits. The respondent, accordingly, did not lay him off or discharge him on this occasion but warned him that he would be discharged if he made any further visits to competitors. In view of the foregoing, and upon the entire record, we find, as did the Trial Examiner, that the respondent objected to the practice of employees visiting the plants of competitors, that Fishman was discharged because he refused to assure the respondent that he would discontinue his visits to Hoffman's plant, and that by such discharge the respondent did not discriminate in regard to hire and tenure of employment. We shall dismiss the complaint insofar as it alleges that the respondent violated Section 8 (3) of the Act with respect i o Fishman. 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 the operations of the re- spondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to- lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. We have found that the respondent discriminatorily laid off the employees whose names, together with the dates and extent of their NORTHWESTERN PHOTO ENGRAVING CO. 835 respective lay-offs, are set forth in Appendix A attached hereto and made part hereof, because of their membership in or affiliation with or activity on behalf of the Union. All these employees have either been reinstated to their former positions, or have refused such re- instatement or have voluntarily left the employment of the respondent since being reinstated. To effectuate the policies of the Act, we shall order the respondent to make whole the employees named in Ap- pendix A, attached hereto, for any loss of pay they may have suf- fered by reason of the respondent's discrimination against them by payment to each of them of a sum of money equal to the amount each normally would have earned as wages during the period or periods of his lay-off or lay-offs, the dates and extent of his lay-off or lay-offs being set forth in Appendix A attached hereto, less his net earnings 11 during said period or periods. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. Chicago Photoengravers' Union, Local No. 5, of the Interna- tional Photo Engravers Union of North America, affiliated with the American Federation of Labor, is a labor organization, within the meaning of Section 2 (5) of the Act. 2. By laying off the employees whose names, together with the dates and extent of their respective lay-offs, are set forth in Ap- pendix A attached, hereto, because of their membership in or affilia- tion with or activity on behalf of Chicago Photoengravers' Union, Local No. 5, of International Photo Engravers Union of North America, affiliated with the American Federation of Labor, thereby discriminating in regard to hire and tenure of employment and 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. 17 By "net earnings " is meant earnings less expenses , such as for transportation, room and board , incurred by an employee in connection with obtaining work and working else- where than for the respondent , which would not have been incuired 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 3590, 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. 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 5. The respondent has not engaged in unfair labor practices, within the meaning of Section 8 (3) of the Act, with respect to the lay-off of Joseph Parisi from June 10, 1940, to September 3, 1940, the lay-off of George Brown from October 21, 1940, to November 26, 1940, and the discharge of Dan Fishman on May 16, 1941. 6. The respondent has not engaged in unfair labor practices, within the meaning of Section 8 (5) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Northwestern Photo Engraving Co., Chicago, Illinois, its officers, agents successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Chicago Photoengravers' Union, Local No. 5, of International Photo Engravers Union of North America, affiliated with the American Federation of Labor, or any other labor organization of its employees, by discriminating in re- gard to their hire and tenure of employment or any term or condi- tion of employment; (b) In any other manner interfering with, restraining, or co- ercing its employees in the exercise of the 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 purposes of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Make whole the employees listed in Appendix A attached hereto, for any loss of pay they may have suffered by reason of the respondent's discrimination in regard to their hire and tenure of employment, by payment to each of them respectively, of a sum of money equal to that which he normally would have earned as wages from the date of such discrimination to the date of reinstatement, as noted in Appendix A, less his net earnings during said period ; (b) Post immediately in conspicuous places in its plant at Chi- cago, Illinois, and maintain for a period of at least sixty (60) con- secutive days from the date of such posting, notices to its employees stating: (1) that the respondent will not engage in the conduct from NORTHWESTERN PHOTO ENGRAVING CO. 837 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 paragraph 2 (a) of this Order; and (3) that the re- spondent's employees are free to become or remain members of Chi- cago Photoengravers' Union, Local No. 5, of International Photo Engravers Union of North America, affiliated with the American Federation of Labor, and that the respondent will not discriminate against any employee because of membership or activity in that organization; (c) Notify the Regional Director for the Thirteenth Region in writing with ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges (1) that the respondent has engaged in unfair labor practices within the meaning of Section 8 (3) of the Act with respect to the lay-off of Joseph Parisi from June 10, 1940, to September 3, 1940, the lay-off of George Brown from October 21, 1940, to November 26, 1940, and the discharge of Dan Fishman on May 16, 1941; and (2) that the respondent has engaged in unfair labor practices, within the meaning of Section 8 (5) of the Act. APPENDIX A Laid off Joe Andrusyk____________ December 27, 1940 Leo Blonder______________ December 27, 1940 George Brown ------------ December 27, 1940 May 8, 1941 Tony Giancola___________ December 27, 1940 Cliff Green_______________ December 27, 1940 Sam Greenberg ----------- June 10, 1940 December 27, 1940 May 9, 1941 Lawrence Nart----------- October 18, 1940 December 27, 1940 Edward Pflanz___________ October 5, 1940 Melvin Rogal_____________ October 5, 1940 Reinstated January 9, 1941 February 22, 1941 January 10, 1941 May 26, 1941 January 24, 1941 January 10, 1941 September 3, 1940 January 11, 1941 May 23, 1941 October 25, 1940 March 1, 1941 November 28, 1940 October 28. 1940 Copy with citationCopy as parenthetical citation