Patriarca Store Fixtures, Inc.

National Labor Relations Board - Board Decisions

Apr 5, 1939

12 N.L.R.B. 93 (N.L.R.B. 1939)

In the Matter of PATRIARCA STORE FrxTURES , INC. and MORRIS
KOMINSKY
Case No. C-413.Decided April 5, 1939
Store and Restaurant Fixtures Manufacturing Industry-Interference, Re-
straint, and Coercion : expressing preference for certain labor organization ; offer
to give stock to members of bargaining committee ; refusal to recognize any
union affiliated with C. I. O.Discrimination : lock-out and discharge of all
employees ; discharge of salesman ; for union activity and to discourage member-
ship in Union-Reinstatement : ordered as to discharged salesman-Back Pay:
awarded to all employees for period of lock-out; awarded to discharged salesman
from date of discharge to date of offer of reinstatement-Withdrawal of Offer
to Give Stock: ordered.
Mr. Bernard J. Donoghue , for the Board.
Godfrey d Cambio , by Mr. Frank C. Cambio , of Providence, R. I.,
for the respondent.
Mr. William F. Guffey, Jr., of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed by Morris Kominsky, the National Labor
Relations Board, herein called the Board, by A. Howard Myers, its
Regional Director for the First Region (Boston, Massachusetts),
issued and duly served its complaint dated January 5, 1938, against
Patriarca Store Fixtures, Inc., Providence, Rhode Island, 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) and (3), and Section 2 (6) and (7) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act. At
the hearing the complaint was amended to conform to the proof and
to include a specific allegation that the respondent, by offering to give
shares of stock in the respondent company to three members of the
Patriarca Grievance Committee, herein called the Committee, engaged
in an unfair labor practice within the meaning of Section 8 (1) of
the Act.
12 N. L. R. B., No. 11.
93
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to the unfair labor practices the complaint, as
amended, alleged in substance (1) that the respondent discharged
Morris Kominsky on May 22, 1937, and at all times since has refused
to reinstate him because he assisted the Committee and engaged in
concerted activity with other employees of the respondent for the
purposes of collective bargaining and other mutual benefits, and
thereby discouraged membership in the Committee; and (2) that by
the statements, acts, and conduct of its agents, and by its conditional
offer to give to Michael Palmieri, Anthony Semoneau, and Anthony
Meldon 1 a bonus consisting of stock in the respondent, the respondent
has interfered with, restrained, and coerced its employees in the exer-
cise of the rights guaranteed by the Act.
On January 8, 1938, the respondent filed an answer to the complaint
admitting its corporate existence, the nature of its business, and the
discharge of Morris Kominsky, but denying all other material allega-
tions of the complaint, and stating that Kominsky was discharged in
accordance with a contract of hire entered into between the parties
on February 10, 1936.
Pursuant to due notice, a hearing was held on January 13 and 14,
1938, at Providence, Rhode Island, before P. Wolf Winer, the Trial
Examiner duly designated by the Board. The Board and the re-
spondent were represented by counsel and participated in the hearing.
Full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing upon the issues was afforded all
parties. During the course of the hearing, the Trial Examiner made
several rulings on objections to the admission of evidence and on
motions, including the Board's motion to amend the complaint and
the respondent's motion to dismiss the complaint.2 In view of the
facts set forth below, it becomes unnecessary to rule upon the action
of the Trial Examiner, with respect to amendment of the complaint.
The Board has reviewed the other rulings of the Trial Examiner and
finds that no prejudicial errors were committed. The rulings are
hereby affirmed.
On February 3, 1938, the Trial Examiner filed his Intermediate
Report in which he found 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 be ordered to cease
and desist from its unfair labor practices and to take certain affirma-
tive action to remedy the situation brought about by said unfair labor
practices. The Trial Examiner also recommended that Morris
1 Referred to in the record as Anthony Meldon or Meldonlan.
2 The Board's motion was made at the close of its case. The respondent 's motion was
made at that time and was renewed at the close of the hearing.
PATRIARCA STORE FIXTURES, INC. 95
Kominsky be reinstated with back pay, determined by his average
weekly commissions during the 6 months immediately preceding the
discharge. Thereafter, Kominsky filed exceptions to the Iittermedi-
ate Report. These exceptions are disposed of in Section V hereof.
On September 8, 1938, the Board, pursuant to Article II, Section
36, of National Labor Relations Board Rules and Regulations-
Series 1, as amended, issued its order 3 reopening the case for further
proceedings and authorizing its Regional Director for the First
Region to accept an amended charge and to issue an amended com-
plaint and notice of hearing. On October 24, 1938, Kominsky filed
amended charges and thereafter, the Board, by A. Howard Myers, its
Regional Director for the First Region, issued and duly served its
amended complaint dated October 25, 1938, against the respondent.
The amended complaint contained all the allegations of the original
complaint and in addition thereto alleged, in substance, (1) that on
or about April 19, 1937, the respondent locked out all of its em-
ployees, and that on or about April 27, 1937, the respondent dis-
charged all its employees and did thereby engage in unfair labor
practices within the meaning of Section 8 (3) of the Act; and (2)
that on or about December 24, 1937, the respondent made a condi-
tional offer to give Michael Palmieri, Anthony Semoneau, and
Anthony Meldon a bonus consisting of stock in the respondent, and
did thereby engage in unfair labor practices within the meaning of
Section 8 (1) of the Act.4 Thereafter the respondent filed an answer
to the amended complaint dated October 31, 1938, denying that it is
engaged in interstate commerce and that it has engaged in any of the
unfair labor practices alleged in the amended complaint.
Pursuant to notice duly served upon the respondent and Morris
Kominsky, a hearing for the purpose of adducing further evidence
was held on December 1, 1938, at Providence, Rhode Island, before
Joseph L. Maguire, the Trial Examiner duly designated by the Board.
The Board and the respondent were represented by counsel and par-
ticipated 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 beginning of the hearing
the attorneys for the respondent and the Board entered into a stipu-
lation which, subject to approval by the Board, provided that both the
Board and the respondent might adduce additional evidence, that the
charge as amended, the amended complaint, and the answer to the
amended complaint be substituted for the original charge, complaint,
and answer, and that the Board treat as the complete record in this
3 Copies of the Board 's order were duly served upon the respondent and Kominsky
4 This allegation was embraced in the Board 's motion , made at the hearing on January
14, 1938, to amend the complaint to conform to the proof.
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
case all the testimony taken and exhibits filed pursuant to both the
hearing held on January 13 and 14, 1938, and the further hearing
held on December 1, 1938. This stipulation is hereby approved. Dur-
ing the course of the hearing, the Trial Examiner made several rul-
ings on objections to the admission of evidence. The Board has
reviewed the rulings of the Trial Examiner and finds that no preju-
dicial errors were committed. The rulings are hereby affirmed.
On January 13, 1939, the Board, pursuant to Article II, Section 38
(d), of National Labor.Relations Board Rules and Regulations-
Series 1, as amended, ordered the issuance of Proposed Findings,
Proposed Conclusions of Law, and Proposed Order and granted the
parties herein the right, within ten (10) days from the receipt of
said Proposed Findings, Proposed Conclusions of Law, and Proposed
Order, to file exceptions, to request oral argument before the Board,
and to request permission to file a brief with the Board.
On March 7, 1939, the Board, pursuant to Article II, Section 38 (d),
of National Labor Relations Board Rules and Regulations-Series 1,
as amended, issued Proposed Findings of Fact, Proposed Conclusions
of Law, and Proposed Order, which were duly served upon the parties.
Although more than ten (10) days have elapsed since the issuance of
said Proposed Findings of Fact, Proposed Conclusions of Law, and
Proposed Order, none of the parties have filed exceptions thereto.
Upon the entire record in the case, the Board makes the following :
FINDINGS Or FACT
I. THE BUSINESS OF TIIE RESPONDENT
The respondent, Patriarca Store Fixtures, Inc., a Rhode Island
corporation having its sole place of business at Providence, Rhode
Island, is engaged in the manufacture, sale, distribution, and instal-
lation of store and restaurant fixtures.
The size of the respondent's business compares favorably with
that of the two leading competitors in Rhode Island. The cash value
of the raw materials used by the respondent from January 1, 1937, to
January 1, 1938, amounted to $33,348.79, about 72 per cent being
shipped to the respondent's plant from outside the State of Rhode
Island. For the same period the cash value of the respondent's total
output amounted to $81,559.42, of which 60 per cent was shipped
outside the State of Rhode Island.
At the time of the first hearing the respondent employed approxi-
mately 14 persons.
PATRIARCA STORE FIXTURES, INC. 97
H. THE ORGANIZATION INVOLVED
Patriarca Grievance Committee is an uiiaffillated labor organization
composed of employees of the respondent.
111. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
Early in April 1937, the respondent's employees began to organize
and, upon their request, were assisted in their activities by an organ-
izer for the United Electrical and Radio Workers of America, herein
called the United, affiliated with the Committee for Industrial Organ-
ization, herein called the C. I. O. Approximately 17 of the then 20
employees of the respondent signed application cards for member-
ship in the United. At a meeting of the employees, officers and a
bargaining committee of three, which was authorized to present
demands to the respondent, were elected. As shown below, the organ-
ization of employees ultimately became known as the Patriarca Griev-
ance Committee. The secretary of the Committee testified that the
organization considered itself to be a local of the United. It is not
shown, however, that affiliation with the United was actually effected.
On April 17, 1937, the bargaining committee, accompanied by an
organizer for the United, presented the Committee's demands to
Dominico Patriarca, president-manager of the respondent. Patriarca
stated he could not meet the demands, but was asked to reconsider
and reply to the Committee by April 20, 1937. On April 19, 1937,
when the employees went to work, they found posted on the door
this notice : "Closed temporarily on account of labor trouble." On
April 20, 1937, the Committee began picketing the plant. Between
April 19 and April 27, 1937, several unsuccessful attempts to reach a
settlement were made. On April 27, 1937, the respondent posted on
the door of the plant a notice discharging all of its employees and
advising them to remove their tools and belongings before the end of
the day.
The respondent continued to confer with the bargaining committee
and also with employees of its own choosing, but none of these con-
ferences were successful. The chief point of disagreement was
whether or not the Committee would affiliate with the C. I. O. The
respondent asserted that it did not object to an independent union
or to a union affiliated with the American Federation of Labor, herein
called the A. F. of L., but that, because of a working agreement which
the respondent had with the A. F. of L.5 it was impossible for the
In September 1936, the respondent and the A F. of L entered into an agieement
which provided that the respondent would employ only A . F. of L. carpenters foi all
installation work in Massachusetts.
98 DECISIONS OD' NATIONAL LABOR RELATIONS BOARD
respondent to recognize a union affiliated with the C. I. O. However,
Patriarca and Anthony Meldon, the latter a member of the Com-
mittee's bargaining committee, both testified that it was wholly
impracticable, if not impossible, for the respondent's employees to
affiliate with the A. F. of L. inasmuch as a great many crafts were
represented in the respondent's shop and each craft would include
only two or three of the respondent's employees.
On May 5, 1937, the respondent consented to sign an agreement
with the United on behalf of the employees upon the condition that
James L. Bernard, a conciliator from the United States Department
of Labor, adjusted matters with the A. F. of L. It appears that such
an adjustment was not effected and when a written agreement naming
the United as a party was presented to the respondent on May
7, 1937, it refused to sign the agreement. It agreed, however, to
sign an agreement if the United was not a party thereto. Accord-
ingly, the Committee agreed to designate itself as the Patriarca
Grievance Committee and an agreement between the respondent and
the Patriarca Grievance Committee was signed on May 7. D.
Patriarca signed the agreement for the respondent and the three
members of the bargaining committee selected by the Committee in
April signed the agreement for the Patriarca Grievance Committee.
The agreement provided that it should remain in effect for 1 year and
continue in effect from year to year unless either party shall give
notice of its desire to amend 30 days from date of expiration of the
agreement. It was, by its terms, applicable to all of the respondent's
employees except its bookkeeper. Pursuant to the agreement, the
respondent's employees returned to work on May 8, 1937.
On December 24, 1937, the respondent by letter offered to give
Michael Palmieri, Anthony Meldon, and Anthony Semoneau each
two shares of stock in the respondent if they were respectively em-
ployed by the respondent on January 1, 1940. The three employees
informed the respondent that the offer was accepted. The respondent
states that it always gave the employees a Christmas present con-
sisting of a small raise in wages, a small amount of cash or some
personal gift and that the conditional offer of stock was in the nature
of a Christmas gift to the three employees. We cannot accept this
explanation of the offer of stock. These offers were made to only
three employees, two of whom were members of the bargaining coin-
mittee and the third an employee whom the respondent sought to
substitute for the other member of the committee. This fact makes
paricularly significant Patriarca's testimony that the offers were
made "just to get them (the three employees) close to the company
so they would be more interested in their work." It is also significant
that no outright gift of stock was made, but only an offer to give
PATRIARCA STORE FIXT URES, INC. 99
the stock contingent upon continued employment for 3 years. Under
all the facts, it is clear that the respondent sought by means of the
offers of stock to control the bargaining committee and thereby to
control the Committee. Indeed, it appears that the respondent suc-
ceeded in this purpose. Anthony Meldon, one of the recipients of
the offer, testified that at the time of the hearing the Committee was
holding no meetings, collecting no dues, and had heard no grievances.
In short the Committee is dormant.
We find that the respondent, by locking out and subsequently dis-
charging all its employees, by expressing its determination not to
bargain with the United, by making the conditional offer of stock to
three of its employees, and by other acts set forth above, has inter-
fered with, restrained, and coerced its employees in the exercise of
the right to self-organization, to form, join, or assist labor organiza-
tions, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purposes of
collective bargaining and other mutual aid and protection as guar-
anteed in Section 7 of the Act.
B. The locle-out
The complaint alleges that the respondent locked out all its em-
ployees on April 19, 1937, and discharged all of them on April 27,
1937. The plant was admittedly closed on April 19 because of the
organizational activities of the respondent's employees. Patriarca
stated in a letter to the C. I. 0. dated April 19, 1937, that the respond-
ent closed its plant because "we thought it would give the employees
an opportunity to check on other shops, and would bring the matter
to a point sooner." He testified, however, that the plant was closed
because he anticipated a sit-down strike. Although Patriarca testi-
fied that Palmieri , a member of the Committee and the respondent's
foreman, told him there was going to be a sit-down strike, it does
not appear that the Committee had so determined or so advised
the respondent . Moreover, the only explanation of the discharge of
all the respondent's employees was stated in the discharge notice
which was posted on April 27:
The company heartily regrets the decision and attitude taken
by the employees, which leaves us no alternative than to advise
you to seek employment elsewhere.
The record leaves no doubt that the respondent locked out and then
discharged all its employees for the purpose of destroying the effec-
tiveness of the newly formed Committee.
As stated above, all the respondent's employees except L. Mon-
silillo , were reinstated on May 8, 1937. Monsilillo, who was seriously
169134-39-voI. 12--8
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ill when the plant reopened, was denied reinstatement when he sub-
sequently made application therefor. The complaint does not allege
that such reinstatement was discriminatorily denied. We shall not,
therefore, order the respondent to reinstate him.
We find that the respondent has discouraged membership in the
Committee by locking out and subsequently discharging its em-
ployees, thereby discriminating in regard to hire and tenure of their
employment.
C. The discharge of Morris Kominsky
On April 24, 1937, while on the picket line, Morris Kominsky, the
only salesman employed by the respondent, attempted to dissuade
Cornelius J. Mulcahy, a representative of the A. F. of L., from en-
tering the respondent's offices. Thereupon, Patriarca, the president-
manager, opened the office door and punched Kominsky in the back.
Two days later Kominsky received notice of discharge effective
May 22, 1937.° The notice gave no reason for the discharge.
When the plant reopened on May 8, 1937, Kominsky returned to
work with the other employees and continued to work until May 22.
However, when Kominsky reported for work on the Monday fol-
lowing May 22, he was told that his employment was at an end.
The respondent contends that Kominsky was incompetent and in-
efficient; that he made certain discrediting remarks about the re-
spondent to customers; that he was unable to work in harmony with
the management; and that it no longer needed a salesman. The
respondent claims that the discharge was predicated upon these
grounds.
Kominsky admitted that on two occasions he made discrediting
remarks about the respondent to customers. However, these re-
marks were made several months before Kominsky was discharged
and they were prompted by Patriarca's conduct and use of abusive
language directed toward one customer and made in the presence of
another customer. It seems that Kominsky's purpose in making
the remarks was to soften the harsh effect of Patriarca's conduct
rather than to discredit the respondent. We think Korinsky's
remarks did not contribute to his discharge.
The evidence does not sustain the respondent's claim that Kominsky
was incompetent and inefficient. The sales report and commission
sheet from March 1936 to May 1937, inclusive ,7 shows that Komin-
sky's sales for April 1937, the month in which Kominsky was given
his notice of discharge, were substantially greater than his sales in
"At the time of his discharge , Kominsky was working under a written contract dated
February 10, 1936, which provided for 4 weeks' written notice prior to termination of
employment.
7 Board Exhibit No. 5.
PATRTARCA STORE FIXTURES, INC. 101
any one of 10 of the entire 15 months' employment, and compared
favorably with the remaining 4 months. April sales were consider-
ably larger than those in any of the preceding 3 months of 1937.
The evidence shows, moreover, that Kominsky on a number of oc-
casions prior to his discharge, tendered his resignation and that on
each occasion the respondent induced Kominsky to remain in its
employ by making certain concessions.
There is considerable uncontradicted testimony concerning many
disagreements between Patriarca and Kominsky. Patriarca testified
that within 3 months after Kominsky was employed, disagreements
arose concerning sales policies and the manner in which Kominsky's
commissions should be figured. It suffices to note, however, that
although such disagreements continued at intervals during the entire
period of Kominsky's employment, the respondent never saw fit to
discharge Kominsky until he became active in organizing the
respondent's employees. On the contrary, Kominsky testified that
he tendered his resignation in June 1936, twice in September 1936,
and again on December 12, 1936, and that on each of these occasions
the respondent made certain concessions to Kominsky and thereby
induced him to remain in the respondent's employ. The respondent
did not contradict this testimony except that Patriarca did state that
he continued Kominsky's employment after he tendered his resigna-
tion on December 12, 1936, because Kominsky's wife requested him
to do so. The fact remains that the respondent at that time did
modify the working agreement in Kominsky's favor and thereby
induced him to remain in the respondent's employ.
The respondent's claim that it no longer needs a salesman is not
supported by the evidence. That the respondent contemplates use of
a salesman is indicated by the fact that the agreement of May 6,
signed prior to the effective date of Kominsky's discharge, makes
specific reference to a salesman. Moreover, after Kominsky's dis-
charge, the respondent attempted to secure someone who could do
both selling and drafting and, with this purpose in mind, interviewed
several persons. It did not, however, employ anyone to replace
Kominsky.
The respondent further claims that Kominsky resigned on May 5,
1937, and thus prior to the effective date of his discharge. The evi-
dence does not support this claim. It appears that Kominsky offered
to resign if the respondent would immediately pay him all commis-
sions due him and sign an agreement recognizing the United and
reinstating all employees. The respondent did not fulfill these con-
ditions and Kominsky clearly ceased working because of his discharge
and not as a result of a resignation.
Not only does the evidence fail to support the reasons advanced by
the respondent for the discharge of Kominsky, but it indicates clearly
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the discharge was pr6mpted by Kominsky's activities on behalf
of the Committee. Kominsky was elected secretary of the Committee
in April and was an active participant and leader in the attempts of
the employees to organize and to bargain collectively with the
respondent. He was a member of the bargaining committee selected
by the Committee and after the plant was closed took charge of the
activities on the picket line. He received notice of his discharge at
a time when his organizational activities were most effective.
We find that the respondent discharged Kominsky on May 22, 1937,
because of his activities on behalf of the Committee. By said dis-
charge of Kominsky the respondent has discriminated against him,
thereby discouraging membership in a labor organization, and has
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
For a period of 7 weeks subsequent to his discharge on May 22,
Kominsky was unemployed. At the end of the 7-week period, he
obtained employment selling used cash registers and earned approxi-
mately $25 per week. He was so employed at the time of the original
hearing. He testified that he desired reinstatement in the employ
of the respondent.
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 respond-
ent described in Section I above, have a close, intimate, and substan-
tial relation to trade, traffic, and commerce among the several States,
and tend to lead and have led to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
We have found that the respondent has interfered with, restrained,
and coerced its employees in the exercise of their right to self-
organization. We shall order the respondent to cease and desist from
so doing.
We have found that as a part of the said interference, restraint,
and coercion, the respondent made a written offer to give Anthony
Meldon, Michael Palmieri, and Anthony Semoneau each two shares
of stock in the respondent if they are in the respondent's employ on
January 1, 1940. We shall order the respondent to make written
withdrawal of said offer.
We have found that the respondent discriminated against all its
employees from April 19 to May 8, 1937. We shall order the respond-
ent to make whole all employees on its pay roll as of April 19,1937, for
PATRIARCA STORE FIXTURES, INC. 103
any losses they may have suffered by reason of the discrimination by
the payment to each of them, respectively, of a sum equal to the amount,
which each of them normally would have earned during the period
from April 19 to May 8, 1937, less his net earnings 8 during said period.
For the reasons stated above we shall not order the respondent to rein-
state Monsilillo. We shall, however, include him among the em-
ployees who are entitled to back pay during the period from April 19
to May 8, 1937.
We have found that the respondent discriminated in regard to the
hire and tenure of employment of Morris Kominsky by discharging him
on May 22, 1937. We shall order the respondent to offer Kominsky
reinstatement 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 net commis-
sions from the date of his discharge to the date of the respondent's
offer of reinstatement, less his net earnings during said period.
At the time of his discharge, Kominsky earned as commissions 4
per cent of the gross sales of the respondent. His expenses as salesman
amounted to approximately $20 per week. The Trial Examiner
recommended in his Intermediate Report that the amount Kominsky
would normally have earned as wages during the period from his dis-
charge to the date of the respondent's offer of reinstatement be deter-
mined on the basis of his average weekly net commissions during the
6-month period immediately preceding his discharge. Thereafter,
Kominsky filed exceptions to such recommendation and alleged that
said determination should be upon the basis of his average net com-
missions over the entire 15-month period of his employment. Under
all the circumstances, we conclude that the said determination should
be based upon the weekly average net commissions of Kominsky dur-
ing the 12-month period immediately preceding his discharge.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONOLusIONs OF LAW
1. Patriarca Grievance Committee is a labor organization, within
the meaning of Section 2 (5) of the Act.
e By "net earnings " is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with seeking work or working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of
Ameieca, Lumber and Sawmill Workers Union, Local 2590, 8 N L R . B. 440 Monies re-
ceived 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 govern-
ment or governments which supplied the funds for said work -relief projects.
104 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
2. The respondent, by discriminating in regard to the hire and
tenure of employment of its employees, and thereby discouraging
membership in a labor organization, has engaged in and is engaging in
unfair labor practices, within the meaning of Section 8 (3) of the Act.
3. The respondent, by interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in Section 7 of
the Act, has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
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 Patriarca
Store Fixtures, Inc., and its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Discouraging membership in Patriarca Grievance Committee,
or any other labor organization of its employees, by discharging any
of its employees because of membership in Patriarca Grievance Com-
mittee, or any other labor organization, or by discriminating in any
other manner in regard to their hire or tenure of employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
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 Rela-
tions Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer immediate and full reinstatement to Morris Kominsky
to his former or substantially equivalent position;
(b) Make whole Morris Kominsky for any loss of pay he has
suffered by reason of the respondent's discrimination in regard to his
hire or tenure of employment by payment to him of a sum of money
equal to that which he normally would have earned as net commis-
sions, figured in the manner outlined in Section V hereof, during
the period from the date of such discrimination to the date of the
offer of reinstatement, less his net earnings during such period, de-
ducting, however, from the amount otherwise due him, any monies
received by said employee during said period for work performed
PATRIARCA STORE FIXTURES, INC. 105
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 gov-
ernments which supplied the funds for said work-relief projects;
(c) Make whole all its employees on its pay roll as of April 19,
1937, for any loss of pay they have suffered by reason of the re-
spondent's discrimination in regard to their hire and tenure of em-
ployment by payment to each of them respectively, of a sum of money
equal to that which each of them normally would have earned as
wages or net' commissions during the period from April 19 to May
8, 1937, less the net earnings of each of them during said period,
deducting, however, from the amount otherwise due to each of said
employees, any monies received by said employees 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 supplied the funds for
said work-relief projects;
(d) Make written withdrawal of the offer to give Anthony Meldon,
Michael Palmieri, and Anthony Semoneau shares of stock in the re-
spondent company on condition that they are in the respondent's em-
ploy on January 1, 1940;
(e) Post immediately in conspicuous places throughout its plant
and maintain for a period of at least sixty (60) consecutive days
after posting, notices stating (1) that the respondent will cease and
desist as aforesaid; and (2) that the respondent has withdrawn its
offer to give shares of stock to the three named employees;
(f) Notify the Regional Director for the First Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.