The Federbush Co., Inc.

National Labor Relations Board - Board Decisions

Aug 20, 1941

34 N.L.R.B. 539 (N.L.R.B. 1941)

In the Matter of THE FEDERBUSH CO., INC. and UNITED PAPER WORK-
ERS, LOCAL 292, AFFILIATED WITH THE UNITED PAPER, ENVELOPE
AND Toy WORKERS' INTERNATIONAL UNION, C. I. 0.
Case No. C-1859.-Decided August 00, 1941
Jurisdiction : loose-leaf binder manufacturing industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: anti-union statements.
Statements which were normally calculated to reach the employees and
discourage them from joining or assisting the union constitutes interference
with and restraint of employees in violation of 8 (1), although made to
the union's business manager, who was not an employee of the respondent.
Discrimination: inducement of employee to resign by notifying him of imminent
discharge, because of his union activities ; charge of insubordination as to
one employee a pretext and not the real reason for his discharge, which was
in fact motivated, by employee's union activities ; discharge of an employee
because of union activities rather than negligence ; two employees in fact
discharged because of union activities, rather than laid off because of lack
of work and told to report in 2 weeks, as alleged by employer.
Remedial Orders : reinstatement with back pay from date of discharge to
date of offer of reinstatement ordered as to three employees who desire
reinstatement; back pay from date of discharge to date upon which other
employment was obtained ordered as to one employee who does not desire
reinstatement; reinstatement, upon his application within 30 days after his
future discharge from army, ordered as to employee who enlisted in army
after his discharge by employer; back pay ordered to be paid to latter em-
ployee both for period between date of discharge by employer to date of
enlistment, and for period between date 5 days after his timely application
for reinstatement after his discharge and date of offer of reinstatement.
Mr. Daniel R. Dimick, for the Board.
Mr. Irving D. Springer, and Mr. Jacob E. Hurwitz, of New York
City, for the respondent.
Mr. Moses C. Weinmzan, of New York City, for the Union.
Miss Mary E. Perkins, of counsel to the Board.
34 N. L. R. B., No. 75.
539
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon amended charges 1 duly filed by United Paper Workers,
Local 292, affiliated with the United Paper, Envelope and Toy Work-
ers' International Union, C. I. 0.,2 herein called the Union, the Na-
tional Labor Relations Board, herein called the Board, by the Acting
Regional Director for the Second Region (New York City), issued
its complaint dated January 25,1941, against The Federbush Co., Inc.,
of New York City, herein called the respondent, alleging that the
respondent had engaged in and was engaging in unfair labor prac-
tices affecting commerce, within the meaning of Section 8 (1) and
(3) and Section 2 (6) and (7) of the National Labor Relations Act,
49 Stat. 449, herein called the Act. Copies of the complaint, accom-
panied by notice of hearing, were duly served upon the respondent
and the Union.
With respect to the unfair labor practices, the complaint alleged in
substance (1) that the respondent discouraged membership in the
Union by discharging 5 named employees on specified dates,3 and
thereafter refusing to reinstate them, because they joined or assisted
the Union or engaged in concerted activities for the purposes of col-
lective bargaining or other mutual aid or protection; (2) that the
respondent from about January 18, 1940, has urged, persuaded, and
warned its employees to refrain from aiding, or becoming or remain-
ing members of, the Union, and has threatened its employees with
discharge or other reprisals if they aided the Union or its members;
and (3) that by the foregoing and other acts, the respondent has
interfered with, restrained, and coerced its employees in their exer-
cise of the rights guaranteed in Section 7 of the Act.
On February 10, 1941, the respondent filed its answer denying that
it had engaged in any of the alleged unfair labor practices and making
affirmative allegations discussed more specifically hereinafter.
'The original charge was filed on August. 1, 1940; amended charges were filed on Sep-
tember 25, 1940; and further amended charges , upon which complaint issued, were filed
November 8, 1940
2 The original complaint named the Union as United Paper Workers, Local Industrial
Union No. 292, affiliated with the C I. 0., but it, appears that this name was changed,
at a conference late in 1940, to that appearing in the heading.
8 Anthony Bartolo, February 9, 1940 ; Louis Cantor, February 17, 1940 ; Hyman Kravitz,
February 16, 1940 ; Anthony Napoli, February 6, 1940 ; and Joseph Russo, February 9, 1940.
Pursuant to a ruling granting a motion to conform the pleadings to the proof, the com-
plaint was amended to change the dates of the alleged discriminatory, discharges as follows :
Bartolo, February 15, 1940; Cantor, February 23, 1940; Kravitz , May 10 , 1940; Napoli,
February 1, 1940; and Russo, March 12, 1940.
THE FEDERBUSH CO., INC. 541
Pursuant to notice, a hearing was held at New York City, from
February 6 to 15,1941, before Gustaf B. Erickson, the Trial Examiner
duly designated by the Chief Trial Examiner. The Board, the
Union, and the respondent were represented by counsel and partici-
pated in the hearing. All parties were afforded full opportunity to
be heard, to examine and cross-examine witnesses, and to introduce
'evidence bearing upon the issues.
On February 10, 1941, the respondent filed a motion for a bill of
particulars. This motion was denied by the Trial Examiner.4 At
the close of the Board's case, and again at the close of the hearing,
the respondent moved to dismiss the complaint. The Trial Examiner
reserved his ruling on this motion, and denied it in his Intermediate
Report. At the close of the hearing the Trial Examiner granted
without objection the Board's motion to amend the pleadings to con-
form to the proof in respect to such matters as names and dates.5
During the course of the hearing the Trial Examiner made several
rulings on other motions and on objections to the admission of evi-
dence. The Board has reviewed all the rulings of the Trial Examiner,
and finds that no prejudicial error has been committed. The rulings
are hereby affirmed.
On April 10, 1941, the Trial Examiner filed his Intermediate Report,
copies of which were duly served on the respondent and the Union,
in which he found that the respondent had engaged in and was engag-
ing in unfair labor practices affecting commerce, within the meaning
of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act. The
Trial Examiner recommended that the respondent cease and desist
from the unfair labor practices found, offer reinstatement to Louis
Cantor, Hyman Kravitz, and Joseph Russo, make whole Anthony
Bartolo, Anthony Napoli, Louis Cantor, Hyman Kravitz, and Joseph
Russo for loss of pay suffered as a result of the respondent's unfair
labor practices, and take certain other action appropriate to remedy
the situation brought about by the respondent's unfair labor practices.
Thereafter, the respondent filed its exceptions to the Intermediate
Report, and a brief in support of its exceptions: On May 29, 1941,
pursuant to notice duly served upon the respondent and the Union,
a hearing for the purpose of oral argument was held before the Board
in Washington, D. C. The respondent was represented by counsel, and
participated in the hearing. The Board has fully considered the re-
spondent's exceptions and its brief in support thereof and, to the'
* The Trial Examiner. advised the respondent 's counsel that the respondent would be
afforded a reasonable period of time to prepare a defense to any material matters, upon a
showing that it had been surprised as to them . No claim of surprise was thereafter
made by the respondent.
6 The correct name of the claimant Bartolo is Intrabartolo. The name Bartolo is used
herein because that was the name used throughout his employment with the respondent,
and at the hearing.
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
extent that the exceptions are inconsistent with the findings of fact,
conclusions of law, and the order set forth below, finds them to be
without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT 6
The Federbush Co., Inc., is, and has been since September 19, 1932,
a corporation duly organized under and existing by virtue of the laws
of the State of New York, having its principal office and place of
business at 91 Seventh Avenue, New York, New York.
The respondent is engaged in the manufacture, sale, and distribu-
tion of loose-leaf devices and related products. The principal raw
materials used by the respondent in the operation of its business are
leather, imitation leather, canvas, paper, board, cloth, and metals.
During the year 1939, the respondent purchased raw materials in
the value of $125,000, of which approximately 60 per cent were shipped
from points outside the State of New York. During the same period,
the respondent manufactured finished products in the value of over
$300,000, of which approximately 50 per cent were shipped to points
outside the State of New York. The respondent is engaged in inter-
state commerce within the meaning of Section 2 (6) and (7) of the
Act.'
H. THE ORGANIZATION INVOLVED
United Paper Workers, Local 292, affiliated with the United Paper,
Envelope and Toy Workers' International Union, C. I. 0., is a labor
organization affiliated with the Congress of Industrial Organizations.
It admits to membership employees of the respondent's New York
City plant.
III. THE UNFAIR LABOR PRACTICES
A. The officers and supervisory employees of the respondent
The respondent 's officers are Charles Federbush, president; Irving
Federbush, secretary; and J. D. Federbush, treasurer. Irving Feder-
bush is the general manager of the respondent's plant. Max Feder-
bush is assistant to Irving in the order department. Max was presi-
6 The facts set forth- in this section are taken from a stipulation between counsel for
the Board and counsel for the respondent.
' The respondent stipulated that it was "engaged in commerce within the meaning of
Section 2 of the National Labor Relatigns Act" and that the jurisdiction of the Board
was not contested.
THE FEDERBUSH CO., INC. 543
dent of the respondent's predecessor, Federbush Brothers Looseleaf
Company, Inc. During the strike, hereinafter' described, Max served
several summonses on strikers and, as he testified, "locked up a couple
of people during the strike." Sam Federbush is superintendent or
foreman of the respondent's bindery department. Nathaniel Feder-
bush is in charge of the respondent's stamping department. Irving
Federbush testified that only he and Charles were authorized to speak
for the respondent on labor relations and labor policies and that Max,
Sam, and Nathaniel had no such authority. However, it is well
settled that the respondent is answerable under the Act for statements
and acts directed to its employees by each of its agents named above
by virtue of their positions and functions." Besides the Federbushes,9
there are other supervisory employees, some of whom will be mentioned
hereinafter.
B. Background
On June 18, 1940, the Board issued a Decision and Order against
the respondent herein in Matter of The Federbush Co., Inc. and
United Paper Workers, Local Industrial Union No. 292, affiliated
with the C. I. 0.10 The Union which filed the charges in that case
is the same as the charging union herein. In the Decision in the
former case, the Board stated, among other things-:
We find that the respondent, by making anti-union statements
to its employees, by disparaging the leaders of the-Union and their
motives, by threatening to close the plant part of the year if the
employees organized, by watching and following the union or-
ganizers, and by otherwise interfering with their efforts to con-
tact the employees, has interfered with, restrained and coerced
its employees in the exercise of the rights guaranteed in Section 7
of the Act.
and
We find that on October 27, 1939, and at all times thereafter, the
respondent refused to bargain collectively with the Union as the
8 See H J Heinz Co. v N L R B, 311 U S 514, affirming 110 F. (2d) 843 (C C. A 6),
enforcing the order in Matter of H. J. Heinz Company and Canning and Pickle Workers,
Local Union No. 325, etc., 10 N. L. R. B 963; N. L. If. B. v. Link-Belt Co., 311 U. S. 584,
reversing modification of Board's order in Lank-Belt Co. v. N. L. R. B., 110 F. (2d) 506
(C. C. A 7), enforcing as modified the order in Matter of Link-Belt Company and Lodge
1604 of Amalgamated Association of Iron, Steel and Tin Workers of North America, etc.,
12 N L R B 854.
9 Because there are six Federbushes , they will sometimes hereinafter be called by their
first names
1124 N. L R B 829 The hearing in that case was held from February 15 to Feb-
ruary 23 , 1940. On September 16, 1940, the Board filed a petition with the United States
Circuit Court of Appeals for the Second Circuit for enforcement of the order in that case.
On July 18, 1941, the court rendered its decision enforcing the Board ' s order in full.
N. L R B. v. Federbush Co, Inc. (C. C. A. 2), decided July 18, 1941.
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exclusive representative of its employees in an appropriate unit
with respect to rates of pay, wages, hours of employment, and
other conditions of employment, and that the respondent has
thereby interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act.
Evidence of certain incidents which afford a background to the alle-
gations of the complaint herein, but which occurred prior to the
hearing in the earlier case, was introduced for the first time at the
hearing in the instant case. These incidents are set forth below.
On October 27, 1939, 48 of the 50 production and maintenance
employees of the respondent went on strike. During the strike, the
respondent continued to operate its plant with the aid of strike-
breakers. Max Federbush operated a delivery truck for the respond-
ent during the strike. In performing this function, he had ample
opportunity to observe the conduct of the strikers. Although he tes-
tified that he had two unnamed strikers "locked up" for tampering
with Sam Federbush's automobile, he testified that the strikers "were
very nice to me, all the boys." To the following question later asked
by the respondent's counsel:
At times during the strike there was violence, wasn't there?
Max replied :
Oh, yes, sometimes; not very often. It was conducted very
peaceably; Sometimes they got a little wild; when they had a
couple of strange faces, then there used to be trouble, but when
the regular fellows were around it was all right.
Nevertheless, on November 9, 1939, the respondent mailed the
following letter to each of its striking employees :
NOTICE TO OUR STRIKING EMPLOYEES
Your attention is directed to a part of the decision reported in
the New York Times this morning, concerning reinstatement of
Republic Steel employees. In this case the court sustained the
Company's right to refuse reinstatement to strikers who have
resorted to violence.
While it is our intention to fully comply with the law, and
when and if requested, will reinstate to his former position each*
of our striking employees, we will, nevertheless, fully preserve
our legal rights in connection with employees who resort to
violence.
The sole purpose of this notice is to curb further violence.
THE FEDERBUSH COMPANY, INC.
THE FEDERBUSH CO., INC. 545
During the second or third week of the strike, Hyman Kravitz, a
picket captain whose alleged discriminatory discharge is hereinafter
discussed, observed Sam Federbush motioning to one of the strikers
to enter the building in which the plant is located. When Kravitz
informed the striker of 'Sam's purpose, Sam brought a policeman on
duty at the entrance of the building and requested the policeman to
arrest Kravitz for calling him names. Kravitz denied the charge
and was not arrested. There is considerable other evidence, discussed
in part below, indicating that the respondent attempted to discourage
strike activity by making vague and unsubstantiated charges to the
police against strikers.
Frank Grasso, the Union's manager, testified that he held almost
daily conversations with Max Federbush during the strike and that
Max told him on a number of occasions "he knew the active leaders
of the strike because he had planted some spies." Anthony Bartolo
testified that Max once asked him, while Bartolo was on the picket
line during December :
Wouldn't it be nice to be working in a warm shop instead of be-
ing broke and fighting for something you will never get?
Max testified that he never spoke to Grasso "about any labor policies"
at any time, although he admitted having frequent conversations with
Grasso; and he denied knowing Bartolo. The Trial Examiner did not
credit Max Federbush's testimony in this respect and found that Max
made the above statements substantially as they were attributed to
him by Grasso and Bartolo. We adopt this finding.
On January 17, 1940, the Union telegraphed the respondent as
follows :
UNION WILL TERMINATE STRIKE PENDING LABOR
BOARD DECISION ON UNFAIR LABOR PRACTICE
CHARGES. STRIKING EMPLOYEES WILL UNCONDI-
TIONALLY APPLY FOR REINSTATEMENT ON JANU-
ARY 18 AT 9 AM.
Within a week all the striking employees had been reinstated.
When the striking employees returned to work on and immediately
following January 18, 1940, they found the following notice on the
.respondent's time clock :
NOTICE
To Employees: In order to prevent internal disputes, and ineffi-
ciency, all employees will hereafter be required to carefully ob-
serve the following regulations. Compliance will be strictly
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
enforced , and a violation will subject employees to immediate
discharge without notice.
1. No employee shall discuss Union affairs , strike history, or
labor laws in or about the Company 's premises.
2. No employee shall use abusive language , toward any other
person employed by or connected with the Company, on [sic]
matters what the cause and irrespective of provocation.
3. No employee shall in any manner by word or action dis-
turb or interfere with the other employees during working hours.
4. All employees will be held strictly accountable for proper
discipline, operating efficiency and care of the Company prop-
erty.
5. No employee shall at any time or any place resort to physi-
cal violence directed against any other person employed by or
connected with the Company.
THE FEDERBUSH C011iPANY, INC.
Irving Federbush testified that this notice was posted shortly after
the respondent received notice that the Union was terminating the
strike and , concerning the reason for its posting , testified :
The reason for it was so that when they had come back we do
not have a series of discussions as to what happened and what
could or should or would have happened . We accepted them
back on the basis that they went out, and we desired to close the
striking period of October 27 to January 18, and for that reason
we suggested and demanded that there be no discussion of any
kind within the shop in connection with the strike or acts of
violence or fists raised at one another or disagreements between
members of the Union themselves , as to what should have hap-
pened and should not have happened.
So I formed this letter and I posted it there just as a warning
so there would be complete harmony at all times.
On or about January 27, 1940, Sam Federbush told Anthony
Napoli, the Union's shop chairman, whose discriminatory discharge.
is discussed below , that he was not to have any further contact with
the employees 'during the noon hour . Prier to the strike Napoli
had talked to his fellow employees during the lunch hour without
restrictions.
In late January, shortly after Kravitz was rehired after the strike,
Kravitz met Max Federbush and Grasso outside the plant. Kra-
vitz greeted Grasso, and was about to engage in conversation with
him; Max, however , intervened , telling Kravitz that he did not like
the idea of Kravitz talking to Grasso . Kravitz replied that when he
THE FEDERBUSH CO., INC. 547
worked in the plant he did his best for the respondent, but that what-
ever he did outside of working hours was his own business.
The foregoing activities of the respondent afford a useful basis
for evaluating events which subsequently occurred at the respondent's
plant, and which are discussed below, under Section III D.
C. Interference, restraint, and coercion
In March 1940, Grasso came to the neighborhood of the plant to
see some of the union employees and there engaged in a conversation
with Max Federbush. Grasso's testimony concerning parts of this
conversation was as follows :
I told him I had come down to see some of the people;
that we had not lost interest in the Federbush case, the company
and the employees; not so much the company, but the employees.
He [Max] told me that I was wasting time. I said that it was
a question of a few more weeks or months, and that we would
get a ruling from the Labor Board and we were confident that
we would get a fovorable ruling, and that upon that, we would
then negotiate for a contract.
Mr. Max Federbush told me that-well, he minimized the things
that I told him and he said I was wasting time, and even if the
ruling would'be in favor of the Union, the company might sit
down to talk things over but that no contract would be signed,
and that, after all, nothing could be done to the company to
compel them to actually negotiate and sign a contract with the
Union.
Grasso testified further that Max told him that the respondent would
still refuse to sign a contract with the Union even though the Cir-
cuit Court directed the respondent to bargain collectively with the
Union, and that Max further stated that "the workers were losing
interest in the Union and by the time the case would come up in
the Court or the Labor Board ruling would come down I would be
left with no members at all." Max Federbush did not specifically
deny this conversation and his denial of having any conversations
with Grasso concerning "labor policies" has already been discredited
The respondent argues that, since Grasso was not an employee of
the respondent, Max's statements to him cannot be considered a
restraint or coercion of its employees, and hence do not constitute a
violation of the Act. We find the respondent's contention to be
without merit. An employer may make his opposition and hostility
to a union known to his employees in many ways other than by stating
it to them personally. Max's statements, made to the Union's organ-
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
izer, were of a character normally to be calculated to reach the
employees and to discourage them from joining or assisting the Union.
We find that by Max's statements to Grasso the respondent has inter-
fered with, restrained, and coerced its employees in their exercise of
the rights guaranteed in Section 7 of the Act.
D. The discriminatory discharges
To the allegation of the complaint that Bartolo, Cantor, K ,avitz,
Napoli, and Russo were discriminatorily discharged, the respondent
made a general denial.''
The respondent also asserted in its answer that these employees
"by reason of their failure to act in good faith and within a reason-
able time after the alleged discharges are guilty of lathes." This
contention we find to be without merit. The equitable principle
of lathes is not applicable to proceedings brought by the United
States Government in the public interest; 12 moreover, the record
does not establish any unreasonable delay in the filing of charges in
this case. The record shows that Grasso, the Union's manager, con-
ferred with Hurwitz, the respondent's attorney, immediately after
the filing of the Intermediate Report in the earlier case, on April 9,
1940; and again after the issuance of the Decision on June 18, 1940;
and that Hurwitz informed Grasso that the question of the discharges
would be easily disposed of once the respondent could be made to
realize that it had to bargain collectively in good faith with the
Union. On June 29, 1940, the Board's Regional Director in New York
informed Grasso that the respondent was still considering the dis-
position of the former case. In July 1940, the respondent notified
the Regional Director that it would not comply with the Board's
former Decision and Order. Thereafter, on August 1, 1940, the
Union filed the first charges of discrimination, naming all the em-
ployees considered herein.
Contrary to the respondent's contention that all of the strikers
participated equally in the strike activities both in fact and so far
11 Affirmative defenses to the individual cases will be discussed below.
12 See Matter of Colorado Milling & Elevator Company and Denver Trades and Labor
Assembly, 11 N. L. R. B. 66, in which the Board stated :
... The Board acts in the public interest to effectuate an important national policy
designed to eliminate the causes of certain obstructions to the free flow of commerce
by the mitigation and elimination of unfair labor practices which tend to cause in-
dustrial stiife and unrest. Such benefits as the Board 's remedial orders confer upon
individual employees are only incidental to the exercise of its power to effectuate the
policies of the Act by remedying conditions created by unfair labor practices It is well
settled that the equitable prihciple of laches is not applicable to the government
acting in the public interest.
See also Matter of Mooremack Gulf Lines, Inc. and Commercial Telegraphists' Union,
Marine Division , Affiliated with the A F. of L , 28 N. L . R. B. 869.
THE FEDERBUSF3 Co., INC. 549
as the respondent knew, the record establishes that the five employees
allegedly subject to discrimination after the strike had been among
the most active union members and strikers. Napoli joined the
Union on July 14, 1939, and shortly before the strike he was elected
shop chairman of the Union. As shop chairman, Napoli had several
conferences with representatives of the respondent before the strike.
Bartolo, Cantor, Kravitz, and Russo joined the Union on various
dates between September 31 and October 18, 1939. The record
discloses no unusual concerted activity on their part prior to the
strike.
At the beginning of the strike, the Union selected a special strike
committee composed of Napoli, Kravitz, and one Weinstein. During
the strike Napoli presided at union meetings and took his turn at
picketing and carrying a placard. Kravitz was elected picket cap-
tain the day the strike was called and as such he saw that the pickets
were assigned to their posts at appropriate times during the day and
helped run the food kitchen for the pickets. Bartolo engaged in
picketing beyond the average time allotted the strikers and volun-
teered as a picket captain about 2 weeks after the strike began. As a
picket captain he helped serve the strikers lunches at the union hall.
Both Cantor and Russo carried union placards on the picket line
and were paid small amounts of money by the Union for engaging
in "extra" picketing, i. e., picketing beyond the amount ordinarily
allotted to or done by the average striker.
Each of the five claimants came into direct contact with one or
more of the respondent's officers or supervisory employees in con-
nection with their strike activities. As described above, Max Feder-
bush made a statement to Bartolo when he was picketing which dis-
couraged picketing and concerted strike activity. On another occa-
sion Sam Federbush was escorting strikebreakers into the plant;
Bartolo, who was then in the picket line, was about to speak to the
strikebreakers when Sam said : "Get the hell out of here, you Guinea
s. o. b." Both Bartolo and Cantor were arrested upon the represen-
tation of Max Federbush that they had deflated the tires of Samuel
Federbush's automobile. The cases against them were dismissed.
Once when Cantor called to some strikebreakers in Sam Federbush's
presence at the entrance to the plant, Sam told him : "Go whiff ' your-
self." Sam attempted, as described above, to have Kravitz arrested,
allegedly for calling him names. Once when Max Federbush was en-
gaged in delivering merchandise during the strike, Kravitz followed
him in a taxi and when both stopped at a red light, Max informed a
policeman that Kravitz was following him. Kravitz testified that on
this occasion, as the truck and the taxi stopped beside each other,
Max "put his head out of the window and called out to me not to
451269-42-vol. 34-36
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
follow or he will fix me for it. . . . He also said that if I don't
watch out, he will get even." Max denied that he ever told any of
the strikers that he would "fix" them, because he had "no connection
with those boys.... I am in the office." Max's testimony is gener-
ally unconvincing, and he had earlier admitted that he exchanged
remarks with the strikers, and had them stopped by the police when
they attempted to follow him. We are of the opinion, and find,
that Max threatened Kravitz substantially as testified by the latter.
On one occasion when Russo and several strikers had been arrested,
.Irving Federbush told the police that Russo was "the guy that
causes all the trouble." On another occasion Max Federbush handed
Russo a summons charging him and another striker with assaulting
Bennie Krebs, the respondent's shipping clerk. Both of the charges
agYainst Russo were dismissed and in each case he was released. Both
Cantor and_ Russo followed J. D. Federbush and Max Federbush
when these Federbush brothers were either making deliveries for
the respondent or transporting strikebreakers to and from the plant.
Two strikers, Silverman and Ehrenman, were called by the re-
spondent and testified on direct examination that the other strikers
were equally active in their participation in the strike. But on
cross-examination Silverman admitted that Kravitz and one Wein-
stein were strike captains and that Russo picketed more than the
average striker; and Ehrenman testified that he believed Napoli and
Weinstein were the strike leaders and that Kravitz was in charge
of the pickets. We find that the respondent was well aware of the
extensive activities of Bartolo, Cantor, Kravitz, Napoli, and Russo
on behalf of the strike and the Union 13
1. Anthony Napoli
Napoli was employed by the respondent on June 22, 1936, as a
specialist in celluloid-index work. At that time he was promised
steady employment by Nathaniel Federbush and until the strike he
was steadily employed. He was the only employee capable of doing
celluloid-index work annd sometimes had a helper to aid him in his
work. During the course of his employment, he worked in the
celluloid-index department approximately 65 per cent of the time;
when the respondent had on hand no orders involving celluloid work,
however, Napoli was transferred to work in other departments of the
plant in order to keep him steadily employed. Between 1936 and
January 30, 1939, Napoli received three wage increases. He was
considered a satisfactory employee.
'$ It may be recalled that Max Federbush told Grasso that Max knew the active leaders
of the strike because he had "planted" labor spies.
THE FEDERBUSH CO., INC. 551
As set forth above, Napoli was shop chairman of the Union, and
during the strike was chairman of the strike committee. Along
with the other strikers, he applied for reinstatement on January 18.
Pursuant to a telegram from the respondent directing him to report
to work, Napoli returned to the plant on January 26, 1940, and was
assigned to his former position. However, he did not find his card
in the time clock, so he asked Sam Federbush about his card. Sam
told him he had the card in his possession, and according to Napoli
the following conversation ensued :
Then he looked at me and told me, "Drop that cigarette, I don't
want you to smoke here." I says, "Why?" He says, "Well,
I just don't want you to smoke here, that's all." I said: "You
are smoking and my fellow workers are smoking." He says,
"You never mind that, if you don't like it you can check out."
He told me the shop could get along without a shop chairman.
This conversation took place before a number of the other employees
who were waiting for the bell to start work. When Sam was ques-
tioned concerning this incident, he said that he had told employees
throughout the plant not to smoke because of the fire hazard. He
did not deny that he told Napoli that the plant could get along with-
out a shop chairman. We find, as did the Trial Examiner, that
Napoli's version of what occurred is substantially correct.
The next day, when Napoli returned from lunch, he went to the
locker room on the sixth floor to hang up his coat and hat. He
was about to join some of the other employees who were engaged
in a discussion of the notice mentioned above, which had been posted
by respondent on the time clock, when Sam Federbush engaged
'Napoli in conversation. According to Napoli's undenied testimony,
which the Trial Examiner credited as true, Sam told Napoli that
when he returned from his lunch he was to go at once to his own
department on the fifth floor; and when Napoli protested to Sam that
it was his lunch period, Sam replied : "I don't want you to associate
with the workers up here." Napoli thereupon left the others, and
went to his own department, where he waited until the bell rang
to start work. It is undenied that prior to the strike Napoli had
engaged in conversations with other employees during the noon hour
without restraint from the respondent.
Napoli last worked for the respondent on February 1, 1940. The
testimony concerning the severance of his employment is in sharp
conflict. The respondent's answer alleges that "Napoli voluntarily
resigned and terminated his relationship as employee with the re-
spondent." In support of this claim, Irving Federbush testified that
Napoli lagged in his work after the strike, appeared ill at ease around
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the plant, and on February 1 came to Irving and told him that lie
wished to leave the respondent's employ at once. Irving testified
that he requested Napoli to complete the job he was then working on;
but that Napoli refused, whereupon Irving told him to sign his time
card, and call for his pay the following Wednesday (February 7).
The card in question was signed by Napoli and in Irving's hand-
writing there appears the following : "I hereby resign as of today,
dated February 1, 1940."
Napoli's version of the circumstances surrounding his severance
of employment was as follows : On January 30, 1940, Sam Federbush
told him that the respondent had only 11/2 or 2 days' work in his
department and that thereafter he would be laid off. Napoli -pro-
tested that prior to the strike it had been customary for him to be
transferred to other departments when work in his specialty was
slow, and that Nathaniel Federbush, his foreman, had promised him
steady employment at the time he was interviewed for employment.
Sam replied : "Since the strike, things are not going to be the same
around here. We are only giving steady employment to those who
have stood by us." On the next day, Sam Federbush told Napoli
that Irving wanted to see him. Irving then told Napoli that he was
to be laid off because the respondent was discontinuing the celluloid-
index department. Irving further stated that Napoli should seek
employment elsewhere and that if he would resign, Irving would give
him a recommendation. Napoli told Irving he would consider the
matter. On the following afternoon, February 1, Napoli decided that
since he had only a half day's work left, he might as well get his
recommendation and resign immediately. He so informed his fore-
man, Nathaniel Federbush: Nathaniel told him to come. back the
next pay day, Wednesday, February 7, for his pay. Napoli punched
his time card and left; but when he returned for his pay on February
7, Max Federbush told him it was not ready. After Napoli insisted
on getting his pay, he was told to return later, which he did in about
2 hours. Irving Federbush then told Napoli that his pay was ready
but that he would have to sign a resignation card. When Napoli
said he had never signed such a card before, Irving replied : "If you
want your pay, sign it." Napoli testified that since he wanted his
pay he then signed the card without noting the date written on by
Irving.
When Sam Federbush was questioned as to whether he had told
Napoli that things were different since the strike, he testified that he
had no right to make such a statement to Napoli since Napoli was
not in his department and further stated : "I don't remember. I
didn't have any conversation." As hereinafter described, Sam's author-
ity was sufficient to enable him to discharge Kravitz, another striker
THE FEDERBUSH CO., INC. 553
who was not employed in his department. Sam was not a convincing
witness and we give Napoli's testimony concerning this incident full
credence, as did the Trial Examiner. Neither Sam nor Irving, more-
over, denied that they told Napoli that he was going to be laid off
as soon as the job he was working on was finished. Nathaniel was not
called by the respondent as a witness , nor was any claim made that
he was unavailable. Under all the circumstances, we believe, as did
the Trial Examiner, that Napoli's version of the circumstances sur-
rounding the termination of his employment is the correct one.
It is apparent that the respondent decided to rid itself of Napoli
as soon as possible after his reinstatement, and notified him within a
week of his return that he was to be laid off in a day or two, because
there was no more celluloid-index work. This was a sharp reversal
of the respondent's four years' practice of employing Napoli in other
departments during periods when there was no celluloid work. No
explanation was offered by the respondent for this abrupt change in its
treatment of Napoli, nor is it necessary to look for one further than
Sam's statement to Napoli that only "loyal" employees were to receive
steady employment. We find, as did the Trial Examiner, that the
respondent decided to discharge Napoli because of his prominent activ-
ities on behalf of the Union before and during the strike.
The respondent takes the position that it is absolved of any respon-
sibility for Napoli's leaving because he signed a resignation card,
and because he stated at the hearing in the earlier case against this
respondent that he left its employ "voluntarily." 14 At the time
Napoli resigned, however, the respondent's discriminatory action had
already been taken, and Napoli had already been notified of his dis-
charge. Napoli's leaving was "voluntary" only in the sense that he
quit in anticipation of the discharge which he had been told would
become effective that day. The respondent had invited this action
on Napoli's part by offering him a recommendation if he would volun-
tarily resign; and by later threatening to withhold his pay, induced
him to sign a statement to that effect. Under the circumstances, the
termination of Napoli's employment was tantamount to a discharge.
2. Anthony Bartolo
Bartolo was employed by the respondent on September 18, 1939,
to help in the shipping department and to run errands. Upon apply-
ing for reinstatement after the strike, he was reinstated to his old
position on January 24, 1940.
14 Napoli, at the hearing in the earlier case, replied in the affirmative to the question
"Did you leave the employ of the Federbush Company voluntarily ?" At the hearing in
the present case, Napoli affirmed his answer, but explained later that he understood
"voluntarily " to mean only that he left of his own accord , shortly before his discharge
should become effective , and that "They didn 't put a gun on my back and say, `Sign up., 11
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shortly after Bartolo returned to work, Max Federbush asked him
if the Union was to have a meeting that night and whether he was
going to attend. On another occasion shortly after Bartolo's rein-
statement, Max asked Bartolo to get him a union book.15 Bartolo
testified that once when he was returning from the bathroom and was
taking a drink of water, Sam Federbush admonished him, "Don't
waste so much time or you will be through." Sam denied this state-
ment, saying "[I] never have said that; I had no reason to say that."
The Trial Examiner did not credit the denial nor do we. Bartolo
had never been criticized for such acts prior to the strike.
On February 15, 1940, Bartolo was discharged. In its answer the
respondent contended that Bartolo was discharged for cause because
he "was inefficient, incompetent, insubordinate and otherwise failed
to carry out the duties assigned to him." Irving Federbush, the re-
spondent's general manager, testified that Bartolo's attitude and de-
meanor prior to the strike were satisfactory but that after the strike
his attitude was "much different and unsatisfactory." Irving gave no
specifications except that Bartolo was "stalling on deliveries," but
disclaimed personal knowledge of Bartolo's conduct. Nathaniel Feder-
bush, who hired Bartolo, and Sam Krebs, the foreman who generally
gave orders to Bartolo, were not called as witnesses and did not testify.
Concerning the events immediately leading to Bartolo's discharge,
Irving Federbush testified that on the day of the discharge, Harry
Hisiger, one of the respondent's salesmen, reported observing Bartolo
playing pin ball in the barber shop for 5* minutes. Hisiger corrobo-
rated Irving's testimony to this effect and testified that for "fully five
minutes" he watched Bartolo play pin ball. The barber shop is located
at the ground level of the building housing the respondent's premises.16
Irving testified that upon receiving Hisiger's report he immediately
called. upon his brother Sam to verify the report and to discharge
Bartolo forthwith if the report was true. Sam testified that Irving
called him up and said "Go downstairs and take a look in the barber
shop; that fellow is down there." Sam then went down to the barber
shop and saw Bartolo playing the pin-ball machine. Sam's next fol-
lowing testimony was :
I stood there for a few minutes and I called him and I said,
"What are you doing here? Are you playing the machine?"
He says, "I was sent on a delivery."
I said, "If you were sent on a delivery, what are you playing the
machine for and getting paid for. Come upstairs."
I said, "Come upstairs and put your package down, punch your
card, and you are through."
15 Bartolo's testimony concerning those incidents was not contradicted by Max Federbush
when he later was called by respondent.
11 The respondent 's premises are on the fifth and sixth floors of this building.
THE FEDERBUSH CO., INC. 555
On material points, Bartolo's testimony concerning his discharge
differed substantially from the version of the respondent's witnesses..
Bartolo testified that he was sent by his foreman, Sam Krebs, on a
personal errand to J. D. Federbush's shirtmaker to pick up some
article. On his way out of the building he stopped in the barber shop
to get a drink of water at the barber's fountain and was directly
ordered upstairs by Sam Federbush who had entered the barber shop
immediately after Bartolo. After Sam and Bartolo took the elevator
to the sixth floor, Sam asked Foreman Krebs how long Bartolo had
been out and was told about 10 minutes. Sam then told Bartolo to
punch his card and that he was "through." Bartolo denied that he
played the pin-ball machine.
Sam Federbush did not deny Bartolo's statement that Krebs told
Sam that Bartolo had been away from the shipping department for
about 10 minutes. Krebs was not called to testify. We find that
Bartolo was sent on an errand and that he was not away from the
shipping department more than about 10 minutes in all. In several
respects, the version of this incident recounted by the respondent's
witnesses is not convincing. If Bartolo was only away from his
department for about 10 minutes, it is unreasonable to believe that
the following events implicit in the respondent's version of the
incident could have occurred within that period: (1) Bartolo pro-
ceeded from his department on the sixth floor to the elevator, down
to the ground floor and into the barber shop; (2) in the barber shop
he played pin ball for "fully five minutes" observed by Hisiger; (3)
Hisiger then took the elevator to the fifth or sixth floor and reported
the matter to Irving Federbush; (4) Irving then gave Sam instruc-
tions concerning the matter; (5) Sam then proceeded down the eleva-
tor to the barber shop and observed Bartolo playing pin ball for "a
few minutes"; (6) Sam and Bartolo proceeded to the sixth floor by
elevator and Sam talked to Krebs.
It is not necessary, however, to resolve the conflict of testimony
as to whether Bartolo did more than to stop for a drink in the barber
shop. It is undisputed that Bartolo had been sent on a personal
errand for J. D. Federbush, and was absent from the respondent's
premises for a legitimate reason ; and that Krebs 'reported to Sam
that he had been gone only 10 minutes from start to finish. It is clear
that if he dallied, it must have been for a negligible length of time;
and this fact was brought to the respondent's attention.
Bartolo's discharge cannot be considered apart from Max Feder-
bush's questioning of Bartolo concerning the union meeting, and Max's
other sarcastic references to Bartolo's union activities, after the latter
returned to work after the strike. That the respondent was anxious
to rid itself of active union members, of whom it knew Bartolo to be
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
one, has already been shown by the manner of its discharge of Napoli
-a week or two before. In view of the above facts and the entire
record, we are of the opinion and find, as did the Trial Examiner,
that the barber-shop incident was merely a pretext utilized by the re-
spondent to support its discharge of Bartolo, and that the real reason
for the discharge was Bartolo's activity on behalf of the Union during
and after the strike.
3. Joseph Russo
Russo was first employed by the respondent on September 18, 1939,
as a power-press operator. At times he worked on the drill and
cutting machines. Russo had 10 years' experience as a power-press
operator before coming to work for the respondent. His activities
during the strike have been described above.
When Russo applied for reinstatment, after the strike, on January
18, 1940, Irving Federbush asked him if he knew who beat up
Bennie Krebs during the strike and Russo replied that he did not
know and that he had not done it. The respondent called Russo
back to his old job on January 22, 1940, and the next day Irving
Federbush told him-: "Keep up the good work; you are doing fine."
On February 5, 1940, Russo was given a raise of $1.00 per week
during a period when numerous other employees were given raises.
On March 12, 1940, Russo was discharged. Russo testified that
on March 12, when he reported for work, he could not find his card;
and that when he asked Sam Federbush, who was standing nearby,
about the matter, Sam handed him his pay check. When Russo
asked why he was being laid off, Sam told him that "it was slow"
and that he had "orders" to give Russo his check. When Sam was
asked on cross-examination if he knew Russo, he said "I suppose I
know him, but I don't remember exactly" and when questioned
further as to whether he remember that Russo was fired, he replied :
"I don't know. I can't say directly if I remember, I don't remember
exactly." The respondent did not give any evidence to show that
anyone else other than Sam informed Russo of his discharge and we,
as did the Trial Examiner, credit Russo's testimony as to the
circumstances of his discharge.
When Russo asked Nathaniel Federbush why he was being laid
off when there was plenty of work upstairs, Nathaniel referred him
to Irving Federbush. Russo stated that immediately after this he
met Irving as the latter was coming into the office, that he asked
Irving about the matter and that Irving told him to telephone him
in about 7 minuteg: Russo claimed that he did telephone Irving
several times that day and the next, but was told on each occasion
that Irving was not in. Irving testified that Russo never called him
THE FEDERBUSH CO., INC. 557
and further stated : "I don't think I have had conversations with him.
I had a conversation with the shop foreman in connection with his
dismissal."
In its answer respondent averred that "Russo was repeatedly
warned concerning his duties and obligations with respect to his
employment but that without regard to such duties and obligations
he was guilty of incompetency and inefficiency and his employment
was terminated by the respondent for cause and justification."
Irving Federbush testified that Russo was discharged for several
times breaking a lug die that ultimately had to be replaced at a
cost of $350. Irving also testified that he found Russo's work
satisfactory until Russo received the $1.00 per week raise on February
.ri but that thereafter "his general tone of behavior changed com-
pletely. It seems that something got over him." There was no
specification as to how Russo's "tone of behavior" changed. George
Pelletier, Russo's foreman, testified that Russo "was pretty ambi-
tious. He seemed to be willing to work"; and again, that "the man
was working honestly and . . . minding his own business." When
asked if Russo continued to work "in the same efficient way" after
receiving the raise on February 5, Pelletier answered "That's right."
When it is considered that Russo worked directly under Pelletier.
Pelletier's testimony tends to discredit Irving Federbush's charge of
an unsatisfactory change in Russo's behavior. In view of Pelletier's
testimony and the fact that Russo had had 10 years of experience as
a power-press operater before coming to work for the respondent, the
issue of the alleged incompetency of Russo comes down to a
consideration of the breaking of the lug die.
Irving testified on direct examination that the die was first sent
out for repairs on February 9 and returned on February 16; then
it was sent out for repairs again and returned on February 24.
Then it was sent out for repairs again "and came back to us on
April 6th, at which time we found the die not working properly,
as the damage done was so severe that it would be cheaper to make
a new die than to properly repair it." 17 On cross-examination
Irving altered his testimony and stated that the first time the die went
back for repairs he knew that the die could not be properly repaired
17 Irving was testifying from certain orders and invoices introduced into evidence as
the respondent's exhibits . That he paid little heed to the accuracy of his testimony is
evident from the exhibits themselves , which show only one repair to the die during Feb-
ruary, and not two, as asserted by Irving . The respondent 's exhibits show that, by
Order No. A23127 , a lug die was sent for repair on February 9, 1940, and returned on
February 16, 1940. On February 24, 1940, the respondent was billed $ 5 for work on this
order.
On March 5 , 1940, the respondent ordered a new lug die , for which it was billed $350
on April 11 , 1940. On April 6, 1940, the respondent was further billed $15 for repairs to
a lug die It does not appear when the latter work was ordered.
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that it was necessary to purchase a new die "because you could
not repair a die of this type for fifteen or five dollars, I mean, it is
perfectly ridiculous."
Russo testified that he broke part of the lug die shortly after
he received the February 5 raise, but that Pelletier told him he
would fix it up if he could. Russo stated that after this one occa-
sion he did not break the die again, nor was he ever accused by the
respondent of doing so until the hearing. Pelletier testified that
Russo broke the die twice, once in the latter part of January or
early in February, and again about a week later; that the first time
this happened Pelletier was able to repair it himself, and hence did
not bring it to the attention of his employers; but that the second
time the die was broken Pelletier could not fix it, and told Irving
that a new die was needed."' According to Pelletier, Irving on this
occasion told him, "If that happens again he is no use to me, and we
will have to let him go. He may get injured." Pelletier did not
mention any subsequent breakage of the die upon either direct or
cross-examination, nor was he questioned as to his knowledge, if any,
of the circumstances surrounding Russo's discharge, which must
have taken place nearly a month after the breakage last mentioned
by Pelletier.
Irving testified that Pelletier came to him shortly after February
5, and told him that Russo had broken the lug die "and that he had
been breaking several dies previously and he [Pelletier] had given
him warning." Irving testified that he told Pelletier to warn Russo
again; and that "we told him the next time it happened we would
have to fire him." Irving then replied in the affirmative to the
respondent's counsel's question : "And regardless of the warning he
did subsequently break the die?" but did not specify when nor how
Russo broke the die again, nor by whom and under what
circumstances he was discharged.
The respondent's witnesses -admitted that the die was capable of
being used on other of its presses than the one operated by Russo.
In view of this fact, the testimony of Irving and Pelletier does not
establish that Russo broke the die more than twice, the last time on
or before February 9. On this occasion, the evidence shows, the die
was sent to be repaired, and Russo was warned, but not discharged.
Both Irving and Pelletier stated that they knew at this time that a
new die would have to be purchased. We do not credit Irving's vague
and unsupported affirmation that Russo did "subsequently" break a
19 It would appear that the February 9 order for repair , and the February 24 bill for
$5 (see footnote 17 above ) relate to this breakage of the die. The new the was not
ordered until March 5, 1940.
THE FEDERBUSH Co., INC. 559
die; and there is no credible evidence of such an occurrence 19 Under
these circumstances, it seems clear that the true cause of Russo's dis-
charge could not have been the breaking of the die.
The respondent made no attempt to controvert Russo's testimony
that he was not told, on March 12 or at any other time, that his dis-
charge took place because he had allegedly broken the die; nor is it
possible to discover from the testimony of the respondent's witnesses
who, if not Sam, did discharge Russo, or what was told him as to the
reason for it, other than that "work was slow." On the whole record,
we find that the respondent did not raise the question of damage to the
die, as the reason for Russo's discharge, at any time until it was faced
with the necessity for presenting some defense to the charges of dis-
crimination. This fact alone is sufficient to stamp with bad faith the
respondent's allegation that Russo was in fact discharged for that
reason.
When Irving's charge to the police during the strike that Russo
was "the guy that causes all the trouble," and his questioning of Russo
regarding the beating up of Krebs, when Russo returned to work, are
set beside the confused and inconclusive testimony of the respondent's
witnesses concerning the die, the evidence is persuasive that Russo was
in fact discharged because of his prominent activities on behalf of the
Union during the strike, and we, as did the Trial Examiner, so find.
4. Louis Cantor
Louis Cantor was employed by the respondent on October 17, 1939,
as a power-press operator in the metal department. During the
strike, as set forth above, he took a prominent part in the strike activi-
ties. He applied for reinstatement with the other employees, and
resumed work on January 26, 1940. His work was satisfactory. Both
Irving Federbush, and Cantor's foreman, Pelletier, testified that no
fault was found with it.
The complaint alleges that Cantor was discriminatorily discharged
on February 23, 1940. In its answer, the respondent alleges that
"Kravitz 20 and Cantor were temporarily laid off for a period of two
weeks and that the respondent asked them to report after a period of
two weeks from the date of such temporary lay-off" but that they
failed to do so. Cantor, however, testified that on February 23 Sam
39 Irving asserted , at the time the respondent's exhibits described in footnote 17, above,
were introduced into evidence , that the April 6 repair bill for $15 00 represented repairs
made the second time " that Russo broke the die. In view of Irving's general disregard
for accuracy In his testimony about these exhibits , the complete absence of any evidence
that the die was broken on Russo's rather than one of the other presses , and the long
lapse of time between Russo ' s discharge , and the bill for repair, we do not credit this
assertion
20 Kravitz 's case is discussed below.
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Federbush gave him his pay envelope, and "told me not to come back
to work any more, that I am finished." Cantor gathered his belongings
and left the plant, and did not thereafter return to ask for work.
Sam Federbush's testimony as to this matter was confused. He
asserted first that he told Cantor he was laid off, and stated, "My
brother Irving called me up and says Louis Cantor is laid off." Imme-
diately thereafter Sam testified that he did not lay Cantor off, and
then added, "I don't remember exactly what happened, but I didn't lay
him off. I know my brother Irving told me that Louis Cantor was
laid off." 'Elsewhere he testified that sometimes Irving informed em-
ployees of their lay-off himself and at other times delegated Sam to tell
them. Sam also testified that he did not know for how long Cantor
was laid off. He did not deny giving Cantor his pay.
Pelletier, Cantor's foreman, testified that during February work
was slack in his department, and Cantor was laid off on that account
for a week. On direct examination he testified that he did not do
the actual laying off himself; he merely took the matter to Irving
Federbush, the latter suggested that someone be laid off, and Pelletier
suggested Cantor. Later he stated that he himself said to Cantor, "It
is a little slow, take a week off and come back and start working again."
He said that he did not know whether Cantor was paid that day or
not. , Irving's testimony was general, merely to the effect that Cantor
"was told [by whom, Irving did not state] to report in about two weeks,
that we may be able to resume operations again." On the basis of
the entire record, and his observation of the witnesses, the Trial Ex-
aminer found that Sam Federbush told Cantor, on February 23, that he
was "finished," and we adopt this finding. Whether or not Pelletier
indicated to Cantor that he should return later, it appears that Sam was
the person who gave Cantor his pay and, we find, announced to him
the final decision as to his status. Under these circumstances, Cantor
was justified in believing that it was useless for him to apply again
to the respondent for work.
When Pelletier was asked why it was suggested that Cantor, rather
than some other employee, be laid off, he stated, "It was a rule with
me that the last one is always the first to be laid off. I usually give
the older employees a break." He subsequently admitted, however,
that three other employees in the metal department at that time had
been hired during the 2 weeks preceding Cantor's alleged lay-off : Levy,
Tercasio, and Kemish. Levy and Tercasio were still in the employ of
the respondent _at the time of the hearing. Levy does assembly work,
and "occasionally" operates a drill press; Tercasio does assembly work.
It does not appear what Kemish's job was. Cantor testified that he
could do assembly work and had worked at it once for Pelletier with-
out receiving any complaint from the latter. He also stated that he
THE, FEDERBUSH co., INC. 561
could operate a drill press, as well as the press he regularly worked on,
although Pelletier testified that he thought some experience would
be necessary. No contention ,was made, however, that Cantor could
not have performed any other work for the respondent.
The only justification offered by the respondent, then, for its singling
out of Cantor for discharge-namely, that Cantor was the "last" or
junior employee in his department-does not stand up under examina-
tion; and we are compelled to look elsewhere if we are to discover why,
when three employees in Cantor's department 21 had been working for
2 weeks at the most, 22 Cantor was selected for discharge. The reason
is not hard to find, however, when Cantor's activity during the strike,
the respondent's hostility to the Union, and the discharges of Napoli
and Bartolo, which immediately preceded that of Cantor, are recalled.
Upon the entire record, we find, as did the Trial Examiner, that
Cantor was discharged because of his membership in and activities
on behalf of the Union.
5. Hyman Kravitz
Hyman Kravitz was employed on October 27, 1938, in the assem-
bly department, under the charge of Sam Federbush. Throughout
the period of his employment with the respondent he worked steadily,
being given work in the metal or laundry departments when work
in the assembly department was slow. Irving testified that he was a
"willing worker" and a "good employee." Kravitz received two
raises during this period, one in January 1939 and another in July
1939.
In October 1939, Kravitz joined the Union, and went out with the
others when the strike was called. As set forth above, he was a
member of the strike committee, was elected picked captain, and
served in these capacities for the duration of the strike. Sam Feder-
bush's attempt to have Kravitz arrested, and Max's threats to him
during the strike have already been described. When Kravitz re-
turned to work on January 23, he was informed by Max that the
latter was now boss of the assembly department, in Sam's old posi-
tion; that "We will win out . . . watch out, I am keeping an eye on
you." Subsequently, one afternoon after working hours, Max took
occasion, as has been shown above, to, tell Kravitz that he did
not like his talking to Grasso, the union representative. Kravitz's
reply, that he would do his best during working hours, but that what
he did outside was none of the respondent's business, was a clear
indication to the respondent that Kravitz intended to continue his
21 Only 11 men were employed in the metal department at this time.
22 Kemish had been hired only the week before Cantor 's discharge.
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activities on behalf of the Union as before . Kravitz wore his union
button in the plant from the day he was reinstated.
Kravitz last worked for the respondent on May 10, 1940. The
respondent alleged in its answer that Kravitz was laid off and told
to return in 2 weeks , but that he failed to return . Kravitz testified
that on Friday , May 10, as he was leaving the plant Sam handed
him his pay envelope . Since the respondent 's pay day is regularly
on Wednesday , Kravitz inquired why he was being paid . Sam told
him he was being laid off , giving as the reason that "it is slow, that's
why." Kravitz testified that Sam did not tell him how long he was
to be laid off.
Sam testified that work was slow at that time , so he took the mat-
ter up with Irving Federbush , telling the latter than someone would
have to be laid off; and that Irving "looked around the assembly
and the bindery and the different departments and he told me to
lay off Hyman Kravitz." Sam state-d that he accordingly 'told
Kravitz "we would lay him off for two weeks."
Sam's testimony was not convincing at any point . His answers
were evasive in the extreme , and at times he suffered complete lapse
Hof memory on important matters. We do not credit his testimony
in regard to the matter of Kravitz's lay-off , but adopt the Trial
Examiner's finding, made on the basis of the entire record and his
observation of the witnesses , that Kravitz was not told to return
in 2 weeks or any other period of time.
The respondent 's defense must fail , in any event, for the record
shows, and we find, that Kravitz returned to the respondent 's plant
on May 31 and asked if he could have his job back, but was told
that there was no work for him. Irving denied that Kravitz asked
for work on this occasion , stating that Kravitz said he could get a
better job, and merely requested that the respondent give him a
letter of recommendation . Kravitz testified that he did ask for a
recommendation ; but only after he had been told that the respondent
had no work for him. The record shows that he did not secure other
employment until the middle of July, and we credit his testimony
that he asked to be reemployed by the respondent . Under all the
circumstances , we find that Kravitz was discharged by the respondent
on May 10, 1940 , and was thereafter refused reemployment.
No evidence was offered by the respondent in defense to the
charge that it discriminated against Kravitz by discharging and
refusing to reinstate him. The explanation that "it was slow" is no
defense , for, as has been seen , the respondent, during Kravitz's year
and a half of employment , had kept him steadily employed through
slow periods by transferring him to other work. Yet on this occa-
sion , not only did the respondent make no attempt to give Kravitz
THE FEDEIRBUScH CO., INC. 563
other work, but it retained in its employ in the metal department,
where he frequently worked, at least two employees who had been
employed since the strike.23 Kravitz had received two raises, and
admittedly' had been "a' willing worker" and a "good employee" for
over a year and a half. His discharge under these circumstances,
taken in conjunction with the hostility repeatedly displayed towards
Kravitz by the' respondent after he became active on the behalf of
the Union, raises so strong an inference that he was discharged
because of his union activities as to require an affirmative showing
by the respondent that for reasons of business necessity it was impos-
sible for the respondent to continue Kravitz's employment after
May 10, 1940. No such showing was made by the respondent, and
what facts there are point strongly to the opposite conclusion. We
find, as did the Trial Examiner , that Kravitz was discharged because
of his membership in and his prominent activities on behalf of the
Union.
The record shows that the respondent has persistently opposed
the Union and interfered with the rights of its employees to self-
organization. The statements by the respondent's supervisory em-
ployees that Kravitz- had. better watch his step, that the strikers
would not receive as steady employment as other employees, that the
plant did not need a union shop chairman, that the respondent
disliked to see employees associate with the Union's manager, and
that the Union would have no members by the time the Board and
the courts compelled the respondent to comply with the Act, reveal
a consistent pattern of resistance to and violation of the Act, in the
light of which the discharges of active union members and 'leaders,
as above set forth, must be considered. Upon the whole record,
we find, as did the Trial Examiner, that by discharging Anthony
Napoli on February 1, 1940; Anthony Bartolo on February 15, 1940;
Joseph Russo on March 12, 1940; Louis Cantor on February - 23,
1940; and Hyman Kravitz on May 10, 1940; and by failing to
reinstate them after the respective dates of their discharges, the
respondent discriminated with respect to their hire and tenure of
employment, discouraged membership in the Union, and thereby
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III, above, occurring in connection with its operations described in
Section I, above, have a close, intimate and substantial relation to
23 Levy and Tercasio were employed on February 5, 1940. Both did assembly work.
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trade, traffic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in unfair labor
practices, we shall order it to cease and desist therefrom. We shall
also order the respondent to take certain affirmative action which
we find is necessary to effectuate the policies of the Act.
We have found that the respondent has discriminated in regard
to the hire and tenure of employment of Anthony Bartolo, Louis
Cantor, Hyman Kravitz, Anthony Napoli, and Joseph Russo.
Napoli, having obtained another position sometime after his dis-
charge which he prefers to employment with the respondent, does not
desire reinstatement. We shall not, therefore, order the respondent
to offer it to him. Cantor, Kravitz, and Russo desire reinstatement.
We find that their reinstatement will effectuate the policies of the Act.
We shall order the respondent to offer Louis Cantor, Joseph Russo,
and Hyman Kravitz immediate and full reinstatement to the positions
held by them at the time of their respective discharges, or to substan-
tially equivalent ones, without prejudice to their seniority and other
rights and privileges.
The respondent contends that Bartolo, Cantor, Kravitz, Napoli,
and Russo are "guilty of lathes" by reason of their failure to file
charges at once upon their respective discharges, and that the respond-
ent should not be ordered to make any of these men whole for any loss
in earnings except such as may have been suffered since the Union first
filed charges. For the reasons set forth above, we find this contention
to be without merit. We shall further order the respondent to make
whole Anthony Napoli, Louis Cantor, Joseph Russo, and Hyman
Kravitz for any loss of earnings they may have suffered by reason
Of the respondent's discrimination against them, by the payment to
Napoli of a sum of money equal to the amount he would normally
have earned as wages from the date of his discharge to the date upon
which he obtained the employment in which he was engaged at the
date of the hearing, less his net earnings 24 during that period; and by
payment to each of the others of a sum of money equal to the amount
he would normally have earned as wages from the date of his discharge
ii By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America,
Lumber and Sawmill Workers Union , Local 2590, 8 N. L. R . B. 440. Monies received for
work performed upon Federal, State , county, municipal , or other work -relief projects
shall be considered as earnings. See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7.
- THE FEDERBUSH CEO., INC. 565
to the date of offer of reinstatement, 28 less his net earnings 26 during
that period.
Bartolo, on September 17, 1940, enlisted in the 71st Regiment of the
United States National Guard of New York, and was inducted into
service on the same day. We shall order the respondent, upon appli-
cation by Bartolo within thirty (30) days after his discharge from
the armed forces of the United States, to offer him reinstatement to
his former or a substantially equivalent position, without prejudice
to his seniority or other rights and privileges. We shall further order
the respondent to make Bartolo whole for any loss of earnings he
may have suffered by reason of the respondent's discrimination against
him, by payment to him of a sum of-money equal to the amount he
would normally have earned as wages during-the periods (1) between
the date of his discharge by the respondent, and the date of his enlist-
ment, September 17, 1940; and (2) between a date five (5) days after
Bartolo's timely 27 application for reinstatement, and the date of offer
of reinstatement by the respondent; less his net earnings 28 during
those periods.
Upon the foregoing findings of fact and upon the entire record in
the case, the Board makes the following :
CONCLUSIONS OF LAw
1. United Paper Workers , Local 292 , affiliated with the United
Paper , Envelope and Toy Workers International Union, C. I. 0., is
a labor organization within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment
of Anthony Bartolo , Louis Cantor, Hyman Kravitz, Anthony Napoli,
and Joseph Russo, thereby discouraging membership in United Paper
Workers, Local 292, affiliated with the United Paper , Envelope and
Toy Workers International Union,. C. I. 0., the respondent has en-
gaged in and is engaging in unfair labor practices within the meaning
of Section 8 (3) of the Act.
3. By interfering with, restraining , and coercing its employees in
their exercise of the rights guaranteed . in Section 7 of the Act, the
a The respondent contends that a back-pay order as to Cantor and Kravitz should not
include back pay for any period subsequent to an offer made at the hearing by Irving
Federbush to reemploy these men . This contention we find to be without merit. Irving
stated definitely , at one point during the hearing that he had openings for both Cantor
and Kravitz at that time, and "would be willing to reemploy them." Later , however, he
stated that "Cantor can make application for a position anytime within . thirty days,
or sixty days, for that matter, if we have work available be can have it." [ Italics ours.]
In view of Irving's modification of his offer to Cantor before he left the witness stand, his
earlier offer to both is without significance. -
26 See footnote 24 above.
27 As provided in the preceding sentence.
0 See footnote 24 above.
451269-42-vol. 34-37
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act. -
ORDER
Upon the basis of the above findings of facts, conclusions of law,
and the entire record in the case, and pursuant to Section 10 (c) of,
the National Labor Relations Act, the National Labor Relations Board
hereby orders that the respondent, The Federbush Co., Inc., New York
City, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in the United Paper Workers, Local
292, affiliated with the United Paper, Envelope and Toy Workers In-
ternational Union, C. I. 0., or any other labor organization of its
employees, by discriminating in regard to the hire and tenure of
employment or any term or condition of employment of its employees;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted activities
for the purposes of collective bargaining or other mutual aid or pro-
tection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Offer to Louis Cantor, Hyman Kravitz, and Joseph Russo
immediate and full reinstatement to their former or substantially
equivalent positions without prejudice to their seniority or other
rights and privileges;
(b) Make whole Anthony Napoli, Louis Cantor, Joseph Russo,
and Hyman Kravitz for any loss of earnings they may have suf-
fered by reason of the respondent's discrimination against them, by
the payment to Napoli of a sum of money equal to the amount he
would normally have earned'as wages from the date of his discharge
to the date upon which he obtained the employment in which he was
engaged at the time of the hearing, less his net earnings 29 during
that period; and by the payment to each of the others of a sum of
money equal to that which he would normally have earned as wages
from the date of his discharge to the date of offer of reemployment,
less his net earnings 30 during that period;
29 See footnote 24, above,
80 See footnote 24, above.
THE FED 'ERBUSH CO., INC. 567
(c) Upon application by Anthony Bartolo within thirty (30)
days after his discharge from the armed forces of the United States,
offer him immediate and full reinstatement to his former or a sub-
tantially equivalent position, without prejudice to his seniority or
other rights and privileges;
(d) Make whole Anthony Bartolo for any loss of earnings suffered
by reason of the respondent's discrimination against him, by the pay-
ment to him of a sum of money equal to the amount he would nor-
mally have earned as wages during the periods (1) between the date
of his discharge by the respondent and the date of his enlistment,
September 17,1940; and (2) between a date five (5), days after Bartolo's
timely 31 application for reinstatement, if any, and the date of offer
of reinstatement by the respondent; less his net earnings 32 during
those periods;
(e) Immediately post in conspicuous places throughout its plant,
and maintain for a period- of at least sixty (60) consecutive days,
notices stating : (1) that the respondent will not engage in the con-
duct from which it- is ordered to cease and desist, in paragraphs
(1) (a) and (b) of this Order ; (2) that the respondent will take the
affirmative action set forth in paragraphs 2 (a), (b), (c), and (d)
of this Order; and (3) that the respondent's employees are free to
remain or become members of United Paper Workers, Local 292,
affiliated with the United Paper, Envelope and Toy Workers Inter-
national Union, C. I. 0., and that the respondent will not discrimi-
nate against any employee because of his membership in or his
activities on behalf of that organization;
(f) Notify the Regional Director for the Second Region in
writing within ten (10) days from the date of this Order, what steps
the respondent has taken to comply herewith.
MR. EDWIN S. SMITH, concurring in part and dissenting in part :
I concur in the finding of the majority that the respondent has
discriminated against Napoli, Bartolo, Russo, Cantor, and Kravitz,
and that the remedial action ordered in regard to them will effec-
tuate the policies of the Act. I am of the opinion, however, that the
respondent, by the acts described by the majority under the Section
entitled "Background" has interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7
of the Act. The majority of the Board fails to'conclude that the
Acts therein described constitute violations of the Act. The Trial
Examiner found that the attempt of Sam Federbush to interfere,
83 As provided in paragraph 2 (c) of this Order.
82 See footnote 24, above.
568 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD
through the police, with Kravitz's peaceful strike activity, and the
statement of Max Federbush to Grasso that the respondent had
planted labor spies, as well as Max's sarcastic remark to Bartolo
while the latter was engaged in picketing during the strike, were cal-
culated to discourage the employees from strike activity and from
other activities on behalf of the Union; that the respondent's Novem-
ber 9, 1939, notice of its striking employees was not a bona fide effort
to prevent violence, but that it constituted a direct communication
with the individual employees at a time when the employees had
chosen the Union as their exclusive bargaining representative; and
that the notice thus interfered with the employees in their right to
bargain through representatives of their own choosing. The Trial
Examiner also found that the respondent posted the notice of Janu-
ary 18, 1940, forbidding discussion "of Union affairs, strike history,
or labor laws," and ordered Napoli not to talk with his fellow em-
ployees because the respondent desired to prevent further organiza-
tional activity; and that by those acts and by Max Federbush's state-
ment to Kravitz, that Max did not like the idea of Kravitz's talking
to Grasso, the respondent interfered with, restrained, and coerced
its employees in their exercise of the rights guaranteed by the Act.
That the respondent engaged in the foregoing acts, as found by
the Trial Examiner, is amply borne out by the record, as indeed the
majority finds. In my opinion the respondent, by these activities,
has engaged in unfair labor practices within the meaning of Section
8 (1) of the Act, and I would so find.