Resnick Cleaners

National Labor Relations Board - Board Decisions

Jun 13, 1940

24 N.L.R.B. 690 (N.L.R.B. 1940)

In the Matter Of RESNICK CLEANERS & DYERS, INC., DAVID AND ANNA
RESNICK , TRADING AND DOING BUSINESS AS RESNICK CLEANERS;
DAVID AND ANNA RESNICK, INDIVIDUALLY and INTERNATIONAL
ASSOCIATION OF CLEANING & DYE HOUSE WORKERS (A. F. OF L.),
LOCAL #9
Case No. C-1048.-Decided June 13, 1940
Cleaning and Dyeing Industry-Procedure: further hearing ordered, upon
request of all parties , to incorporate testimony of named witnesses for the
respondent who had not been called at the first hearing due to an oral stipula-
tion-Interference, Restraint, and Coercion: urging employees to form local,
autonomous union and not to affiliate with outside union ; statements to indi-
vidual employees and employees assembled at plant meetings , called for that pur-
pose, threatening to discharge employees or close the plant if employees joined
the outside union ; identification of the union with "racketeers"; promise to
"protect" employees against "racketeering" unions ; investigation of extent of
union membership and activity ; publication of advertisements calling union
officials "outside agitators or instigators of competitive fields" and implying that
union was dominated by "professional agitators" ; intimidation and trailing of
union organizers-Employer: contention of, that it has no supervisory em-
ployees, rejected-Discrimination: allegations of complaint sustained as to nine
employees , dismissed as to two employees ; ( Smith dissents ) to dismissal of
complaint as to one employee-Reinstatement Ordered: for nine employees-Back
Pay: awarded-Strike: caused by unfair labor practices ; strikers entitled to
reinstatement or placement upon preferential hiring list upon application.
Mr. John H. Dorsey, for the Board.
Mr. David H. Weiner, Bloom c€ Bloom, by Mr. George I. Bloom
and Mr. I. C. Bloom, and Mr. W. S. Yard, all of Washington, Pa.,
and Mr. M. Leon Tolochko, of Pittsburgh, Pa., for the respondents.
Mr. Leo I. Shapiro, of Pittsburgh, Pa., for the Union.
Mr. Louis A. Roland, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by International
Association of Cleaning and Dye House Workers, Local No. 9, herein
called the Union, the National Labor Relations Board, herein called
24 N. L. R. B., No. 67.
690
RESNICK CLEANERS & DYERS, INC. 691
the Board, by Charles T. Douds, Regional Director for the Sixth
Region (Pittsburgh, Pennsylvania), issued its complaint dated July
26, 1938, against Resnick Cleaners & Dyers, Inc., David and Anna
Resnick, trading and doing business as Resnick Cleaners, and David
and Anna Resnick, individually, all of Washington, Pennsylvania,
herein collectively or individually 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. Copies of the complaint,
accompanied by notice of hearing thereon, were duly served upon
the respondent and the Union.
Concerning the unfair labor practices, the complaint alleged, in
substance, that, on dates from about February 18, 1938, to about
March 17, 1938, the respondent terminated the employment of 11
named employees, and, since those dates, has refused to reemploy the
aforesaid employees because of their membership in and activity on
behalf of the Union, thereby discouraging membership in the Union;
that as a result of the aforesaid acts of the respondent, the Union
called a strike on about March 21, 1938, at the respondent's Wash-
ington, Pennsylvania, plant, which had not terminated at the date
of the complaint; that on about August 1, 1937, and thereafter, the
respondent, by threats, newspaper advertisements, speeches, con-
versations, and in various other ways discouraged membership in
the Union; and that the respondent, by all the afore-mentioned acts
and by other acts, interfered with, restrained, and coerced its em-
ployees in the exercise of their rights guaranteed in. Section 7 of the
Act. On August 2, 1938, the respondent filed an answer admitting
certain allegations of the complaint as to the nature of its business,
but denying the alleged unfair labor practices and the Board's
jurisdiction.
Pursuant to notice, a hearing was held at Pittsburgh, Pennsylvania,
on August 4, 5, 6, 8, and 9, 1938, before Herbert Wenzel, the Trial
Examiner duly designated by the Board. The Board, the respond-
ent, and the Union 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 rulings on motions and on objections to the admission
of evidence. The Board has reviewed the rulings of the Trial
Examiner and finds that no prejudicial errors were committed. The
rulings are hereby affirmed.
Thereafter, the respondent filed a brief which was considered by
the Trial Examiner in the preparation of his Intermediate Report.
,692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On November 10, 1938, the Trial Examiner filed his Intermediate
Report, copies of which were duly served upon the respondent and
the Union, finding that the respondent had engaged in and was en-
gaging in unfair labor practices affecting commerce within the mean-
ing of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act.
He recommended that the respondent cease and desist from the unfair
labor practices so found; offer reinstatement, with back pay, to seven
employees found to have been discriminatorily discharged; upon ap-
plication, offer reinstatement to employees who had gone on strike
because of the respondent's unfair labor practices; take certain other
affirmative action; and that the complaint, in so far as it alleged that
the respondent discriminatorily discharged and refused to reemploy
four other employees, be dismissed. Thereafter, the respondent and
the Union filed exceptions to the Intermediate Report, and, after hav-
ing waived oral argument before the Board in Washington, D. C., both
the respondent and the Union, pursuant to permission granted by the
Board, filed briefs in support of their respective exceptions.
By written stipulation of the respondent, the Union, and counsel for
the Board, signed respectively on October 30, 31, and November 6, 1939,
it was agreed that the record in this proceeding be reopened to incor-
porate the testimony of 30 named witnesses for the respondent who, as
a result of an oral stipulation at the hearing, had not been called to
testify. Having duly considered the matter, the Board, on November
9, 1939, ordered that the record be reopened and that a further hearing
be held for the introduction of the testimony of the afore-mentioned
30 persons. Pursuant to notice, a further hearing was held at Pitts-
burgh and at Washington, Pennsylvania, on December 7 and 8, 1939,
before Herbert Wenzel, the Trial Examiner duly designated by the
Board. The Board, the respondent, and the Union were represented
by counsel and participated in the hearing. Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce'evi-
dence bearing upon the issues as delimited in the Board's order of
November 9, 1939, was afforded all parties.' During the course of the
hearing, the Trial Examiner made several rulings on motions and on
objections to the admission of evidence. The Board has reviewed the
rulings of the Trial Examiner and finds that no prejudicial errors were
committed. The rulings are hereby affirmed.
Pursuant to an order of the Board, dated December 14, 1939, the
Trial Examiner prepared and filed a Supplemental Intermediate Re-
port, dated March 12, 1940, copies of which were duly served upon the
respondent and the Union, in which he made supplemental findings of
fact but no change in the conclusions and recommendations of his In-
termediate Report. Exceptions to the Supplemental Intermediate
'The respondent called as direct witnesses 21 of the 30 persons named in the Board's
order , and expressly waived the right or privilege of calling" the 9 other named persons.
RESNICK CLEANERS & DYERS, INC. 693
Report were thereafter filed by the respondent, and both the respond-
ent and the Union filed supplemental briefs with the Board. On May
7, 1940, a hearing was held before the Board in Washington, D. C., for
the purpose of oral argument on exceptions to the Intermediate and
Supplemental Intermediate Reports. The respondent and the Union
were represented by counsel and participated in the oral argument.
The Board has considered all the exceptions to the Intermediate
and Supplemental Intermediate Reports and, in so far as they are
inconsistent with the findings, conclusions; and order set forth below,
finds them to be without merit..
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
David and Anna Resnick, trading and doing business as Resnick
Cleaners, is a partnership formed on or about January 1, 1938, as the
successors to Resnick Cleaners & Dyers, Inc., a Pennsylvania cor-
poration which at the time of the first hearing was in process of dis-
solution.2 The principal office and plant of the respondent is in the
city of Washington, Pennsylvania, where it is engaged in the business
,of laundering, cleaning, pressing, repairing, and dyeing of all articles
of wearing apparel, household furnishings, and fabrics. The respond-
ent, in addition, controls and operates 59 retail cleaning stores, known
as Peter Pan Cleaners, 11 of which are located in Ohio and West
Virginia.' The employees involved in this case are those at the
Washington, Pennsylvania, plant.
During the calendar year 1937, the volume of business (lone by the
respondent totaled in value $159,078.23, approximately 22.8 per cent of
which represented business coming from outside the State of Pennsyl-
vania. For the period from January 1, 1938, to May 28,1938, inclusive,
the total volume of business of the respondent amounted to $149,119.51,
approximately 18.6 per cent of which represented business coming
from outside the State of Pennsylvania. The respondent owns and
operates a fleet of six motor trucks which are used to transport articles
from retail cleaning stores in and outside the State of Pennsylvania
to the respondent's plant for cleaning, dyeing, or other operations.
These trucks also reconvey the articles to the respective retail stores.
3 Resnick Cleaners & Dyers, Inc., and David and Anna Resnick ; individually, and
trading and doing business as Resnick Cleaners, will hereinafter be referred to, collec-
tively or individually, as the respondent.
3 All the Peter Pan stores were, prior to January 1938, owned by Resnick Cleaners &
Dyers, Inc . Thereafter , their ownership was transferred to Arthur Resnick, son of David
Resnick, but management and control were, pursuant to an oral agreement , left in the
hands of the respondent for a trial period. Since.January 1938 , however, the monies of
both the Peter Pan stores and the respondent have been kept in a single account.
283035-42-vol. 24-45
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The total value of materials. 'purchased by the respondent during
1937 amounted to $38,155.91. Of this amount, 14.3 per cent repre-
sented purchases shipped to the plant from outside the,State of Penn-
sylvania. The total value of materials purchased -from January 1,
1938 to May 28, 1938, inclusive, amounted to $7,167.51, of which 15.9
per cent represented purchases shipped to the plant from outside the
State of Pennsylvania.
The respondent employs approximately 75 employees at its Wash-
ington, Pennsylvania, plant.
In its answer and exceptions, the respondent denies that it is
engaged in interstate commerce, but during the first hearing counsel
for the respondent admitted, "after going more thoroughly into the
matter," that it was subject to the jurisdiction of the Board.
II. THE ORGANIZATION INVOLVED
International Association of Cleaning and Dye House Workers,
Local No. 9, is a labor organization affiliated with the American
Federation of Labor, admitting to membership employees of the
respondent exclusive of supervisory employees. It is the successor to
Cleaners & Dyers Union, Local 18300, affiliated with the American
Federation of Labor.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
In August 1937 steps were taken by the Union, whose jurisdiction
extends over territory within a 100-mile radius of Pittsburgh,' to
organize employees of the cleaning and dyeing industry in Wash-
ington, Pennsylvania. Julius Octavi, organizer and secretary-
treasurer of the Union, and Nathan Weiner, business agent, conferred
in Washington with Fred Sweeney, former president of an extinct
local of Cleaners & Dyers Union, affiliated with the American Federa-
tion of Labor, confined in jurisdiction to Washington, with which
the respondent and other cleaning plants in Washington had pre-
viously had contractual bargaining relations. Sweeney told them
that the possibilities of organizing were very good, and that David
Resnick, senior partner of Resnick Cleaners & Dyers and at all
times mentioned herein the general manager in charge of the respond-
ent's plant, had asked him to renew the charter of the defunct
Washington local . Octavi and Weiner thereupon informed the
respondent, through Sweeney, that they would attempt to revive the
Washington local and requested the respondent to send its employees
4 The Union is also generally known as the "Pittsburgh Local."
RESNICK CLEANERS & DYERS, INC. 695
to a union meeting in the Washington County Courthouse. The
respondent complied with the request and told its employees to
attend this meeting. At the meeting, held in the latter part of
August 1937, approximately 50 employees of the, respondent were
present, in addition to several employees from one or two other
Washington cleaning and dyeing establishments. Several of the
.respondent's foremen, including John Dash, though.not eligible to
membership in the-Union, likewise attended 5 Octavi and Weiner
spoke and sought to learn whether the employees desired to affiliate
with the Union or to renew the charter of the defunct Washington
local. John Dash then addressed the meeting and stated : "We do
not want to affiliate with Local. No. 9 in Pittsburgh but want. to have
a local in Washington so that we can spend the money the way we
see fit, and not let the Pittsburgh people spend our money for us."
Only a few of the respondent's employees joined in the discussion,
.and only three, Helen Marmos, Lucille Martin, and Rose Mancuso,
joined the Union that evening.
A short time thereafter, the respondent called a meeting of its
employees in the plant after working hours. There, Mark Goldstein,
a brother-in-law of David Resnick and an employee of the respond-
ent, related to the employees an alleged personal experience he had
had with a union in Boston, where, he stated, as a result of the
activity of the union, his cleaning establishment had been shut down
and employees had lost their jobs. He cautioned the respondent's
employees against racketeers and advised them not to join the Union.
David Resnick also spoke at the meeting, warning the employees,
among other things, that it would be foolish to join the Union, which
was "handled by a bunch of racketeers," that he would close his
plant before he would recognize the Union, and that if they joined
the Union they would lose their jobs. Subsequently, none of the
.respondent's employees, not even those who had already joined the
Union, attended a union meeting scheduled to be held at the Wash-
ington County Courthouse on September 16, 1937, to which employees
of the respondent were invited by mailed notices and for which the
announced speaker was the secretary-treasurer of International
Association of Cleaning & Dye House Workers.
In January 1938 the Union renewed its organizing efforts among
the respondent's employees. It sent letters to employees of the re-
spondent urging them to organize, particularly in view of the attitude
of - the respondent manifested in an enclosed handbill, which had
been generally distributed by the respondent and which stated, inter
alia, that the respondent favored and approved of organized labor,
that there were no strikes or labor trouble at its Peter Pan stores
s For discussion of the supervisory status of John Dash and others, see infra.
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or its plant, and that pickets in front of its stores had been placed
there by competitors. A series of union meetings was thereafter
held in various private homes. As a result, membership in the Union
increased until the latter part of February 1938, at which time the
respondent discharged eight employees. Three additional employees
were discharged soon after in March. As we find below, nine of
these employees were discharged by the respondent. because of their
membership in and activity on behalf of the Union .6 Union members
consequently began to absent themselves from union meetings and
several sent in their resignations.
Believing that the discharges were discriminatory, the Union, in
accordance with its practice in such circumstances, submitted. a pro-
posed collective bargaining contract to the respondent in order to
secure recognition of the Union and. reinstatement of the discharged
employees. The respondent at all times failed to meet or negotiate
with the union representatives despite their repeated attempts to
secure a conference. Instead, the respondent, on about March 19,
1938, called a meeting of its employees at its plant during working
hours. David Resnick told the assembled employees that he had
received a contract from the Union and asked them to indicate to him
by a show of hands whether or not they desired to join the Union
and thus wished him to sign the contract. The employees present
unanimously voted against the Union and the contract. At no time
during the meeting was the contract produced, read, or explained.
After the vote, Resnick stated that he would sell all he had to fight
the Union. He also reiterated at this meeting that "if anybody
wanted to join the Union, they would be .fired, and he was prepared
to protect us [the employees] from the .Union."
Pursuant to a strike vote taken by employees of the respondent
who were members of the Union, the Union called a strike and formed
a picket line on March 21, 1938, to enforce its, demands, particularly
to secure the reinstatement of the discharged employees and protect
its members against future discriminatory discharge. At that time,
about 23 of the respondent's employees were members of the Union.
The strike was still in progress at the time of the first hearing.
Immediately after the commencement of the strike the respondent
caused the following advertisement to appear in the Washington
Observer, a newspaper circulating in Washington, Pennsylvania :
STATEMENT TO THE PUBLIC FROM RESNICK AND PETER PAN
CLEANERS AND THEIR EMPLOYEES
We wish to make a statement to the public to inform them
as to the circumstances surrounding this so-called strike at our
See Section III B , infra.
RESNICK CLEANERS & DYERS, INC., 697
plant this morning. A strike has been called at our plant without
the knowledge and consent of our employees by the Pittsburgh
Local of Cleaners & Dyers. On Friday, March 18, 1938, we
received a contract through the mail to our surprise from the,
International Cleaners & Dye House Workers Local No. 9 of
Pittsburgh, Pa., requesting that it be signed and returned by
Saturday, March 19; otherwise a strike would be called. This
contract was submitted by us to all our employes and they all
denied any knowledge of this contract and unanimously rejected.
it, stating that they did not want any connection with any cleaners
union operating from any county outside of Washington. Most
of our employes, who have been with us for the last ten year.3,
stated that so far they have been able to take care of their griev-
ances amicably and without the interference of some outside
agitators or instigators of competitive fields, and that this strike
has been called against their wish and without their consent.
The Resnick and Peter Pan Cleaners wish to state that they
are always willing to deal with their employes or their chosen.
representatives and that since they have been in business, they
have never had any labor troubles. We have always paid fair
wages and have always given our employes better working con-
ditions than most plants in this business. We have no strike at
our plant and we are going to protect the interests of our employes
to the best of our ability.
We have never denied our employes the right to organize and
we are entirely in sympathy with organized labor where the.
organization is voluntary and its policies are determined by the
local members and not by professional agitators or organizers.
In spite of the fact that many of our 186 employes have been
intimidated by some strong arm men, they have all with the
exception of one truck driver, reported to work as usual.
( Signed) RESNICK AND PETER PAN CLEANERS.
DAVID RESNICK, President.
ARTHUR RESNICK, Manager.
MONDAY, MARCH 21, 1938.
Substantially the same "Statement to the Public" was inserted by
the respondent in the Sunday, March 27, 1938, issue of The Pittsburgh
Press, a newspaper likewise circulating in Washington.
A number of witnesses for the Board testified, and we find ,° that
on numerous occasions from about the time the Union began its
organizing campaign until the time of the strike, and continuing
thereafter, the respondent, through David Resnick and supervisory
7 The evidence and contentions of the respondent to the contrary are discussed below.
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD .
employees, expressed to its employees its unmistakable opposition to
the Union., Thus, David Resnick told various employees that if
they joined the Union, they would be discharged, or he would be
compelled to shut his plant down, that the Union was no good and
was "nothing but a bunch of racketeers." Arthur Resnick, son of
David Resnick and assistant manager of the respondent, as well as
John Dash and Claude Moore, foremen, made coercive statements
of a similar nature to various employees. And Nick Barlow, an
employee who testified on behalf of the respondent, admitted that
David Resnick once called upon him to tell the assembled employees
of his experience with a union at another plant.
It is, moreover, clear that the respondent actively sought during
this period to ascertain the membership and activities of the Union,
for on "numerous" occasions, Claude Moore asked Theodore Holmes,
a union member who was subsequently discriminatorily discharged
by the respondent," whether he knew anything about the members of
the Union; and Arthur Resnick, at a time prior to the meeting at
which Goldstein spoke, requested another employee, Roosevelt Graves,
to report to him any conversations among employees concerning the
Union, under the implied threat that "it would be better for [Graves]
and [his] job."
In April 1938, about two or three weeks after the beginning of
the strike, Octavi and Weiner, officials of the Union, called at the
home of Mary Yarklin,° then employed by the respondent, to urge
her to join the Union and the strike. Other employees of the respond-
ent were also present, including Amelia Janowsky, Anna Gravel, and
her daughter, Mildred Gravel, all of whom lived in the same house,
which was owned by Anna Gravel. As the union officials were pre-
paring to leave, two employees of the respondent, Dominick Greco
and Spike Innis, came into the Yarklin apartment and told the union
officials : "Get the hell out of here and stay out and do not bother
these people." Arthur Resnick, who had come with Greco and Innis,
remained in the yard outside the apartment with a gun in his hand.
After Octavi and Weiner had departed in an automobile, Arthur
Resnick ordered Greco and Innis to follow them, the three men
reentered their own automobile, pursued, the union officials to the home
of another employee of the respondent, and finally drove off1° The
next morning, when Mary Yarklin returned to work at the plant,
Arthur Resnick told her that she should have told Greco and Innis
the night before, when they had questioned her, that the union officials
8 See Section III B, infra.
8 Also referred to in the record as Mary Yakrlin.
20 The conflicting evidence concerning this incident is discussed below.
RESNICK CLEANERS & DYERS, INC. 699
were bothering her, since under those circumstances, Greco and Innis
"would have had the right to crack them over the head."
Many of the foregoing findings were disputed at the hearings by
witnesses for the respondent. It was uncontroverted, however, that
at the Washington County Courthouse meeting in August 1937, fore-
men of the respondent were present and that one of them, John Dash,
expressed to the assembled employees clear opposition to their atl=ilia-
tion with the Union and his approval of a Washington local; " that
shortly thereafter, a brother-in-law of David Resnick spoke disparag-
ingly of, and cautioned employees assembled in the plant against,
the Union ; that none of the respondent's employees attended a sub-
sequently scheduled meeting of the Union; that at no time prior to
asking the employees to vote upon the union contract in March 1938
did David Resnick produce, read, or explain any provision of the
proposed contract ; and that the respondent inserted in several news-
papers a "Statement to the Public" which misrepresented that the
respondent had "submitted" the proposed union contract to the em-
ployees, which plainly expressed the respondent's hostility to the
Pittsburgh Local, and which sought to alienate the respondent's em-
ployees from the Union by referring to its organizers as "outside
agitators or instigators of competitive fields," and implying that it
was not a "voluntary" organization and that its policies were de-
termined by "professional agitators or organizers" rather than by
"the local members."
The respondent nevertheless urges, in '.its brief, that it was "in
favor of a union and that it was left to the employees to make their
own decision thereto." In support of its contention, the respondent
points to the undisputed facts that it urged its employees to attend
the first organizational meeting in August 1937; that David Resnick
told Weiner, the union official, in January 1938 that if the Union
secured his employees as members he would sign with the Union and
that Resnick also suggested that Weiner send letters to the em-
ployees, which was done ; that in March 1938, the respondent sought
the opinion of its employees when it.asked them whether they wished
the respondent to sign 'the proposed union contract; and that the
assembled employees then voted unanimously against recognition of
the Union. The respondent further seeks to support this contention
by reference to the testimony of _ a number of its witnesses who of-
fered versions of certain events varying from the findings-of fact
which we have set forth above. We turn now to a consideration of
"Although the respondent contends that it has no supervisory employees other than
David Resnick , it does not deny that persons whom we find below . to be foremen , including
John Dash , were present at the meeting and that John Dash spoke in the manner indi-
cated above.
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the testimony concerning these events; namely, the speech of Mark.
Goldstein, the various alleged anti-union statements and threats
made by the respondent, and the incident at the home of Mary Yarklin.
Although Goldstein admitted speaking to employees of the re-
spondent concerning his unfavorable experience with a union, he
testified that these statements were made to a group of employees
at the request of one of them, Theodore Holmes, after the general
meeting of employees had broken up and David Resnick, who had
not known Goldstein would speak, had left the room. David Resnick
likewise denied that he was present when these remarks were made,
that he had authorized them, or, indeed, that he had any knowledge of
this meeting. However, an employee who testified on behalf of the
respondent, as well as a number of Board witnesses, testified that
David Resnick was present at the meeting at which Goldstein spoke
to the assembled employees. Holmes denied that he had requested
Goldstein to make any remarks. And neither Goldstein nor Resnick
offered any explanation as to why the meeting of employees was
called. Under all the circumstances, like the Trial Examiner, we
cannot credit the version of this event presented by Goldstein or the
denials offered by David Resnick.
Nor can we give substantial weight to the categorical denials of
David Resnick and of a large number of other witnesses for the
respondent that David Resnick or anyone acting on behalf of the
respondent ever in any way coerced, intimidated, or urged the re-
spondent's employees not to join the Union. Practically all these
denials were made by persons presently in the employ of the re-
spondent, were general, and pro forma. They are in conflict with
much credible and mutually corroborative testimony of witnesses for
the Board, with the testimony in at least one instance of a witness
for the respondent,12 and With testimony that was not specifically
denied.13 Moreover, we find, as did the Trial Examiner, that the
credibility of witnesses for the respondent who made these denials,
in general, was clearly impaired; much of their testimony was badly,
shaken on cross-examination, and the testimony of the numerous wit-
22 Thus, Nell Ruth Zeker, an employee and witness for the respondent, testified that
after Goldstein made his speech at the plant meeting, which was antagonistic to. the
Union, David Resnick spoke to the assembled employees and asked them "if we [the
employees] still wanted to belong to a union."
13 As, for example, the testimony concerning the speech of John Dash, one of the
respondent's foremen, at the meeting at the Washington County Courthouse in August
1937. It is also significant to note that in its exceptions to the supplemental Interme-
diate Report, the respondent took no specific exception to the Trial Examiner's findings
that at the meeting called by David Resnick after be received the proposed. union con-
tract, he "informed employees that he was not against organized labor but indicated
he opposed union racketeers" and "that he would protect them from a racketeering
union."
RESNICK CLEANERS & DYERS, INC. 701
nesses who appeared at the second hearing was not only contra-
dictory, as among themselves, but was also, in an apparent attempt
to "cure" a supposed deficiency in the respondent's defense, in strik-
ing conflict with that presented by the respondent's witnesses at the
first hearing.14 Finally, these denials are highly inconsistent with
'the general picture of the respondent's antagonism to the Union pre-
sented by the uncontroverted evidence previously described."
A version of the incident at Mary Yarklin's home, differing ma-
terially from that which we have found above, was likewise given by
several of the respondent's witnesses. Dominick Greco testified that
he saw the union organizers in April 1938 while, in company with
Spike Innis, he was visiting Anna Gravel for "just a social call and
a bottle of beer"; that no threats were made; that the union organ-
izers left soon after; that neither he nor Innis followed them by
automobile ; and that Arthur Resnick was not present. On cross-
examination, Greco did not remember whether he saw the Yarklins
that evening, although it is clear that the union officials were visiting
the Yarklins in their apartment. Anna Gravel, also employed by
the respondent, generally corroborated Greco's direct testimony, but
on cross-examination, proved to be vague and uncertain, contradicted
herself several times, and took refuge in an assertion that she re-
membered nothing that had occurred in April 15 Arthur Resnick
14 Although the witnesses for the respondent at the first hearing, including David Resnick,
Anna Resnick , and others , all testified that at - the meeting called by David Resnick after
his receipt of the proposed union contract , David Resnick himself asked the employees to
vote by raising their hands on the question of whether or not they wanted the Union,
and was present when they voted , most of the respondent 's witnesses at the second
hearing testified to different effect, presumably to vitiate the possible inference that
David Resnick's presence influenced or coerced the expression of the employees ' choice.
They testified variously that only one vote was taken by the raising of hands after David
Resnick left the room and was under the direction of Nell Zeker , who was supposed to
report the result to David Resnick ; or that two votes were taken , one in the presence
of David Resnick and the second immediately after in his absence, with Nell Zel:er
presiding; or that the two votes were taken on different days; or that three votes were
taken : or even that the employees " voted on paper," not by raising of hands , and that
Nell Zeker brought the results to Resnick . Significantly enough, Nell Zeker herself,
testifying at the first hearing , stated that there was , one vote by hand under the
direction and in the presence of David Resnick . Moreover , on cross-examination, many
of the respondent 's witnesses at the second hearing testified to a version of the incident
which differed materially from that to which they had testified on direct examination.
11 Mrs . Gravel's testimony at this point was as follows :
Q. (By Mr. Dorsey ) You testified on direct examination that something hap-
pened in the month of April on a certain night. What night in April was it?
A. I don't know.
Q. You don't know. How did you know that when counsel for-respondents was
referring to it?
A. I don ' t know what that means.
Q. What is that?
A. I don't know what that means.
Q. As I recall it, counsel for the respondents said to you , "Now, I want you
to remember ," or "Do you recall a certain night in April?" and you ' said "Yes,"
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that he had never visited the home of Anna Gravel, and that,
although he had owned an automatic pistol, it was stolen from his
automobile in March 1938, a_ few days prior to the strike. All the
above testimony stands in contrast to the credible, mutually corrobo-
rative testimony of the union organizers, of Mary Yarklin, of her
husband, of Alphonso Gravel, son of Anna Gravel, and of three other
Board witnesses., Moreover, the respondent made no attempt specifi-
cally to controvert the testimony of Lucille and Betty Alsko, former
employees of the respondent, that one night in April 1938 Arthur
Resnick, seated in an automobile with Dominick Greco, Spike Innis,
and others, drove up and asked them the direction taken by the auto-
mobile of the union organizers, Octavi and Weiner. Under all the
circumstances, like the Trial Examiner, we are not persuaded by the
testimony of the respondent's witnesses concerning the whole incident.
The respondent also contended at the hearing that it had no
supervisory employees and hence could not be held responsible for the
conduct .of alleged foremen or supervisory employees. Thus, David
Resnick testified that aside from himself and Anna Resnick "there
is no other boss in the plant," which consists of three buildings ; and
Arthur Resnick, John Dash, and Claude Moore denied that they had
supervisory status since they merely performed duties assigned to
them by David Resnick. However, David Resnick admitted that his
son, Arthur Resnick, has the title of "Assistant Manager" of the
respondent, that John Dash is "head of The cleaning department,"
that when he [David Resnick] left on vacation in January 1938, his
son was in charge of the . plant, and that, upon his return, his son
and Moore reported to him on the conduct of employees. Arthur
and then you went on to tell what happened that night . I want to know how It Is
you knew what night it was.
A. I don't know what that ,mean, I don 't understand.
Q. Do you want an interpreter?
A. I don 't understand that.
Q. How was it you understood what night in April counsel for the respondent-
that is Mr. Weiner-when he was talking to you?
A. Yes.
Q. He said to you "On a certain night, I want you to recall a certain night
in April," and you clearly recalled that night, didn't you?
A. I' don't know nothing about.
Q. Do you know anything that happened in April?
A. No.
Q. You don't know anything that happened in the month of April?
A. No.
Q. That is all.
Counsel for the respondent thereafter sought, by leading questions , to nullify this
admission.
16 Octavi' s testimony that the union organizers were followed by an auto occupied by
Arthur Resnick, Greco, and Innis is further supported by the fact that as early as April
22, 1938, soon after the Yarklin incident , Octavi wrote to the Pennsylvania Bureau of
Motor Vehicles and learned , by a telegram introduced in evidence ; that the license num-
ber he had noted on the automobile which followed him and Weiner had been issued to
Mary Greco . mother of Dominick Greco.
RESNICK CLEANERS & DYERS, INC. 703
Resnick admitted he was the "Assistant Manager," gave orders to
others when he was told to do so by David Resnick, and that he had
recommended the lay-off of certain employees to his father upon the.
latter's return from his vacation. John Dash admitted he was "the
head cleaner"; and Claude Moore admitted that he frequently repri-
manded pressers, that he was-paid for whatever time he spent, pursu-
ant to David Resnick's orders, in seeing that others did their work
properly, and that he frequently reported on the work of others to
David Resnick. Other witnesses for the respondent admitted being
hired by, or receiving orders from, Arthur Resnick, that Claude
Moore is occasionally a "floorwalker" and "has charge of" the press-
ing department, that John Dash is "boss of silk," and that John
Barley is the "head spotter." 'Indeed, one of the respondent's wit-
nesses admitted that she had been told by David Resnick, during a
recess at the hearing, to testify that David Resnick "is the only boss."
And the uniform testimony of witnesses for the Board was that the
above-named persons were foremen or supervisory employees 17
Under the circumstances, like the Trial Examiner, we can hardly
credit the respondent's contention that it had no supervisory em-
ployees. We find that Arthur Resnick, John Dash, Claude Moore
and John Barley were, at all times mentioned herein, supervisory
employees of the respondent, that their acts, statements, and conduct
reflected the respondent's hostility to the Union, and that the
respondent is answerable for the conduct of these supervisory em-
ployees in their relations with the ordinary employees .18
Thus, it is clear from all the evidence, and we find, as did the Trial
Examiner, that the respondent, while pretending to be friendly to
"organized labor" and in the guise of a self-appointed protector of
its employees against "racketeering" unions, actively instituted
measures designed, on the one hand, to coerce its employees either to
organize an autonomous Washington local, distinct and apart from
the Pittsburgh Local, or not to organize at all, and, on. the other, to
obstruct and prevent the successful culmination of the organizing
efforts of the Pittsburgh Local. Therefore, having been informed
that a meeting would be held at which the defunct Washington local
might be revived, the respondent directed its employees to attend.
At the meeting the respondent, through the presence of several fore-
men, sought to intimidate its employees and, through an address of
17 It is interesting to note that the respondent , in its briefs , no longer argues that it
has no supervisory employees.
18 See International Association of Machinists, Tool and Die Makers Lodge No. 35,
affiliated with the International Association of Machinists , and Production Lodge No.
1200, affiliated with the International Association of Machinists v. N. L. R. B., 110 F. (2d)
29 (App. D. C.), aff'g. Matter of The Serrick' Corporation and International Union,
United Automobile Workers of America, Local No. 459, 8 N. L . R. B. 621.
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
one of the foremen, expressed its opposition to their affiliation with
the Pittsburgh Local and the respondent's approval of the revival
of a Washington local. Thereafter, at a meeting in the plant, the
respondent, through David Resnick, identified the Union with
"racketeers," warned its employees against, and threatened to dis-
charge them if they joined, the Pittsburgh Local, and to close the
plant rather than recognize it; through Resnick's brother-in-law, the
respondent repeated and illustrated its warnings about "racketeers."
That these measures were proving effective is indicated by the failure
of any employee, even those who had joined the Union, subsequently
to attend a scheduled meeting of the Union of which they had been
notified.
Renewed organizing efforts of the Union beginning in January 1938
were met by numerous . anti-union threats and warnings against
"racketeers" by David Resnick and supervisory employees, by the
respondent's close surveillance of union members and activity, and,
as we find below, by the respondent's discriminatory discharge, for
union membership or activity, of nine employees. Upon the receipt
of a proposed union contract, the respondent failed to negotiate with
the Union but instead asked its employees, at a meeting called in
the plant during working hours for that purpose, to express their
opinion thereon in the intimidatory presence of David Resnick, Anna
Resnick, and supervisory employees. Upon the calling of a strike
by the Union, the respondent continued its campaign of coercion and
intimidation by inserting statements in newspapers with local circula-
tion in which it again expressed its hostility to the Pittsburgh Local,
calling the Union's officials "outside agitators or instigators of com-
petitive fields" and implying that the Union was under the domina-
tion of "professional agitators" rather than of local members. Al-
though the respondent professed to a union official its willingness to
sign with the ' Union if its employees became members, it sought
continually, by the above methods,. to prevent its employees from
joining the Union. And finally, after the strike was in progress, the
respondent sought to intimidate union organizers by exhibiting a
show of force, and by threatening and trailing them.
We find that by each of the afore-mentioned acts and statements,
and by the afore-mentioned course of conduct, the respondent has
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed them in Section 7 of the Act..
B. The discriminatory discharges
The complaint alleges that on various dates between February 18
mnd March 17, 1938, the respondent discriminatorily discharged
RESNICK CLEANERS & DYERS, INC. 705
Robert Campbell,' Theodore Holmes, Roosevelt Graves, Nathaniel
Johnson,19 Rose Mancuso, Lucille Martin, Hattie Bell Keene,20 Harry
Meredith, George Riley, Mary Kovall, and Curtis Henderson, thereby
discouraging membership in the Union. The Trial Examiner
sustained the allegation as to seven of these persons but not as to
Keene, Meredith, Kovall, and Henderson.
The respondent initially contends that it had no knowledge that
any of the persons named in the complaint were members of, or active
on behalf of, the Union. In support of this contention it urges the
fact that most of the persons allegedly discriminated against testified
that they never informed David Resnick that they were members of
the Union and both David and Anna Resnick denied the possession
of such knowledge. . However, as we have already described, the re-
spondent, through Arthur Resnick and Claude Moore, sought, on a
number of occasions prior to the discharges, to ascertain the member-
ship and activities of the Union. That these efforts were fruitful
and continuous may be perceived from the fact that Arthur Resnick,
was aware of the presence of the union organizers at the Yarklin
apartment and, accompanied by two other employees of the respond-
ent, was able, as' stated above, to follow the organizers to that apart-
ment and thereafter to the home of another employee. Moreover,
almost without exception, the persons named in the complaint were
active in soliciting other of the respondent's employees to join, and
at least one of these persons informed a foreman of. his membership
in the Union.21 It is a reasonable inference under all the circum-
stances, and we find, that the respondent could have learned, sought
persistently to learn, and did learn of the union membership and
activities of the employees named in the complaint.
The respondent also contended, in its answer, that one of the rea-
sons for the discharges in February and March 1938 was that they
were warranted by "business conditions," and that "due to the con-
tinuance of said business conditions, the said employees whose
employment was so terminated have not been replaced by the employ-
ment of any new employees to take their place or places." It is
uncontroverted that a number of those discharged were told, at the
time of termination of their employment, that they were being laid
off until further notice because.of lack of work. And David Resnick
testified that none of the employees who were discharged or laid off
were replaced'22 that 7 or 8 persons were hired by the respondent after
19 Also referred to in the record as Nathan Johnson.
20 Also referred to in the record as Hattie Keen.
11 These facts are specifically set forth below in the statement of the union activities
of the respective individuals alleged to have been discriminatorily discharged.
22 Claude Moore, foreman in the pressing department , similarly testified that no one has
been employed to replace the 6 pressers who were among the 11 persons laid off or
discharged.
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the lay-off of the aboved-named 11 employees only in order to protect
the plant against numerous fires which had. broken out after the
beginning of the strike. It is clear, however, that the respondent's
busy season began, in 1938, at least 2 weeks before Easter, which fell
on April 17, and continued until at least the middle of May. Records
compiled by the respondent itself show that at least 40 additional
persons were employed for plant operations from March 12 to July
14, and that the number of persons on the plant pay roll rose from 74
on February 19 and 68 on February 26, to 100 on April. 9 and 77 on
June 30. Nevertheless, none of the employees laid off or discharged
in February and the early part of March were recalled to work,
despite the prior practice of the respondent generally to observe the
principle of seniority in lay-offs and in rehiring. Anna. Resnick, an
owner of the respondent, testified that the persons named in. the com-
plaint were laid off only "because they were not producing the work
properly," that she knew this because David Resnick "always tells
me what goes on," and that she could not explain why these persons
were told that they were being. laid off because of lack of work. In
view of these facts, we find there is no merit in the defense that
persons named in the complaint were laid. off due to lack of work.
That the respondent appears to have itself abandoned this defense is
indicated by the fact that it no longer urges it in its several briefs
but claims only that the employees were discharged generally for
incompetence or insubordination.
We turn now to a consideration of the facts concerning each of
the alleged discriminatory discharges.
Robert Campbell. Campbell was hired in June 1937 as a dry
cleaner's helper and was discharged on February 18, 1938.. He joined
the Union on February 15, 1938, thereafter attended union meetings
and actively solicited other employees to join prior to his discharge.
On February 18, 1938, David Resnick brought a pair of torn trous-
ers to Campbell, who was in the cleaning room, and said, "Bob, we
can't stand this. I'll have to let you ' go," and thereupon discharged
him. It was conceded by witnesses for the respondent that clothing
is frequently torn in the cleaning room, either in the machine or in
the. process of extracting garments from the machine, and that since
two other men performed the same work as Campbell, responsibility
for tears could not, in the absence of direct observation, be attributed
to any one person. No evidence was adduced definitely to establish
Campbell's responsibility for the particular tear, or even that the tear
had occurred in the cleaning room; indeed, neither David Resnick,
.Nick Barlow, the head cleaner, nor other witnesses for. the respondent
ever saw Campbell actually tear any clothes. Although a few wit-
nesses for the respondent who 'did not work in the cleaning room
RESNICK CLEANERS & DYERS; INC. 707
testified that they had heard David Resnick reprimand Campbell
because of torn clothes, two head cleaners with whom Campbell had
worked, as well as other witnesses for the respondent, admitted that
Resnick had not singled out Campbell and rebuked him individually'
but had rebuked the group of cleaners generally. We therefore
credit Campbell's testimony that he had never .been personally repri-
manded, but that Resnick had warned all the cleaners as a group,
in the fall of 1937, against tearing garments while extracting them
from the machine. Campbell had, prior to. his discharge, received
two wage increases within a period of 2 months 23 and had never.
been laid off. 24
We are of the opinion and we find that prior to his membership.
in and. activity on behalf, of the Union, Campbell was considered a
good employee, and that the respondent discharged Campbell because
of his union membership and activity. By discharging Campbell,
the respondent discriminated in regard to his hire and tenure of
employment, thereby discouraging membership in the Union and
interfering with, restraining, and coercing its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act.
Campbell desires to return to his former position in the employ of .
the respondent.
The pressers. On February 19, 1938, Claude Moore, foreman in
the pressing department, informed Theodore Holmes, Roosevelt
Graves, and Nathaniel Johnson, rough pressers, and Rose Mancuso,
Lucille Martin, and Hattie Bell Keene, silk pressers, that they were
laid off until further notice because of lack of work. None of these
employees was subsequently recalled to work. At the time of termi-
nation of their employment, the busy season preceding Easter was
about to begin. As we have found above, there is no merit in the
respondent's contention that any employees were then laid off due to
lack of Work .25
22 David Resnick testified that raises were given to employees automatically every 6
months. Witnesses for the Board, however, denied that raises were automatic and
pointed to instances of persons who did not receive such raises. Under all the circum-
stances, particularly in view of the failure of the respondent to produce company records
or corroborative evidence hearing on this contention, we cannot credit Resnick's testi-
mony. In any event, Campbell's two 'raises were both received within a period of 2
months, indicating the satisfactory nature of his work.
24 It is interesting to note that despite Campbell's alleged incompetence, David Resnick
testified he was willing to reemploy Campbell on different work and counsel for the
respondent, in a brief submitted to the Trial Examiner, states that the respondents
"were willing and are still willing to rehire .. . Campbell."
25 The respondent's records show that in the week of February 21, 1938, there were 25
employees and 8 so-called "apprentices" engaged in pressing, and that in the week of
April 11, 1938, there were 27 employees and 19 so-called "apprentices" engaged in this
work. The "apprentices" generally received less wages than other employees ; in about
four instances, "apprentices" were "regular helpers" who had been previously laid off
and were recalled for Easter.
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the hearing, the respondent contended that the chief reason for
the discharge of the above-named pressers was their incompetence or
insubordination, that for this reason Arthur Resnick recommended
to his. father, upon the latter's return from his vacation in February
1938, that they be laid off until they learned their lesson, and that
they were discharged a few days later. We turn now to a considera-
tion of the facts concerning each of the respective rough pressers.
Theodore Holmes began to work for the respondent as a rough
presser in August 1935. He joined the Union in December 1937,
attended union meetings and prior to his discharge solicited members
for the Union from among his fellow employees. On a number of
occasions his foreman, Moore, asked Holmes if he knew anything
about members of the Union. Two or three days before his discharge,
Holmes showed his union membership card to Moore. Moore there-
upon called him a "fool," said he would report the matter and see that
Holmes was discharged.
In the 21/2 years he had worked for the respondent, Holmes had
never been laid off. He testified that of -the- 12 rough pressers; he
had more seniority than most, and several were retained who had
less seniority, that no complaints were ever made to him individually
concerning his work, that he used no vile language in the plant, and
that he had received four wage increases, the last one in October or
November 1937.
During the winter Holmes received 57 cents an hour from the
respondent, and during the summer, $25 weekly. In February 1938
he was earning approximately $21 a week. He desires reinstatement
to his former position with the respondent.
Nathaniel Johnson was employed -by the respondent as a rough
presser in August 1935. He joined the Union the last week in
December 1937, attended union meetings, and requested other em-
ployees to join the Union.
Except for a 1-week vacation, Johnson worked steadily from
August 10,'1935, to the date of his discharge on February 19, 1938.
He testified that at the time of his discharge only one rough presser
had more seniority than he had, that he had never used vulgar lan-
guage or been personally reprimanded, David Resnick having only
rebuked a group of about 12 or 15 pressers as a whole for "double
creasing" of trousers, and that he had received four wage increases,
the last one in the fall of 1937.
Johnson was paid 57 cents an hour during the slack season, when
he worked from 48 to 60 hours a week, and $25 a week during thr;'
busy season.. In February 1938, he was earning about $21 weekly.
He desires reinstatement to his former position:.
RESNICK. CLEANERS & DYERS, INC. 709
Roosevelt Graves began to work for the respondent as a rough
presser in August 1936. He joined the Union in December 1937,
attended union meetings and solicited members for the Union from
among the respondent's employees prior to his discharge. In about
September 1937, Arthur Resnick had requested Graves to report to
him any conversations among employees concerning the Union.
Graves testified that prior to his discharge, he had never been
laid off, and that there had never been any complaints about his work
or his conduct in the plant. He received the same wage increases
received by Holmes and Johnson.
During the. busy season Graves was paid $24 weekly ; during the
slack season he received 55 cents an hour. In February 1938, he was
earning about $24 a week. He desires to return to his former posi-
tion at the plant.
At the first hearing, witnesses for the respondent testified generally
that Holmes, Johnson, and Graves were frequently reprimanded by
David.Resnick and others for their bad or careless work; that on
these occasions the men used vile language or were indifferent; that
they did not attend strictly to their duties but instead threw buttons
and garments about.- At the second hearing, in addition to testify-
ing generally to this effect, witnesses for the respondent presented
for the first time varying testimony as to other alleged types of mis-
conduct on the part of Holmes, Johnson, and Graves. Thus it was
testified that they frequently drank liquor or were drunk in the plant;
and on one occasion it was necessary to send home either Graves or
both Holmes and Graves because of intoxication. One of the re-
spondent's witnesses who had been employed by the respondent since
Y" Moore , foreman in the pressing department , as well as other witnesses for the re-
spondent at the first and second hearings , admitted that defective pressing and repri-
mands to pressers were common in the plant. One of the respondent 's witnesses who
worked as a presser in the plant for almost 3 years , testified as follows on cross-
examination :
Q. (By Mr. Dorsey) You worked three years, Ann, and in that period of time
hasn't it been quite customary for Mr. Resnick to reprimand any number of
employees because of the work they turned out?
A. (By Ann Steratore) Yes.
Q. Did you ever hear Mr. Resnick discharge anybody for double pressing a suit?
A. No. If the suits they press are not right and they don 't do what he tells
them, he ought to.
Q. Did you ever hear him discharge them for that specific reason?
A. No.
Q. Does he discharge everyone for double pressing?
A. Not if they know bow to do it.
Q. Does be discharge everybody who breaks a button?
A. No, he does not.
Q. That is one of the things that happens in pressing establishments such as
Resnick 's, isn't it?
A. That's right.
Q. That is, it is a part of the business that at certain times employees might
double press and break buttons, isn 't that correct?
A. That's right.
283035-42-vol. 24--4 6
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1935 and who worked about 12 feet from the' three men testified that
she never saw them drink liquor in the plant or observed them being
sent home for being intoxicated. Another witness, on the other hand,
testified that the men repeatedly drank liquor in the plant in 1936
and 1937 as well as prior to their discharge in 1938. This same wit-
ness, upon cross-examination, after maintaining that David Resnick
sent Holmes and Graves home for being intoxicated at a time when
David Resnick was in Florida, finally explained that Resnick could
have communicated his order to the plant in Washington by tele
phone. Witnesses for the respondent further testified at the second
hearing that at one time the men were reprimanded by David Resnick
for wearing shorts while working beside a number of girls. On
cross-examination, however, it was testified that this event occurred
in the summer of 1937 and that girls working in the plant during
periods of intense heat often wore shorts and halters. And one of
the respondent's witnesses even testified that Holmes, Johnson, and
Graves "double-creased" trousers every day during 1936, 1937, and
1938, and that David Resnick used to rebuke them for it three or four
times a week in 1936, 1937, and 1938. Johnson and Holmes, in rebut-
tal, denied each of the above allegations of misconduct.
We have already adverted to the lack of credibility manifested
generally by, witnesses for the respondent at the second hearing.27 No
less was this lack of credibility manifested with respect to their
testimony concerning Holmes, Johnson, and Graves. The strength of
.much of this testimony was greatly weakened by cross-examination
and by the mutual inconsistencies and contradictions of these wit-
nesses. Moreover it is significant to note that neither David Resnick
nor any other witness for the respondent at the first hearing claimed
that the drinking of liquor or the wearing of shorts was a reason for
the discharge of the three rough pressers. And we find it particu-
larly difficult to believe that the respondent would have maintained
in its employ and would have granted a number of wage increases to
employees who did bad work every day for a period of over 2 years
and who were reprimanded therefor three-or four times a week dur-
ing this entire period. Further striking inconsistencies in the re-
spondent's position appear in the fact that the sole reason advanced
to the employees at the time of their discharge was lack of work
whereas the chief reason advanced at the hearings was their incom-
petence or insubordination, and in the fact that despite the respond-
ent's contention and its abundant testimony concerning the alleged
misconduct and inefficiency of Nathaniel Johnson, David Resnick tes-
27 See footnote 14, supra.
RESNICK CLEANERS & DYERS, INC. 711
tified that he was willing to reemploy Johnson at his former position
in the plant .211
Under the circumstances we cannot credit the testimony of the.
respondent's witnesses concerning the alleged misconduct of Holmes,
Johnson, and Graves. We accept as true the testimony of the Board's
witnesses set forth above, and find to be facts the matters set forth
in such testimony. Accordingly, we find that the respondent dis-
charged Holmes, Johnson, and Graves because of their union mem-
bership and activities. By these' discharges, the respondent discrim-
inated, in regard to their hire and tenure of employment, thereby
discouraging membership in the Union and interfering with, restrain-
ing, and coercing its employees in the exercise of the rights guaran-
teed in Section 7 of the Act.
We turn now to a consideration of the facts concerning each of
the discharged silk pressers.
Rose Mancuso began to work for the respondent as a silk presser
in August 1935. She was one of the first to become a member of the
Union, having joined at the close of the organizational meeting ii
August 1937 after speaking at the meeting, in the presence of several
of tho respondent's foremen, of what she termed the "sweatshop"
conditions at the respondent's plant. Thereafter she attended union
meetings and asked other employees to join.'
Mancuso testified that there had never been any complaints about
her work, and that, except when ill, she had worked steadily since
she was hired. She denied ever being' reprimanded for "being un-
steady in attending to work." In August 1937 she received a $2
weekly wage increase.
During the slack season, Mancuso was paid 34 cents an hour;
during the busy season, she received $15 weekly. In January and
February 1938, she was earning from about $9 to $15 weekly. She
desires to return to her former position in the plant.
Lucille Martin was hired by the respondent as a silk presser in
August 1935. Like Rose Mancuso, she joined the Union at the close
of its first organizational meeting in August 1937, after having
similarly addressed the meeting in the presence of several foremen.
She thereafter asked other employees to join the Union.
Prior to her discharge, Martin had never been laid off by the re-
spondent. Moreover, she testified that no complaint was ever' made
concerning her work and denied that she had burned dresses or put
In a brief, submitted to the Trial Examiner, counsel for the respondent states : "it
is very significant to note the real attitude of the respondents when they were willing
and are still willing to rehire Johnson, Campbell, Riley and Curtis Henderson, but not
the others by reason of their utter incompetence, insolence and disregard for their
work."
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
aside dresses which, were difficult to press. She received a $2 weekly
wage increase in the fall of 1937.
Martin received $15 weekly during the busy season and 34 or 35
cents an hour during the slack season. In January and February
1938, she was earning from about $12 to $15 weekly. She desires re-
instatement to her former position with the respondent.
Hattie Bell Keene began to work for the respondent as a silk
presser in September 1936. She joined the Union in December 1937,
attended union meetings, but did not ask other employees to join the
Union.
Keene had been laid off by the respondent before, in about December
1936, but had been recalled during the busy Easter season of 1937.
She admitted that some time around January 1938, Arthur Resnick
rebuked her for not "putting out enough clothes," although she testi-
fied that she thought she had then been "putting out" as many gar-
ments as other girls. She denied that she was ever reprimanded by
David Resnick or Moore for scorching dresses.
Keene received $13 weekly during the busy season and 30 or 35
cents an hour during the slack season. In January and February
1938, she was earning from about $10 to $13 a week. She desires
reinstatement to her former position in the plant.
Witnesses for the respondent testified variously, at the first hear
ing, that Mancuso, Martin, and Keene were frequently reprimanded
for talking too much, loafing and eating lunches on company time,
and for their bad work, which included stretching of sleeves, scorch-
ing dresses, ripping of seams, attempting to avoid the pressing of
"specials," which had to be done quickly, and of dresses difficult to
press. At the second hearing, other witnesses for the respondent
testified to similar effect as to Mancuso and Martin. No further
testimony was presented as to Keene, however, the Trial Examiner
having meanwhile recommended in his Intermediate Report that the
complaint be dismissed ' in so far as it alleged her discriminatory
discharge. The value of much of this testimony at both hearings
was greatly diminished by cross-examination, these same witnesses
admitting, inter alia, that all employees make mistakes, that all are,
on occasion, reprimanded for bad work, that dresses are scorched very
often, that other girls quite frequently try to avoid doing "specials"
or difficult dresses, and that sometimes stretching sleeves "can't be
helped." Witnesses for the respondent also testified that Mancuso
and Martin repeatedly ate lunches on company time for a period of
2 years before their discharge, and that these girls were continuously
reprimanded by David Resnick in 1936, 1937, and 1938, one witness
testifying that rebukes for various reasons occurred at least three
times a week in 1936 and 1937, and more often in 1938.
RESNICK CLEANERS Sc DYERS, INC. 713
As in the case of the rough pressers previously, discussed, we do not
-find it possible to believe, as the respondent would have us believe;
that Mancuso and Martin would have been steadily retained in the
respondent's employ and given a wage increase, if; during a period
of almost 3 years, David Resnick himself was compelled to repri-
mand them for their inefficiency or insubordination at least three
times each week. Under all the circumstances, we cannot credit the
testimony of the respondent's witnesses that Mancuso and Martin
were continually inefficient and insubordinate. We accept as true
the testimony of the Board's witnesses set forth above, and we find
to be facts the matters set forth in such-testimony. Accordingly, we
find that the respondent discharged Mancuso and Martin because of
their union membership and activities. By these discharges, the re-
spondent discriminated in regard to their hire and tenure of em-
ployment, thereby discouraging membership in the Union and inter-
fering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
We are not satisfied, however, that Hattie Bell Keene was dis-
charged because of her union membership or activity. Keene herself
:admitted, and we find, that unlike Mancuso and Martin, she had been
reprimanded for her low output, that she had been previously laid
,off and was recalled during the succeeding busy season, and that
She had not asked other employees to join the Union. Furthermore,
there is no evidence that she ever received a wage increase from the
respondent.
Harry Meredith. Meredith was first employed by the respondent,
as a hat blocker, in September 1937 and was discharged on February
22, 1938. He joined the Union in the first week of February 1938,
thereafter attended union meetings, and asked one other employee
to join the Union.
At the hearing Meredith first testified that there had been no
complaints about his work. On cross-examination, however, Mere-
dith admitted, and we find, that his employment had previously
been terminated on January 11, 1938, and that he had been rehired
.a week later by Arthur Resnick at a reduced salary with the warn-
ing that if there were any more complaints regarding his work, he
would again be discharged. Meredith testified that on the date of
his final discharge David Resnick informed him that he was pleased
with his work, that there was no further work to be done, and that
Meredith would be recalled later on. David Resnick, on the other
hand, testified that Meredith was discharged a second time on
February 22 -because complaints concerning his work had continued
after Meredith had been rehired. An employee who, among other
things, had helped to -block hats similarly testified that Meredith
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had been frequently reprimanded for burning sweat bands and
blocking hats improperly. Under the circumstances, we are in
agreement with the Trial Examiner and are not satisfied that
Meredith was discharged for union membership or. activity.
George Riley. Riley began to work for the respondent as a silk
spotter in March 1936 and was "laid off" on March 14, 1938. He
joined the Union in December 1937, attended union meetings and
urged other employees to join. On March 14, 1938, his foreman,
John Dash, told him that "work was getting slack and they would
have to lay [Riley] off for a period of time." This "lay-off" was
highly unusual both because it occurred at the beginning of the
pre-Easter busy season, and because among the five silk spotters,
Riley was third in seniority and the two silk spotters with less
seniority were retained.29 Moreover, a former employee, Arthur
Riddle, who had not worked for the respondent for 5 or 6 months,
was rehired on the next day to perform work previously done by
Riley. Riley was never thereafter recalled to his former position,
although David Resnick had told him at about the time of his
"lay-off" that he would "put [Riley] back to work" when business
"picked up."
The respondent does not deny that Riley's services had been satis-
factory, that he had never been reprimanded or previously laid off,
and that he had received five salary increases, the last one in Febru-
ary 1938. The respondent contends, however, that Riley was never
discharged, that he was only laid off for a couple of weeks, that it
is still willing to reemploy him, and that after his lay-off he did
not accept David Resnick's offer that he work temporarily as a
painter on Resnick's farm. Riley testified that Resnick offered to
give him the painting job for a few weeks if Riley could secure
another painter to assist him, and that he did not secure another
painter. In any event, we deem it immaterial that Riley did not
accept an offer of a temporary position completely different in kind
and location from the position which he had formerly occupied.
We are of the opinion, under all the circumstances, that Riley was
discharged from his position as silk spotter because of his union
membership and activities. By discharging Riley, the respondent
discriminated in regard to his hire and tenure of employment, thereby
discouraging membership in the Union and interfering with, re-
straining, and coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
At the time of his discharge, Riley was earning $18 a week. Eight
days thereafter he secured a position in Toronto, Ohio, at which
m As we have already stated , the respondent had generally observed the principle of
seniority in lay-offs.
RESNICK CLEANERS & DYERS, INC. 715
he was earning $22 a week at the time of the hearing. The record
does not reveal the nature of his present work.. Riley desires re-
instatement to his former position with the respondent because his
expenses of living in and near Washington, Pennsylvania, are about
$5 less each -week than his expenses in Toronto, Ohio.
Mary Kovall. Kovall began to work for the respondent as a rough
spotter in February 1937 and her employment continued until her
discharge on March 14, 1938. She had joined the Union on March 10,
1938, attended two union meetings; and asked another employee to
join.
Kovall testified that on March 14, during the busy season, her
foreman, John Dash, told her that she was laid off because "work
was slack" and that she would probably be recalled within a week.
On the other hand, David Resnick testified that she was discharged
because she was frequently absent on busy days and used to loaf in
the plant. Kovall denied that there had ever been any complaints
about her work or that she remained away on busy days and testi-
fied that she had been absent from work on only two occasions, once
from March 23, 1937, to April 8, 1937, when she was ill, and aa
second time when she did not work for. 5 or 6 days during the
period following the Easter rush in 1937, after which she was re-
called to work. The respondent produced no evidence, aside from
the above testimony of David Resnick, to establish its contentions
concerning Kovall's frequent absences and bad work. Upon the
basis of the entire record, we cannot accord substantial weight to
the unsupported statements of David Resnick. We consequently
find that at no time prior to her discharge was Kovall's work criti-
cized and that her last absence from the plant occurred almost a
year prior to her discharge. In the light of all the facts, we find
that Kovall was discharged because of her union membership and
activities. By her discharge, the respondent discriminated in regard
to her hire and tenure of employment, thereby discouraging member-
ship in the Union and interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed in Section 7
of the Act.
Kovall was paid 27 cents an hour by the respondent during the
slack season, and $12 a week during the busy season. She desires
reinstatement to her former position with the respondent.
Curtis Henderson. Henderson began to work for the respondent
as a washer boy in the cleaning room in August 1937; This em-
ployment continued until January 5, 1938, when he sustained in-
juries in the scope of his employment and began to receive workmen's
compensation. He had joined the Union on December. 20, 1937,, and
attended union meetings, even after he ceased work; in January.. On
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
March 17, 1938, after he had recovered from his injuries, Henderson
reported for work, but was told by his foreman, John Dash, that
his services were no longer required. Henderson thereupon visited
David Resnick in the latter's home and was told that the respondent
had not been able to wait until Henderson returned to work. Sev-
eral days later, Henderson joined the Union's picket line.
There is no evidence that Henderson was not a satisfactory worker.
Indeed, he had received a $2 salary increase, and David Resnick
testified that he would reemploy Henderson if he were needed for
different work.
Although Henderson's case is not free. from doubt, under all the
circumstances, particularly the respondent's active hostility to the
Union and union members, the fact that a large number of new
employees were hired by the respondent for the Easter rush after
Henderson's discharge, and the respondent's failure to rehire Hen-
derson despite its profession that it would reemploy him if other
work were available, we are persuaded and find that his discharge
was due to his membership in the Union. By discharging Hender-
son, the respondent discriminated in regard to his hire and tenure
of employment, thereby discouraging membership in the Union and
interfering with, restraining, and coercing its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act.
At the time Henderson ceased work for the respondent he was
earning $17 a week. He desires to be reinstated to his former
position.
C. Employees who went on strike
As indicated above,30 the Union called a strike on March 21, 1938,
chiefly because the respondent had discharged a number of employees
in February and March and in order to protect its members against
future discrimination. In Section III, A and B, above, we have
found that by discharging each of nine of these employees, and by
various other acts prior to March 21, the respondent had engaged
in and was engaging in unfair labor practices. Accordingly, we find
that the strike which commenced on March 21, 1938, was caused by
the aforesaid unfair labor practices of the respondent.
The respondent, while admitting that a strike was called by the
Union on that date, contends that none ,of its employees participated
in the strike. Aside from persons whom we have found to have
been discriminatorily discharged and who consequently retained their
status of "employees," 31 the record shows, and we find, that a num-
81 See Section III A.
$' Section 2 (3) of the Act.
RESNICK CLEANERS & DYERS, INC. 717
ber of the respondent's employees joined the strike and were still
striking at the time of the hearing32
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above,
occurring in connection with the operations of the respondent de-
scribed in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce 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
Having found that the respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist therefrom and
to take certain affirmative action designed to effectuate the policies
of the Act, and to restore as nearly as possible the conditions which
existed prior to the commission of the unfair labor practices.
We have found that the respondent discriminatorily discharged
Robert Campbell, Theodore Holmes, Nathaniel Johnson, Roosevelt
Graves, Rose Mancuso, Lucille Martin, George Riley, Mary Kovall,
and Curtis Henderson. Accordingly, we shall order the respondent
to offer them reinstatement to their former or substantially equiva-
lent positions, without prejudice to their seniority and other rights
and privileges. We shall further order the respondent to make them
whole for any loss of pay they have suffered by reason of their dis-
charges : by payment to Robert Campbell, Theodore Holmes, Nathan-
iel Johnson, Roosevelt Graves, Rose Mancuso, Lucille Martin, and
George Riley of a sum of money equal to the amount which each of
them would normally have earned as wages from the date of his or
her discharge to the date of the offer of reinstatement; and by pay-
ment to Mary Kovall and Curtis Henderson of a sum of money equal
to the amount which he or she would normally have earned as wages
from the date of his or her discharge to the date of the Intermediate
Report, and from the date of the Order herein to the date of the
offer of reinstatement ;33 less net earnings during said periods. 34
82 Octavi, a union official and organizer, estimated that there were about 28 employees
on strike at the time of the hearing. Moreover, several witnesses employed prior to the,
strike testified, without contradiction, that they had left their positions with the respond-
ent to go on strike after March 21. 1938.
13 See Matter of D. R. Haffelfinger Company, Inc. and United Wall Paper Crafts of
North America, Local No. 6, 1 N. L. R. B. 760.
34 By "net earnings" is meant earnings less expenses, such as for transportation, room,
and board, incurred by an employee in connection with obtaining work elsewhere than
for the respondent, which would not have been incurred but for his unlawful discharge
and the consequent necessity of his obtaining 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. Direct
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We have further found that the strike of the respondent's em-
ployees on March 21, 1938, was caused by the respondent's unfair
labor practices. We shall order the respondent, upon application, to
reinstate to their former or substantially equivalent positions, with-
out prejudice to their seniority and other rights or privileges, those
of its employees, aside from those listed in the previous paragraph,
who went on strike. Such reinstatement shall be effected in the
following manner : All persons hired after March 21, 1938, and who
were not on the pay roll as of that date, shall, if necessary to provide
employment for those to be offered reinstatement, be dismissed. If
thereupon, by reason of a reduction in the force of employees needed,
there is not sufficient employment immediately available for the re-
maining employees, including those to be offered reinstatement, all
available positions shall be distributed among such remaining em-
ployees in accordance with the respondent's usual method of reducing
its force, without discrimination against any employee because of his
union affiliation or activities, following a system of seniority to such
extent as has heretofore been applied in the conduct of the respond-
ent's business. Those employees remaining after such distribution,
for whom no employment is immediately available, shall be placed
upon a preferential list prepared in accordance with the principles
set forth in the previous sentence, and shall thereafter, in accordance
with such list, be offered employment in their former or in substan-
tially equivalent positions, as such employment becomes available and
before other persons are hired for such work. Our Order will also
provide that the above employees be made whole for any wages lost
by reason of the respondent's refusal to reinstate them for the period
beginning 5 days after the date of application to the date of offer of
relief or home-relief payments are not to be considered as "earnings" and hence are not
deductible . Matter of Vegetable Oil Products Company , Inc., a Corporation and Soap
and Edible Oil Workers Union, Local No. 18 409, 5 N . L. It. B. 52, amending 1 N. L. R. B.
989. Unemployment compensation benefits are similar in purpose and effect to home-
relief payment , and, therefore , are not deductible . Matter of Pennsylvania Furnace and
Iron Company and Lodge No. 1328, International Association of Machinists , 13 N. L. R. B.
49. The same is true of relief payments received from a union . Matter of Missouri-
Arkansas Coach Lines, Inc. and The Brotherhood of Railroad Trainmen , 7 N. L. R. B.
186; Matter of West Kentucky Coal Company and United Mine Workers of America,
District No . 23, 10 N. L. It. B . 88. Nor are monies received as disability compensation
from the Veterans ' Administration of the United States Government to be considered
"earnings" and deductible . Cf. Matter of Louis Hornick & Company, Inc . and Textile
Trimming Workers Union, Local 2410, United Textile Workers of America , 2 N. L. R. B.
983; Matter of Anwelt Shoe Manufacturing Company and Shoe Workers ' Protective
Union, Local No. 80, 1 N. L . R. B. 939. Monies received for work performed upon Fed-
eral , State, county, municipal, or other work-relief projects are not - to be considered as
earnings , but, as provided below in the Order, shall be deducted from the sums due each
of the employees herein , and the amount thereof . shall be paid over to the appropriate
fiscal agency of the Federal , State, county , municipal , or other government or govern-
ments which supplied the funds for said work -relief projects . Republic Steel Corporation,
et al . v. N. L. R . B. et al ., 107 F. ( 2d) 472 ( C. C. A. 3 ), enf'g as mod . as to other issues 1`
Matter of Republic Steel Corporation and. Steel Workers' Organizing Committee, 9
N. L. R. B . 219, cert. denied ,' 309 U. S . 684, May 20, 1940.
RESNICK CLEANERS & DYERS, INC. 719
reinstatement or placement upon a preferential list, as set forth
above, less net earnings 35 during said period.3e
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following;
CoNCLUsIONS of LAW
1. International Association of Cleaning and Dye House Workers,
Local No. 9, is a labor organization, within the meaning of Section
2 (5) of the Act.
and2. The respondent, by discriminating in regard to the hire an
tenure of employment of Robert Campbell, Theodore Holmes, Na-
thaniel Johnson, Roosevelt Graves, Rose Mancuso, Lucille Martin,
George Riley, Mary Kovall, and Curtis Henderson, thereby discour-
aging membership in the Union, 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.
5. The respondent, by discharging Hattie Bell Keene and Harry
Meredith, has not engaged in unfair labor practices, within the mean-
ing of Section 8 (3) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respondent,
Resnick Cleaners & Dyers, Inc., David and Anna Resnick, trading and
doing business as Resnick Cleaners, and David and Anna Resnick,
individually, their officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in International Association of
Cleaning and Dye House Workers, Local No. 9, or any other labor
organization, by discharging any of its employees, or in any other man-
88 See footnote 34, supra.
36 See Matter of Oregon Worsted Company and United Textile Workers of America,
Local 2435, 3 N. L. R. B. 36, enf'd, N. L. R. B. v. Oregon Worsted Company, 96 F. (2d)
193 (C. C. A. 9) ; Matter of Biles-Coleman Lumber Company and Puget Sound District
Council of Lumber and Sawmill Workers , 4 N. L. R. B. 679, enf 'd, N. L. R. B. v. Bile8-
Coleman Lumber Company, 98 F. (2d) 18 (C. C. A. 9).
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ner discriminating in regard to hire or tenure of employment or any
term or condition 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 rep-
resentatives of their own choosing, and to engage in concerted activ-
ities for the purposes of collective bargaining and other mutual aid
and protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Robert Campbell, Theodore Holmes, Nathaniel John-
son, Roosevelt Graves, Rose Mancuso, Lucille Martin, George Riley,
Mary Kovall, and Curtis Henderson immediate and full reinstatement
to their former or substantially equivalent positions, without prejudice
to their seniority and other rights and privileges;
(b) Make whole the said Robert Campbell, Theodore Holmes,
Nathaniel Johnson, Roosevelt Graves, Rose Mancuso, Lucille Martin,
George Riley, Mary Kovall, and Curtis Henderson for any loss of pay
they have suffered by reason of their discharges : by payment to Robert
Campbell, Theodore Holmes, Nathaniel Johnson, Roosevelt Graves,
Rose Mancuso, Lucille Martin, and George Riley of a sum of money
equal to the amount which each of them would normally have earned
as wages from the date of his or her discharge to the date of the offer
of reinstatement; and by payment to Mary Kovall and Curtis Hen-
derson of a sum of money equal to the amount which he or she would
normally have earned from the date of his or her discharge to the date
of the Intermediate Report and from the date of this Order to the
date of the offer of reinstatement; less net earnings 117 during said
periods; deducting, however, from the amount otherwise due each of
them, monies received by them during said periods for work performed.
on Federal, State, county, municipal, or other work-relief projects,
and pay over the amounts 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;
(c) Upon application, offer to its employees who went on strike,
and each of them, aside from those listed in paragraphs 2 (a) and (b)
above, immediate and full reinstatement to their former or substan-
tially equivalent positions, without prejudice to their seniority or other
rights or privileges, in the manner set forth in the section entitled "The
remedy" above, placing those employees for whom employment is not
immediately available upon a preferential list in the manner set forth
in said section, and thereafter, in said manner, offer them employment
37 See footnote 34, supra.
RESNICK CLEANERS & DYERS, INC. 721
a;s it becomes available; making whole the said employees, and each of
tl iem, for any loss they may suffer by reason of any refusal of their
al iplication for reinstatement as in this paragraph provided, by pay-
m' ent to each of them, respectively, of a sum of money equal to that
w hich each would normally have earned as wages during the period
fr om a date 5 days after the date of application to the date of offer
o'f reinstatement or placement upon a preferential list, as set forth
al)ove, less his net earnings 38 during said period; deducting, however,
from the amount otherwise due each of them, monies received by
each 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
s)npplied the funds for said work-relief projects;
(d) Post immediately in conspicuous places in the respondent's
plant, and maintain for a period of at least sixty (60) consecutive
days from the date of posting, notices to its employees stating: (1)
that the respondent will not engage in the conduct 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), and (c) of this Order; and (3) that the re-
spondent's employees are free to become or remain members of Inter-
national Association of Cleaning and Dye House Workers, Local
No. 9, and that the respondent will not discriminate against any em-
ployee because of membership or activity in that organization ;
(e) Notify the Regional Director for the Sixth Region in writing,
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed in so far as it alleges that the respondent has discriminated
in regard to the hire and tenure of employment of Hattie Bell Keene
and Harry Meredith.
MR. EDWIN S. SMITH, concurring in part and dissenting in part :
I concur in the entire decision except that part which holds that
Hattie Bell Keene was not discharged because of her union member-
ship or activity. She was discharged at the same time as the other
five pressers. Like them, she was told that she was being laid off until
further notice because of lack of work, although the defense of lack
of work was fully disproved at the hearing and apparently abandoned
by the respondent itself. For these reasons I believe that we should
find that Keene, like the other pressers, was discriminatorily dis-
charged.
88 See footnote 34, supra.