Pinaud, Inc.

National Labor Relations Board - Board Decisions

Jul 12, 1943

51 N.L.R.B. 235 (N.L.R.B. 1943)

In the Matter of PINAUD, INCORPORATED and MARY ROSEN
Case No. C-2561.=Decided July 12,1943
DECISION
AND
ORDER
On March 25, 1943, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent,
Pinaud, Incorporated; had engaged in and was engaging in unfair
labor practices and recommending that it cease aid desist therefrom
and take certain affirmative action as set out in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found
that the respondent had not engaged in certain other unfair labor
practices and recommended the dismissal thereof. Thereafter, the
respondent filed a memorandum excepting to the Intermediate Re-
port. Oral argument, in which the respondent participated, was
had before the Board on April 20, 1943. The Board has considered
the rulings of the Trial Examiner at the hearing and finds that no
prejudicial error was committed. The rulings are hereby affirmed.
The Board has considered the Intermediate Report, the exceptions,
and the entire record in the case and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner with the fol-
lowing modifications :
1. Upon Rosen's refusal to work as a strikebreaker on September
23, 1942, she was summoned to the personnel office, given her wages,
including a week's severance pay, and without anything more, was,
in effect, directed to leave the premises. The following day she filed
the charges instituting this proceeding. The strike was terminated
on October 12 and all the other employees returned to work. So far
as the record shows, Rosen did not apply for reinstatement with the
other strikers.
The respondent was not required on September 23 to permit Rosen
to remain on the job and at the same time to refuse to do its lawful
bidding.' Under the circumstances presented on that date the re-
spondent was privileged, as an incident of an employer's right to
replace economic strikers, to give Rosen an election either to work as
I Mt. Clemens Pottery Company, etc, 46 N L. R. B. 714.
51 N. L. R. B., No. 53.
235
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
instructed or not to work and leave the premises. However, it was
not permitted to discharge or otherwise to discriminate against her
for her participation in the strike. By its conduct, however, the
i espondent plainly indicated to Rosen that it would have been futile
for her to apply for reemployment at the end of the strike. We
find, therefore, that the respondent refused to give Rosen further
employment on and after October 12; 1942, because she engaged in
concerted activities, and we shall order the respondent to reinstate her
with back pay as of that date.
2. The respondent contended that its conduct as to Rosen did not
discourage membership in the Union and that, therefore, the com-
plaint should be dismissed. The Trial Examiner properly rejected
this contention. Any conduct which is directed against concerted or
union activity intrinsically and necessarily discourages membership
in labor organizations and also discourages participation in the con-
certed activities guaranteed employees under Section 7 of the Act.
We find that the respondent's conduct toward Rosen manifestly con-
stituted discouragement of union membership and the right "to en-
gage in concerted activities" not only, of Rosen but of all her fellow
employees.2
ORDER
Upon the entire'record in the case, and pursuant to Section 10
(c) of the National Labor Relations Act, the National Labor Rela-
tions Board hereby orders that the respondent, Pinaud, Incorporated,
New York City, its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Discharging, refusing to reinstate, or in any other manner
discriminating in regard to the hire and tenure of employment of its
employees, because they engaged in concerted activities or other
mutual aid or protection, and thereby discouraging membership in
a labor organization;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid
or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which will effectuate the
policies of the Act :
(a) Offer to Mary Rosen immediate and full reinstatement to her
former or substantially equivalent position, without prejudice to her
seniority and other rights and privileges;
2 Matter of Walt Disney Productions, 48 N. L. R., B. 892.
PINAUD, INCORPORATED 237
(b) Make whole Mary Rosen for any loss of pay she may have
suffered by reason of the respondent 's discrimination against her, by
payment to her of a sum of money equal to that which she normally
would have earned as wages from October 12, 1942 , to the date of
respondent 's offer of reinstatement , less her net earnings during said
period;
(c) Immediately post in conspicuous places throughout its 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 or-
dered to cease and desist in paragraphs 1 (a) and (b) hereof; (2)
that the respondent will take the affirmative action set forth in
paragraphs 2 (a) and ( b) hereof; and ( 3) that the respondent's
employees are free to become or remain members of Cosmetic, Soap &
Perfumery Workers, Local No. 20642 , A. F. of L., or any other labor
organization, or to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection , and that
the respondent will not discriminate against any employee because
of membership in or activity on behalf of that organization, or
because he engaged in concerted activity for the purpose of collective
bargaining or other mutual aid or protection;
(d) Notify the Regional Director for the Second Region in writing
within ten ( 10) days frgm the date of this Order what steps the
respondent has taken to comply herewith.
CHAIRMAN Miraas ; concurring in part and dissenting in part :
I agree that the respondent , by its conduct towards Rosen, plainly
indicated a purpose to deprive her of her normal expectancy of reem-
ployment and thereby rendered it futile for her to apply for reinstate-
ment on October 12, the date of the termination of the strike. And, I
concur in the finding that the respondent refused to give Rosen further
employment on and after that date because of her concerted activity.
I would find, however , as did the Trial Examiner, that the discrimi-
nation against Rosen first occured on September 23, the date on which
she was admittedly discharged . Prior to that date Rosen had en-
deavored to maintain a neutral position with respect to the labor dis-
pute existing at the plant . She had performed her normal duties in
it department not involved in the controversy and remained aloof from
the strike . On September 23, however , the respondent ordered her to
help perform the work of the strikers , thus attempting to force Rosen
to abandon her neutrality and align herself against the strikers. This
Rosen refused to do and was immediately discharged . Whether
Rosen's conduct in the matter is viewed as placing her in the status of
a striker or as a further manifestation of her resolution to remain
neutral , I consider her attitude in this regard as fully consonant with
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the purposes of the Act in that it tends to localize labor disputes and
prevent them from spreading to employees not directly and originally
involved. Consequently I believe that the policies of the Act require
that an employee who seeks to remain neutral during a strike shall be
permitted to do so free from coercion and discrimination by the em-
ployer. Here coercion and discrimination of the most drastic kind
was imposed upon Rosen because of her refusal to perform the work
of a striker. Accordingly, I would find that she was discriminatorily
discharged on September 23 and would order her reinstated with back
pay from that date.
INTERMEDIATE REPORT
Mr. Sidney Reitman, for the Board.
Proskauer, Rose, Koetz & Mendelsohn, by Mr. Nathaniel H. Janes, of New
York, N. Y., for the respondent.
STATEMENT OF THE CASE
Upon a charge duly filed on September 24, 1942, by Mary Rosen, an individual,
herein called Rosen, the National Labor Relations Board, herein called the
Board, by its Regional Director for the Second Region (New York, New York),
issued its comvplaint dated February 17, 1943, against Pinaud, Incorporated,
herein called the respondent, alleging that the respondent had engaged in and
was engaging in unfair labor practices affecting commence within the meaning
of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Rela-
tions Act, 49 Stat. 449, herein called the Act. Copies of the complaint, together
with notice of hearing thereon, were duly served upon the respondent and Rosen.
With respect to the unfair labor practices, the complaint alleged in substance
that the respondent: (1) on or about September 23, 1942, discharged Mary
Rosen and thereafter refused to reinstate her, for the reason that she engaged
in concerted activities for the purposes of collective bargaining or other mutual
aid or protection, in that she refused to perform the work regularly performed
by employees who were then on strike; and (2) thereby, and by urging, per-
suading, threatening and warning its employees to refrain from assisting the
Cosmetic, Soap & Perfumery Workers, Local No. 20642, A. F. of L., interfered
with, restrained, and coerced its employees in the exercise of the rights guar-
anteed in Section 7 of the Act'
The respondent thereafter filed its answer, admitting the allegations of the
complaint with reference to the nature of its business but denying the com-
mission of any of the unfair labor practices alleged.
Pursuant to notice, a hearing was,held in New York, New York, on March 1
and 2, 1943, before the undersigned, Bernard Cushman, the Trial Examiner duly
designated by the Chief Trial Examiner. The Board and the respondent were
represented by counsel, and participated in the hearing. Full opportunity to
be heard, to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues was afforded all parties. At the close of the Board's case,
counsel for the respondent moved to dismiss the complaint. The motion was
denied.
I The complaint made reference to "the Union." The evidence shows that reference to
"the Union" was intended to designate Cosmetic, Soap & Perfumery workers, Local No.
20642, A. F. of L., herein called the Union.
PINAUD, INCORPORATED 239
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, Pinaud, Incorporated, is a New York Corporation, main-
taining its principal office and place of business in New York City, New York,
where it is engaged in the manufacture, sale and distribution of toilet goods
and related products. During the period from July 1, 1942, to February 1, 1943,
the respondent purchased more than $70,000 worth of raw materials for use
in the manufacture of its products. The principal proportion of the raw mate-
rials so purchased consisted of compounds and raw materials for toilet goods
and package accessories. Approximately 20 percent of these raw materials
was shipped from points outside the State of New York to the respondent's
place of business within the State of New York. During the same period, the
respondent sold finished products of a value of more than $300,000. Approxi-
mately 80 percent of these finished products was sold and shipped to points
outside the State of New York. The respondent admitted, for the purpose of
these proceedings, that it is engaged in commerce within the meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
Mary Rosen was hired by the respondent on October 6, 1941, as a perpetual
inventory or stock record clerk in the production manager's office. There were
three or four people employed in that office. Her duties involved the making
out of requisitions for supplies, and the making of entries in stock record books
with reference to the amount of stock received and breakage. In addition,
she was required to enter into the finished stock record book the amounts of
the various items manufactured and shipped by the respondent from day to day.
In April 1942, Rosen took over the duties of John Kaneeley, whom she had
previously assisted, and received, on April 6, 1942, an increase in salary in the
amount of $4.
On September 16, 1942, the Union went on strike. The employees involved
were those in the shipping department, and the factory production and mainte-
nance departments. Counsel for the Board stated that there was no con-
tention that the strike was caused by unfair labor practices. The strike termi-
nated on October 12, 1942.
Rosen testified that on September 21, Charles Dolimier, production manager
of the respondent, told her he was going to ship merchandise to fill certain
orders, and that, with the aid of Pierre Carpentier 2 and others, he would break
"this Goddam strike. Rosen testified further that on the morning of September
23 at about 9: 30, Dolimier stated to her, "Miss Rosen, you can be very helpful
to me in the shipping room." According to Rosen, Dolimier further said that
Rosen could be helpful in making out freight bills and bills of lading. Rosen
testified that she protested that she was unfamiliar with the work; that
Dolimier said that the work was easy and that he would show her how to carry
on the work ; that she answered that she would do any work in the office, but
would not go into the shipping room ; that Dolimier then stated, "Well, we
will see." Rosen further testified that about an hour later Dolimier called on
the telephone and asked her to come down to the shipping room immediately ;
that she protested that she was busy with the books at that time, but that
2 Sales manager of the respondent.
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dolimier stated, "I need you more than the books" ; that she then asked,
"What do you need me for?" and that Dolimier replied, "I need you here to help
me." According to Rosen, she then refused to come down and, when Dolimier
asked the reason for her refusal, said, "because I don't want to be a strike
breaker." Within the next fifteen minutes Rosen was called to the personnel
office and discharged. Emma Kullman 3 testified that she overhead the first
conversation between Rosen and Dolimier on the morning of September 23 in
the office of the production manager. Kullman testified that Dolimier stated
that he would expect Rosen to go down to the shipping department 'and help
him, and that Rosen said she could not go down in the shipping room because
she would not be a strike breaker. Killman testified further-that she overheard
Rosen's end of the subsequent telephone conversation, and that Rosen stated
that she would not go down to the shipping room "because that was the work
of the strikers."
With reference to the conversation of September 21, Dolimier denied that he
stated he would break "this Goddain strike". Dolimier testified, on the other
hand, that, with reference to the first conversation of September 23, he stated to
Rosen, "You could help me greatly accelerating the balancing of the books, because
I might need them". According to Dolimier, Rosen said she would get the
books ready as soon as possible. Dolimier testified further that, with reference
to the subsequent telephone conversation, he requested Rosen to bring the books
of finished stock down to the shipping room immediately, and that Rosen refused.
Pierre Carpentier testified that he was present in the shipping room at the time
of the telephone conversation between Dolimier and Rosen, that he overheard
.Dolimier's end of the conversation, and that Dolimier requested Rosen to bring
the finished stock book down to the shipping room at once, and that nothing else
was said.
While Dolimier testified, on direct examination, that the content of the tele-
phone conversation was limited to a request on his part that Rosen bring down
the finished stock books to the shipping room, and a refusal on the part of
Rosen, on cross-examination, he admitted that Rosen stated, in reply to his
request, that the books were not completely balanced, and that he had told Rosen
that she could finish balancing the books in the shipping room. When questioned
by counsel for the Board as to whether or not he had complained to Kullman
about the nature of her work, Dolimier first stated that "Probably I did," and
thereafter stated, "I did, certainly." Rosen had never been asked to work in the,
shipping room before.
In view of the contradictions in Dolimier's testimony, and in view of the
fact that the undersigned was unfavorably impressed by the lack of frankness
in his testimony, the undersigned does not credit his version of these conversa-
tions. Dolimier himself testified that the telephone conversation with Rosen
was greater in scope than that outlined in the testimony of Carpentier,' who
purported to relate the entire conversation.. The undersigned finds that Carpen-
tier was not a reliable witness, and does not credit his testimony.
Dolimier denied that he had requested Rosen to make out freight bills and bills
of lading in the shipping room. Both Rosen and Kullman testified to the
contrary. The undersigned has found that Dolimier was not a credible witness.
The record shows that, at this time, Carpentier was working on freight bills and
bills of lading in the shipping room. Such evidence is not, however, in the
opinion of the undersigned, incompatible with a resquest to Rosen to assume
those duties. The undersigned finds that the conversations took place substan-
tially as testified to by Rosen.
3 Kullman was hired in May 1942 to assist Rosen in the production manager 's office.
PIIAUD, INCORPORATED 241
The respondent contended that Rosen was inefficient in the performance of her
work . Aceording to Dolimier , Rosen failed to record promptly in the finished
stock book the amounts of finished stock on hand of each item manufactured or
distributed by the respondent . From 3 to 7 days after the shipment of goods,
invoices showing the amount . and nature of the items shipped reached the office
of the production department It was the duty of Kullman to make an entry in
the finished stock book of the amount of each item shipped , as reflected by the
invoices . It was the duty of Rosen , who was responsible in general for keeping
the finished stock book up to date, to record the balance of the finished stock on
hand after deducting the amount of the items shipped from the amount produced.
According to the testimony of Dolimier, during the months of June, July and
August, he had each month complained to Rosen about her neglect in keeping the
books posted and the balances recorded as soon as possible after receipt of the
invoices . Dolimier testified that in August 'or September , he had complained
to Mr. Reliant , treasurer of the Company , concerning Rosen's delinquency in
recording the balances on the finished stock books : that on each occasion he had
warned her that failure to perform this duty would result in her discharge ; that,
in the middle of September, he had again found that the finished stock books were
not up to date, and that he had told her that this statement would constitute a
final warning . Dolimier further testified , and the respondent contended, that
Rosen's alleged tardiness in this respect , plus her failure to obey his request to
bring the finished stock books down to the shipping room, constituted the causes
for her discharge on September 22
Rosen testified that ordinarily the books were balanced only at the end of each
month, that this had been the procedure during the course of her employment
with the Company, and that Dolimier had never criticized her for tardiness in
regard to the balancing of the finished stock books. She testified that, in fact,
sometime in July Dolimier had praised her for the quality and quantity of her
work Rosen testified further that Reliant had told her that when, due to
pressure of work, she was unable to balance the finished stock books promptly,
she should send the books up to the seventh floor, where the general office of the
Company was situated, in order that the comptometer operator might compute
the balances. The record shows that frequently invoices reflecting shipments
did not reach the office of the production manager for a period of from 3 to 7
days subsequent to the date of shipment. Dolimier admitted that, on occasion,
the books had been. sent to the seventh floor for balancing, but stated that this
was not ordinarily the procedure.
Before the books could be balanced the shipments of the various items were
recorded . One of Kullman 's duties was to post the amounts of the shipments
in the finished stock books. Kullman testified that frequently she was late in
getting the amounts of shipments posted, because of the pressure of other work,
and denied, although Dolimier testified to the contrary, that Dolimier had ever
complained that she was too slow in posting. As related above , 'Dolimier's
testimony in connection with complaints made to Kullman was not convincing.
Kuliman testified under supoena . The undersigned credits the testimony of
Kullman.
It is to be noted that , when Dolimier became production manager, he was
instrumental in obtaining a $5 raise for Rosen . During the 2 months' period prior
to the receipt of this raise, Dolimier had worked in the production office and
obviously had an opportunity to observe the quality of Rosen 's work. The
evidence is uncontradicted, and the undersigned finds that Rosen frequently
worked overtime during the period from May until the date of her discharge, and
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that this was the busiest season of the year for the respondent.4 Under all these
circumstances , the undersigned credits the testimony of Rosen and Kullman, and
finds that Rosen was not inefficient , and that , in any event, the alleged inefficiency
did not motivate the respondent in her discharge.
The respondent contends- that , in any event , it discharged Rosen because she
refused to perform work which was assigned to her, and that such refusal
constituted insubordination justifying her discharge . The question is thus
presented as to whether Rosen's assistance to the strikers, rendered through her
refusal to work, is protected activity within the meaning of-the Acts By her
refusal to perform the work of a striker Rosen, in that respect, joined the strike,
becoming in effect a partial strikers A strike or a partial strike is a form of
concerted activity that is protected under the Act. The discharge of Rosen for
engaging in such activity constituted a violation of Section 8 (3).7
The record shows that, since September 1, 1938, the Union has had annual
closed shop contracts with the respondent, and that a closed shop contract,
executed subsequent to the discharge, was in existence as of the time of the hear-
ing. The uncontradicted testimony shows further that every employee eligible
for membership in the Union was, in fact, a member of the Union as of the time
of the hearing. The respondent contends that on this state of the record, there
is a failure of proof that the discharge of Rosen discouraged membership in the
Union, and that consequently, the complaint must be dismissed. Such a conten-
tion is without merit. While the discouraging effect of the discharge may not
manifest itself immediately under these circumstances, the possibility that such
effects will be demonstrated in the future is not foreclosed Indeed, a discharge
which is directed against concerted or union activity per se discourages member-
ship in the labor organization involved.' As the Court stated in N. L. R. B. v.
John Englehorn & Sons (C. C. A. 3) decided March 1, 1943:
All that need be established to show a violation of Sec. 8 is conduct by an
employer which is defined therein as an unfair labor practice. That section
does not require proof that the proscribed conduct had its desired effect.'
4 Rosen testified without contradiction that shortly before the strike Dolimier told her
that the production office was shorthanded.
6 There is no evidence that Rosen was a member of the Union . Lack of membership
in the Union , or ineligibility for membership, is immaterial . Non-union members may
join sympathetically in the activity of a union in which they are not eligible for membership,
without relinquishing the protection afforded by the Act. See Matter of Club Troika, Inc.
and Hotel and Restaurant Employees Alliance, Local 781, et al., 2 N. L. It. B . 90, 94;
N. L. R. B. v. Bales-Coleman Lumber Co, 98 F. (2d) 18 (C. C. A. 9) enf'g Matter of Biles-
Coleman Lumber Company, 4 N. L. It. B 679. ,
B Matter of Harnischfeger Corporation and Amalgamated Association of Iron, Steel and
Tin Workers, 9 N. L. It. B. 676; Matter of Cudahy Packing Company and Local Union No.
60, United Packing House Workers of America, Packinghouse Workers Organizing Commit-
tee, 29 N L. It. B. 837, 868; Matter of Niles Fire Brick Company and United Brick Work-
ers, L. I. U. No. 198, 30 N L. It. B , 426; Rapid Roller Company v. N. L R B , 126 F. (2d)
452 (C . C. A. 7), remanding to adduce additional evidence in proceedings to enforce 33
N. L R B. 557.
i Rapid Roller Company V. N. L. R. B., 126 F . ( 2d) 452 (C. C. A 7 ), remanding to ad-
3uce additional evidence in proceedings to enforce 33 N. L. R. B. 557; Matter of Niles Fire
Brick Company, 30 N. L. R. B 426. _
8 The respondent cites Stonewall Cotton Mills v. N. L. R. B., 129 F. (2d) 629 (C. C. A.
5), Mod. 36, N L . R. B. 240, in support of its contention . That decision , so far as it is
material here, was modified by that Court on petition for rehearing in 129 F. (2d) 633.
9 Rapid Roller Company v. N. L R. B., 126 F. (2d) 452 (C. C. A. 7), remanding to
adduce additional evidence in proceedings to enforce 33 N. L. It. B. 557 ; N. L. R. B. v.
Aintree Corporation ( C. C. A 7 ), 132 F. ( 2d) 469, 11 LRR 385; see also N. L. R. B. v.
Baldioin Locomotive Works, 128 F. ( 2d) 39, 50 ( C. C. A. 3), enf'g 20 N. L . It. B. 1100.
PINAUD, INCORPORATED 243
It is clear and.the undersigned finds that Rosen was discharged because she
engaged in concerted activity for the purposes of collective bargaining and other
mutual aid and protection. By discharging Rosen for the aforesaid reasons, the
respondent has interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act, thereby engaging in
unfair labor practices within the meaning of Section 8 (1) of the Act. The un-
dersigned further finds that the respondent has discouraged membership in a
labor organization, and has discouraged concerted activity by its employees for
the purposes of collective bargaining and other mutual aid and protection, by
discriminating in regard to the hire and tenure of employment of Mary Rosen.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section II above, occurring in
connection with the operations of the respondent described in Section I above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
IV. THE REMEDY
Since it has been found that the respondent has engaged in certain unfair labor
practices, it will be recommended that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
It has been further found that the respondent discharged Mary Rosen because
she engaged in concerted activity for the purposes of collective bargaining or other
mutual aid and protection. It will therefore be recommended that the respond-
ent offer her immediate and full reinstatement to her former or substantially
equivalent position, without prejudice to her seniority and other rights and
privileges. It will be further recommended that the respondent make her whole
for any loss of pay she may have suffered by reason of the respondent's dis-
crimination against her, by payment to her of a sum of money equal to the
amount she would normally have earned as wages from the date of her discharge
to the date of the offer of reinstatement, less her net earnings 10 during said
period
No evidence was introduced to support the allegations of paragraph 7 of the
complaint. The undersigned will recommend that the complaint be dismissed,
insofar as it alleges that the respondent urged, persuaded, threatened and warned
its employees to refrain from assisting the Union.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. By discriminating in regard to the hire and tenure of employment of Mary
Rosen because she engaged in concerted activities for the purposes of collective
bargaining or other mutual aid and protection, thereby discouraging membership
i0 By "net earnings" is meant earnings less expenses, such as for transportation,' room,
and board, incurred by an employee in connection with obtaining work and working else-
v here than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere. See Matter
of Crossett Lumber Company, and United Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies
received for work performed upon Federal, State, county, municipal, or other work-relief
projects shall be considered as earnings. See Republic Steel Corporation v. N. L. R. B.,
311 U. S. 7.
540612-44-vol. 51-17
244 DECISIONS OF NATIONAL-LABOR RELATIONS BOARD
in a labor organization , the respondent has engaged in and , is engaging in unfair
labor practices within the meaning of Section 8 (3) of the Act.
2. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices, within the meaning of Section 8 (1)
of the Act.
3. The respondent has not urged, persuaded, threatened or warned its em-
ployees to refrain from assisting Cosmetic, Soap & Perfumery Workers, Local
No. 20642, A. F. of L.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7)' of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the respondent, Pinaud, Incorporated, New York,
New York, its officers, agents, successors and assigns shall :
1. Cease and desist from :
(a) Discharging, refusing to reinstate, or in any other manner discriminating
in regard to the hire and tenure of employment of its employees, because they
engaged in concerted activities or other mutual aid and protection, and thereby
discouraging membership in a labor organization ;
(b) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the rights to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of collective bar-
gaining or'other mutual aid and protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will ef-
fectuate the policies of the Act :
(a) Offer to Mary Rosen immediate and full reinstatement to her former or
substantially equivalent position, without, prejudice to her seniority and other
rights and privileges ;
(b) Make whole Mary Rosen for any loss of pay she may have suffered by
reason of the respondent's discrimination against her, by payment to her of a
sum of money equal to that which she normally would have earned as wages
from the date of her illegal discharge to the date of respondent's offer of rein-
statement, less her net earnings 11 during said period.
(c) Immediately post in conspicuous places throughout its plant, and maintaiir
for a period of at least sixty (60) consecutive clays from the date of posting,
notices to its employees stating: (1) that the respondent will not engage in the
conduct from which it is recommended that it cease and desist in paragraph I
(a) and (b) of these recommendations; (2) that the respondent will take the
affirmative action set forth in paragraph 2 (a) and (b) of these recommenda-
tions; and (3) that the respondent's employees are free to become or remain
members of Cosmetic, Soap & Perfumery Workers, Local No. 20642, A. F. of L.,
or any other labor organization, or to engage in concerted activities for the pur-
poses of collective bargaining or other mutual aid and protection, and that the
respondent will not discriminate against any employee because of membership,
in or activity on behalf of that organization, or because he engaged in concerted
activity for the purposes of collective bargaining or other mutual aid or pro-
tection ;
See footnote 10, supra
PINAUD, INCORPORATED 245
(d ), Notify the Regional Director for the Second Region in writing within ten
(10) days from the date of the receipt of this Intermediate Report what steps
the respondent has taken to comply therewith.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report the respondent notifies said Regional Direc-
tor in writing that it will comply with the foregoing recommendations, the Na-
tional Labor Relations Board issue an order requiring the respondent to take the
action aforesaid.
It is further recommended that paragraph 7 of the complaint be dismissed.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 2-as amended, effective October 28,
1942-any party may within fifteen (15) days from the date of the entry of the
order transferring the case to the Board, pursuant to Section 32 of Article II of
said Rules and Regulations, file with the Board, Shoreham Building, Washington,
D. C., an original and four copies of a statement in writing setting forth such
exceptions to the Intermediate Report or to any other part of the record or pro-
ceeding (including rulings upon all motions or objections) as he relies upon, to-
gether with the original and four copies of a brief in support thereof. As further
provided in said Section 33, should any party desire permission to argue orally
before the Board, request therefor must be made in writing to the Board within
ten (10) days from the date of the order transferring the case to the Board.
BERNARD CUSHMAN,
Trial Examiner.
Dated March 25, 1943.