National Mineral Co.

In the Matter Of NATIONAL MINERAL COMPANY and CHROME FURNI- TURE, HANDLERS AND MISCELLANEOUS CRAFTS UNION No. 658, AFFILIATED WITH UPHOLSTERERS' INTERNATIONAL UNION OF NORTH AMERICA, AFFILIATED WITH THE AMERICAN ' FEDERATION OF LABOR Case No. C-1852.-Decided February 28, 1942 Jurisdiction : beauty parlor equipment and supply manufacturing industry. Unfair Labor Practices Interference, Restraint, and Coercion. carrying on "an unremitting campaign" against unionization by: ordering union organizers away from the streets ,near the plant; engaging in surveillance upon the organizers; issuing anti- union warnings and threats and in one case purporting to discharge one employee for joining union; improper solicitation of strikers to return to work; maintaining surveillance over the polling place during a Board election. Discrimination: discharge for union membership and activity; minor error com- mitted by employee as justification for discharge used to conceal true reason. Collective Bargaining- majority established by prior certification-refusal to bargain collectively-contention of small number of participants in Board election, shifting position of union with respect to unit for which it demanded recognition, and union's alleged illegal course of conduct, held no justification for refusal to bargain collectively. Remedial Orders: order to bargain collectively; reinstatement and back pay awarded. Evidence : notice taken of Illinois Social Security Regulations; testimony by employees that respondent's acts did not intimidate them from voting held entitled to little or no weight in view of respondent's anti-union bias; presump- tion as to assent of non-participants in elections to will of majority. Practice and Procedure : disallowance by Trial Examiner of respondent's attempt to cross examine witnesses concerning matters as to which it had no knowledge and could not have predicated its anti-union activities upon, held proper; respondent's request for dismissal of complaint because of alleged lack- of authorization of person filing charges, denied; rulings of Trial Examiner denying respondent's requests for continuances held not to have been unreasonable or arbitrary, of to constitute an abuse of discretion, and not to have denied respondent a full and fair hearing. Unit Appropriate, for Collective Bargaining : hourly paid production employees, excluding office, maintenance, and sales employees, carpenters, firemen, engi- neers, foremen, and supervisors. Mr. Jack G. Evans, for the Board. Mr. Adolph A. Rubinson, of Chicago, Ill., for the respondent. -Mr. Joseph M. Jacobs and Mr. Phillip D. Goodman, of Chicago, Ill., for the Union. Mr. George Turitz, of counsel to the Board. 39 N. L. R. B., No. 61. - 344 r NATIONAL MINERAL COMPANY DECISION AND ORDER STATEMENT OF THE CASE 345, Upon charges and amended- charges duly filed by Chrome Furniture, Handlers and Miscellaneous Crafts Union No. 658, affiliated with Upholsterers' International Union of North America, affiliated with the American Federation of Labor, herein called -the Union, and by Beauticians Supplies and Cosmetic Workers Union Local 21107, affiliated with the American Federation of Labor, herein called Local No. 21107,1 the National Labor Relations Board, herein called the Board, by the Regional Director for the Thirteenth Region (Chicago, Illinois), issued its complaint dated March 8, 1941, against National Mineral Company, Chicago, Illinois, herein called the' respondent, alleging that the respondent had engaged in and was engaging in un- fair labor practices affecting commerce, within the meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, ac- companied by notice of hearing thereon and copies of the fourth amended charge, were duly served upon the respondent and the Union. At the hearing the complaint was amended in certain respects. With respect to the unfair labor practices the complaint, as amended, alleged in substance that the respondent (1) on or about October 2, 1940, and at all times thereafter refused and failed to bargain collec- tively with the Union as the exclusive representative of -employees of the respondent in an appropriate unit, although on and before, and at all times since said date the Union was the exclusive representative of such employees, and had been certified as such by the Board; (2) at various times since on or about November 20, 1939, interrogated and kept its employees under surveillance for the purpose of ascertaining their union affiliations and activities, made derogatory statements to them concerning the Union and other labor organizations,' and ad- vised, urged, and warned them to- refrain from joining or assisting the Union or any other labor organization; (3) discharged Albert Labiak because of his membership in and activities on behalf of the Union and other labor organizations; (4) refused and failed to submit a pay roll for use by agents of the Board in conducting an election among employees of the repsondent or to permit notices of the election to be posted in its plant, kept the polling place under surveillance I The original charge and the amended charge were filed by Local No. 21107 on January 24 and March 19, 1940, respectively ; the second , third, and fourth amended charges were filed by the Union on July 10 and October 4, 1940, and February 3, 1941, respectively. I The complaint as amended reads "or any other labor organizations ," but it is clear that it was intended to have the meaning set forth above. 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD during the election, observing employees who entered and left said polling place, and interrogated employees before, during, and after said election concerning the conduct thereof, thereby and by other acts interfering with and obstructing the conduct of said election and discouraging employees in exercising their right to vote; and (5) by the foregoing and other acts interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of- the Act. On March 20, 1941, the respondent filed its answer and amended answer wherein it denied the allegations of the complaint with respect to the unfair labor practices and alleged, among other things, that the Union's "negotiations and proceedings . . . were not in good faith," and "that the present proceeding is not authorized by" the Union.' Pursuant to notice a hearing was held at Chicago, Illinois, from March 20 to 31, 1941, before Thomas H. Kennedy, and from April 7 to-10, 1941, before R. N. Denham, the Trial Examiners duly desig- nated by the Chief Trial Examiner. 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 evidence bearing on the issues was afforded all parties. On March 27, 1941, during the course of the hearing, counsel for the Board moved to amend the .complaint by adding the allegation above referred to with respect to the discharge of Labiak, which motion was consented to by the respondent and granted.' On April 7, 1941, the respondent moved to strike said amendment on the ground that no charge had been filed upon which the Board could properly base such an allegation, which motion was denied. At -the close of the Board's case the respondent moved to dismiss the complaint with respect to the alleged refusal to bargain, which motion was denied, and at the close of the entire case counsel for the Board moved to conform the pleadings to the proof, which motion was granted. During the course of the hearing the Trial Examiners made a number of other rulings, including rulings on- objections to the admission of evidence, on motions for adjournments, 7 At the hearing referred to below the respondent attempted to show that the filing of the fourth amended charge was not authorized by the Union . The record shows that the fourth amended charge was filed on behalf of the Union by one Miller, then its financial secretary , treasurer, and business representative, and duly appointed by Upholsterers ' International Union of North America as organizer with authority to represent the ". . Union . . and its members in all business of the . . . Union , provided , and so long as such acts are in accordance with the laws of the . . . Union and the General Laws of the International Union . " Our attention has not been called to any provision of the "General Laws" of Upholsterers' International Union of North America or of the rules for local unions included therein indicating that or- ganizers were not authorized to file charges with the Board we find that Miller was authorized to file charges Moreover Article II, Section 1, of National Labor Relations Board Rules and Regulations-Series 2, as amended , provides that a charge may be made by "any person or labor organization " 4 Trial Examiner Kennedy ruled that the respondent would not be required to adduce evidence with respect to the amendment to the complaint until the expiration of 10 days from the date of such amend- ment The respondent opened its case on April 7, 1941 , which was 11 days after th9 amendment. NATIONAL MINERAL COMPANY , 347 and on other motions. On April 19, 1941, Trial Examiner Denham made an order granting in part the respondent's motion, filed with the Chief, Trial Examiner on April 15, 1941, pursuant to leave given at the hearing, to include in the record in this case certain parts of the transcript in Matter of National Mineral Company and Chrome Furniture, Handlers and Miscellaneous Crafts Union, Local No. 658 of the Upholsterers' International Union, affiliated with. the American Federation of Labor, successors to Beauticians' Supplies and Cosmetic Workers Union, Local 21107 (A. F.- of L.).5 The Board has reviewed all rulings of the Trial Examiners and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On April 16, 1941, the Board, acting pursuant to Article II, Section 36, of National Labor Relations Board Rules and Regulations- Series 2, as amended, ordered the proceeding transferred to and con- tinued before the Board for action pursuant to Article II, Section 37, of said Rules and Regulations. The Board further ordered that no Intermediate Report be issued by the Trial Examiners and, acting pursuant to Article II, Section 37 (c) of said Rules and Regulations, ordered that proposed findings of fact, proposed conclusions of law, and •a proposed order be issued, and that, pursuant to Article II, Section 37, of said Rules and Regulations, the parties would have the right to request oral argument and to file exceptions within 20 days and to file a brief with the Board within 30 days from' the date of said proposed findings, conclusions, and order. On December 19, 1941, the Board issued and duly served upon the parties its Proposed Findings of Fact, proposed Conclusions of Law, and Proposed Order. On January 7, 1942, the respondent requested oral argument, and on January 20, 1942, filed exceptions to said proposed findings, conclusions, and order. On January 22, 1942, pursuant to notice, a hearing was held at Washington, D. C., for the purposes of oral argument. The respondent and the Union were represented by counsel and participated in the hearing. The respondent asserts that it was prejudiced by Trial Examiner Denham's reversal of the•ruling of Trial Examiner Kennedy incorpo- rating into the record the entire record in the representation proceed- ing. Since the record in question is before us in the present proceed- ing, this ruling was not prejudicial.' The respondent also contends that it was deprived of a fair hearing. ! Case No R-1855 , 25 N. L R B 3, and 27 N L R B. 432. 6 Pittsburgh Plate Glass Company v. National Labor Relations Board et at , 313 U. S. 146, alf'g 113 F (2d) 698 (C. C A. 8) enforcing Matter of Pittsburgh Plate Glass Company and Federation of Flat Class Workers of Amersca, a ffiliated with C. I 0 , 15 N L R. B 515 The Court said at page 157 It is entirely proper for the Board to utilize its knowledge of the desires of the workers obtained in the prior unit proceeding , since both petitioners , the employer and the Crystal City Union, were parties to that prior proceeding . The unit proceeding and this complaint on unfair labor practices are really one. Consequently the refusal to admit further evidence of the attitude of the workers is unimportant. Moreover, the respondent was permitted to have explicitly incorporated in the record such portions of the record in the representation proceeding as were material to the present proceeding r 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because Trial Examiner Denham-on several occasions refused con- tinuances, varying in amount, requested by the respondent in order to afford it additional time within which to prepare its case.' We are of the opinion, however, that the respondent's contention i's without- merit.' The complaint, noticing the bearing for March 20, 1941, was served on -March 8, and the Board's case was introduced from March 21 to 28. On several occasions during the Board's case Trial Examiner Kennedy recessed the hearing in order to permit counsel for the respondent to interview the Board's witnesses with a view to preparing and presenting the respondent's defense.- After the close of the Board's case the hearing was adjourned for 10 days and it then con- tinued for 4 additional days before Trial Examiner Denham. The evidence introduced by the Board as to the respondent's alleged unfair labor practices was specific and related to activities of officials and supervisory employees still employed by the respondent, who, as far as the record shows, were available to testify in refutation of the Board's evidence, if it was untrue. The respondent, however, made little attempt to refute the Board's evidence. On the last day of the hearing, in response to the respondent's request for an adjournment, Trial Examiner Denham recessed the bearing from 11 a. m. to 1 p. in. in, order to afford the respondent a further opportunity to produce its witnesses. The respondent's counsel returned to the hearing some time after 1 p. in., but offered no additional witnesses for reasons previously assigned and shortly thereafter the hearing was closed. We are of the-opinion that Trial Examiner Denham's rulings on the respondent's motions for -a continuance were not, in the circumstances of this case, unreasonable or arbitrary and did not represent an abuse of the discretion committed to him, but, on the contrary, were con- sonant with the maintenance of orderly procedure and of the reason- ably expeditious conduct of the hearing, and that the respondent was not denied a full and fair hearing.' 7 When the Board rested its case on March 28 the respondent applied for a 3-week adjournment. The case was adjourned to March 31, on which date it was further adjourned to April 7. No testimony was taken on March 31, and proceedings that day were confined to two '/-hour sessions. On April 7, immedi- ately after the opening of the first session presided over by Trial Exathmer Denham, counsel for the respond- ent requested a further adjournment, which was denied Thereafter, during the course of the hearing before Trial Examiner Denham counsel for the respondent made several further requests for an adjournment, which were likewise denied The respondent's attorney stated that, guided by certain rulings of Trial Examiner Kennedy and by certain evidence introduced by the Board with respect to the respondent's early labor history, he devoted the 10-day continuance to the preparation of evidence with respect to such early labor history Shortly after the opening of the respondent's case, however, Trial Examiner Denham struck out as immaterial evidence of such history introduced during the Board's case and excluded such evidence offered by the respondent. Counsel for the respondent claimed, in seeking further adjournments, that he was unprepared to proceed with other defenses. 8 It is significant, we believe, that, as stated above, the respondent requested an adjournment immediately after the opening of the first session presided over by Trial Examiner Denham and even before he had made any rulings. - 9 See National Labor Relations Board v Algoma Plywood and Veneer Company, 121 F. (2d) 602 (C C A. 7), setting aside, on other grounds, Matter of Algoma Plywood and Veneer Company and Local 1521, Ln,ted Brotherhood of Carpenters and Joiners of America, A. F. L , 26 N L R. B. 975, Franklin v South Caro- lana, 218 U. S. 161, 168, Samples v. Laded States, 121 F. (2d) 263, 266 (C. C. A. 5) - NATIONAL MINERAL COMPANY 349 The Board has considered the respondent's exceptions and, except as they are consistent with the findings, conclusions, and order below, finds them without merit. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT National Mineral Company is an Illinois corporation having its principal office and plant at Chicago, Illinois. It is engaged in the designing, manufacture, sale, and distribution of-chrome furniture, hair dryers, permanent-wave machines, beauty-parlor equipment, cosmetics, and other supplies. It employs about 650 persons. From May 1, 1939,` to and including April 30, 1940, the value of finished products manufactured by the respondent was substantially in excess of $250,000. Approximately 85 percent of these products were sold by the respondent and shipped from its plant in Chicago to purchasers and users outside Illinois. During the same period the respondent purchased raw materials, consisting of, steel tubing, ply- wood, leatherette, bottles, -oil, chemicals, and other materials and supplies, valued at substantially in excess of $125,000. Approxi- mately 47 percent of these raw materials and supplies were purchased by the respondent and transported from points outside Illinois to its plant in Chicago. II. THE ORGANIZATIONS INVOLVED Chrome Furniture, Handlers and Miscellaneous Crafts Union No. 658, affiliated with Upholsterers' International Union of North America, affiliated with the American Federation of Labor, is a labor organization admitting to membership employees of the respondent. Beauticians Supplies and Cosmetic Workers Union Local 21107, affiliated with the American Federation of Labor, was a labor organi- zation admitting to membership employees of the respondent'i° III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion 1. Chronology of events (a) Events prior to the strike of February 12, 1940 Between the early part of 1937 and the latter part of 1939 one Michael O'Nesta conducted organizational activities among the re- spondent's employees on behalf of Local No. 21107, and from time to time conferred with the respondent regarding possible recognition 10 See footnote 22 infra. 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of that organization as bargaining agent of the employees. On May 26, 1939, Local No. 21107 entered into a stipulation with the respond- ent and " the Regional Director , pursuant to which, among other things, Local No. 21107 withdrew certain charges of unfair labor prac- tices theretofore filed. In about October or November 1939 Onesta introduced Harold Miller, financial secretary , treasurer, and business representative of Local No. 21107 , to the respondent as his assistant . In November 1939 Miller and several other organizers appeared on the street adjacent to the employees ' entrance of the respondent 's plant one morning and distributed literature and membership applications to the employees going to work . Tennyson, the employee in charge of the entrance , and Matthew, a superintendent with authority to dis- charge employees , ordered the organizers away from the plant , stating that they had no right to distribute literature or to be there, but apparently the organizers refused to leave. Tennyson thereupon instructed employees entering the plant not to accept the literature or, if they had already done .so, to throw it away. When the organizers appeared again at closing time that day and in the morning the next day, Tennyson stationed himself in a window above the doorway and observed them, while Matthew walked up and down on the sidewalk. On both occasions a police squad car occupied by policemen was parked near the entrance. - For several months the organizers conducted activities at the entrance to the respondent's plant each morning and evening. On one occasion Leona LeDonne , an employee , signed a membership application immediately outside the entrance and delivered it'to one of the organizers . When she entered the building Tennyson and Matthew asked her why she had signed the application , and, upon receiving no answer, ordered her to surrender her employees ' identifica- tion badge, an instruction equivalent to a lay-off. However, George Calloway, LeDonne's foreman, countermanded this order. There- after Tennyson compelled LeDonne to exhibit her identification badge almost every day when entering and leaving the plant, although previously, since he knew her, he had never imposed that requirement. At about that time Matthew criticised LeDonne for conversing with the union organizers too much and warned her to desist if she valued her employment. , The testimony upon which we base all the fore- going findings was undenied.ll The testimony is in conflict as to whether or not Tennyson was a supervisory employee.12 Irrespective of the supervisory or nonsuper- 11 Tne respondent asserted that it wished to adduce testimony contradicting some of the Board's evidence but that it required additional time to prepare its case. The denial of the respondent's requests for adjourn- ment is discussed above. - 12 One Board witness testified that Tennyson was "in charge of the maintenance men," but another described him as "some kind of a night watchman, sweeper or something" and testified that he was not a "boss." - NATIONAL MINERAL COMPANY 351 visory nature of-Tennyson's duties, it is clear that he was placed by the respondent in charge of the employees' entrance, and his activities in the course of controlling that entrance, therefore, appeared to have been authorized by the respondent. In addition, since his activities were to a large extent carried on in conjunction with Superintendent Matthew, a supervisory employee with power of discharge, there can be little doubt that they were in fact as well as appearance so author- ized, and we so find. Various other supervisory employees made statements and directed questions to employees concerning union activities during this period. James Zach, foreman of the upholstering department, inquired of Raymond Kwaiter, an upholsterer, if he had attended a union meet- ing, and upon receiving an affirmative reply, asked, "What kind of ballyhoo have they got now?" Thereafter Zach frequently expressed the opinion to Kwaiter that the latter was a fool to join an organiza- tion, and in the early part of February 1940 told him that Local No. 21107 "would never get in there," that the respondent "had an ace in the hole whereby even if it came to a pass of any kind that no Union would get in," and that Local No. 21107 was "fighting a losing battle." During January 1940 Jeanne Burke, forewoman of the powder room, approached employees at work in her department to inquire if they were going or had gone to union meetings. On one occasion, receiving an affirmative reply, she asked if the employees were not satisfied with their wages and working conditions, and warned them that if they "knew what was good" for them, they "wouldn't go to meetings." On another occasion she told an employee who admitted having attended a certain meeting 13 that her "talk . . . was all right, because they had all the names up at the office." Another employee who had been to the meeting,14 when asked by Burke about her- attendance, "just put her head down and said she didn't know." Burke told Loretta Podalak, who also had admitted attending meet- ings, that she did not see why Podalak was doing so, that nothing would come of them, and that if Podalak continued, "they were going to make it pretty tough" for her. The testimony upon which we base the foregoing findings concerning Zach and Burke was also undenied. Albert Labiak, a former employee in the metallic assembly depart- ment, who joined Local No. 21107 in about October 1939 and attended practically all meetings of the organization, testified that in the fall of 1939 his foreman, Calloway, asked him if the union organizers were bothering him; that Calloway asked him about the union meetings on the day following each meeting; and that on one such occasion Labiak replied that Calloway knew more about the matter than Labiak. Calloway denied having discussed the-meetings with Labiak or having 13 This employee was Clara Sypniewski. 34 This employee was Mary Venezio. 448105-42-vol. 39-24 352 ' DECISIONS,OF NATIONAL LABOR RELATIONS BOARD questioned him about them, but upon a consideration of all the testi- mony in the case we accept Labiak's testimony." (b) The strike and the events following the strike On February 8, 1940, the respondent informed Miller -that it refused Local No. 21107's request for exclusive recognition and would not consent to an election to determine the question, but that any election would have to be ordered by the Board. On Monday, Feb- ruary 12, Local No. 21107 called a strike. A substantial number of employees struck 'B and the plant was picketed. On Wednesday, February 14, the non-striking employees, while at work, were requested by the respondent through its comptroller, its personnel director, and other supervisory employees, to sign the following statement: - Police Department, Mr. Fee and to all Whom it May Concern: Gentlemen: We are employees of the National Mineral Company and do not wish to be molested while walking to and from work or at home. We are satisfied with the hours and wages and conditions of labor of the National Mineral Company and its policies regarding raises and promotions. We do not wish .work to be stopped while a dispute is going on with certain organizers. The Company has never told us to join or not to join any Union, nor has the company until this time spoken to us concerning the foregoing matters. We understand that we are not required to sign this statement nor join or refrain from joining any Union as a condition to -keep our jobs. Meanwhile the individual striking employees, including the mem- bers of Local No. 21107, were being frequently solicited by officials and other supervisory employees of the respondent to return to work.'' Most of the soliciting was directed to strikers who were picketing or were gathered near the plant, but in some cases they were approached at their homes. A number of the supervisors attempted to impress upon the strikers that their action in striking was foolish and hazard- ous, making remarks such as: "Get wise to yourself, kid, and come back to work . . . you stay out there long enough, you will either I6 We note in this connection that counsel for the respondent commented , with reference to Labiak's testimony on another point, "Now, you heard the witness testify and he is trying to recollect correctly, and I think he is being fair-minded about it . Ii Gerald Gidwitz, the respondent 's secretary -treasurer, and in charge of plant production and personnel, testified that about one-third of the employees struck. 17 Among those who conducted such solicitation were Gidwitz , Calloway, Matthew. and Grant , a chemist, in charge of the powder room NATIONAL MINERAL COMPANY 353 starve or lose your work"; and "if . . . [the pickets] were smart . . . [they] wouldn't get . . . [their] fur wet" and ". . . I am giving. you your last chance to go back to work . . . What means more to you, your check or a couple of Union men?" The evidence that these statements were made was uncontradicted . On Wednesday, Feb- ruary 14, 1940 , the respondent distributed a letter among the strikers in which it stated that the respondent was "employing help to fill out its working force," that it did not wish to fill out its force before find- ing out whether tion-working employees desired "to return to their jobs," that it was not concerned with whether or not employees were, union members, that persons who "voluntarily walked out" might return to work whether or not they were union members, that the respondent would assume that persons not returning by the end of the week did not intend to return to work, and that the respondent would act accordingly. - The next day, which was the day on which the employees' pay for the previous week was due , the respondent informed the strikers that to receive their pay they would have to sign the following statement: FOR THE PURPOSE OF NOTICE UNDER REGULATION 14-17 of the ILLINOIS SOCIAL SECURITY REGULATION To------- ------------------------------------------ Do you wish your employment considered ended'? Yes q No q Clock No. ------ Name: ----------------------- --------- Sign here- Many employees refused to sign the statement that day but subse- quently, upon Miller's advice, they did so and were paid. On Friday , February 16, the respondent sent a second letter to the striking employees. In this letter the respondent stated: "If the person to whom we are directing this letter voluntarily refuses to return to work by Monday , we must consider his actions as desiring to end his employment with us and we, will obtain someone to fill either his or her present job." On Monday, February 19, strikers began to return to work and at a conference that day, attended by representatives of the respondent, Local No. 21107 , the Board's Regional Office, and various American Federation of Labor unions, an agreement was reached terminating 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the strike. The remaining strikers returned to work the following day, and none was denied employment.18 Immediately following the termination of the strike Gidwitz went to the various sections of the plant and addressed the employees: He stated, among other things, that the respondent was uninterested in the employees' membership or non-membership in Local No. 21107 and would treat all employees equally regardless of whether or not they had struck. That week the respondent issued a letter to its employees in which, among other things, it thanked the non-strikers for their "understanding of the company's problems," assured the strikers that they were welcome back and would not be discriminated against, expressed regret "that there has been any cause whatsoever which made it necessary for anyone to have lost any time from their employment," and gave assurance that all employees were to be considered permanent em- ployees. The letter also stated, near the close: Let us all remember that the only "ism" in which we are in- terested is that of Americanism and be grateful for the oppor- tunity which each one of us in this country has been afforded, and in the one country where opportunity, initiative, and willing- ness to get ahead carries with it no discrimination and no re- striction." Notwithstanding the respondent's various protestations of dis- interest in the employees' union membership, its officials and super- visory employees continued after the strike to manifest to the employees hostility to Local No. 21107. Burke, forewoman of the powder room, and Roder, a foreman, frequently warned employees not to engage in "union talk." A plant rule forbade employees to converse during their work, but the rule was not usually enforced, and the warnings given related only to "union talk." Gidwitz asked LeDonne why she "was in the Union," why she "stuck so much for it," "what was Mr. Miller to her," and whether she had "anything to do with the Union." He inquired of her also as to events at union meetings and asked specifically what Miller had said, stating that Local No. 21107 was making'many false statements and that he desired evidence of what was said about the respondent at the meetings. LeDonne was under the impression that Miller claimed that Local No. 21107 had been granted exclusive recognition, and she so informed Gidwitz. Our Is Counsel for the Union introduced evidence tending to show that some striking employees , on returning to work, were transferred to more disagreeable jobs formerly held by non -strikers, who were given the strikers' positions We do not think that this alleged discrimination was intended to be covered by the complaint or that the question was adequately litigated. We therefore make no finding with respect thereto 11 The letter also stated that the 75 new employees hired during the strike were needed because of a seasonal increase in sales and that preparation for additional employees had been made "the weekend before the disturbance"; invited suggestions for improvements , promising to pass savings on to the employees, and expressed the hope that courses for the employees in shop methods and administration might be instituted. NATIONAL MINERAL COMPANY 355 findings with respect to the foregoing actions of Burke, Roder, and Gidwitz are based upon uncontradicted evidence. Foreman Calloway continued to ask Labiak about union meetings and questioned him about the number of persons attending and what progress was being made. Calloway stated that Local No. 21107 "didn't stand a chance of getting in, they were just out to get our dues, that the whole thing was all over . . ." At the hearing Calloway denied having made such inquiry or statement but upon considering all the testimony in the case, we do not credit his denial.20 On Feb- ruary 23 1940, during working hours, Zackover, an employee in the upholstering department who had not picketed during the strike and had returned to work the day before the end of the strike, polled the employees in that department as to their "stand on this Union busi- ness," recording the results. This was in the presence of, and after consultation with, Foreman Zach; 21 and immediately after taking the poll Zackover went to the office and handed a paper to Gidwitz. Raymond Kwaiter, an employee, who was watching the proceedings, was admonished by Zach: Put your nose in the cotton, Kwaiter, never mind what is going on around the shop. At about that time Zach advised Kwaiter, who was at work in his department, to - . . . forget all about fooling with the .Union now. All you do is hear a lot of talk from them and you can go up on a roof and hear just as much. Zach then stated, "as a personal friend," that Kwaiter would be dis- charged without notice if he" [got] . . . to walking from department to department and-mentioning the Union in the plant." Zach also stated: You _ are not so dumb . . . you could be treasurer of -the Union, and you can get away with the money as well as the next guy; and, referring to the loss of wages during the strike: You chump, just figure it out yourself, if you get a dime raise now it will take you two or three hundred hours to make up the loss that you had for one week. Zach suggested to Kwaiter that if the latter formed "a little club or association," that would "square" Kwaiter with Gidwitz. The testi- mony as to the taking of the poll and Zach's statements was undenied. Shortly after the strike there was posted on the respondent's bulletin board, immediately under notices concerning unemployment insur- 20 See footnote 15, supra. It The record shows that Zackovor conversed with Zach immediately prior to canvassing the employees. 356 DECISIONS OF-NATIONAL LABOR RELATIONS BOARD ante benefits, a cartoon depicting a man of unpleasing appearance carrying a sign reading: "We want the world with a picket fence around it, see?" Printed on the cartoon was the following inscription: DON'T be an ugly dissatisfied workman. Be glad you have a good job and wages to keep yourself and family in comfort. The record contains no testimony that the respondent had notice of the cartoon's presence on the bulletin board. However, the record shows that the cartoon remained posted at least "a couple of days." We are convinced, and we find, that the respondent had notice of the presence of the cartoon on the bulletin board but failed to remove it forthwith. (c) The Board election On March 19, 1940, Local No. 21107 filed with the Regional Director a petition for investigation and certification of representatives of em- ployees of the respondent, and on April 29, 1940, the Union filed an amended petition " as successor to" Local No. 21107.22 After a hear- ing, participated in by the Union, and, under reservation of objections, by the respondent, the Board on July 2, 1940, directed an election .among employees-of the respondent found to constitute an appropriate unit.23 On July 20 the Regional Office informed the respondent that the election was set for July 23 and requested the respondent to desig- nate two non-supervisory employees to act as its observers at the elec- tion. The Board's representatives on several occasions requested the respondent to furnish"a copy of its pay roll for use in determining the eligibility of voters and on July 20 sent the respondent notices of the election to post in the plant. The respondent refused to permit the posting of the notices or to furnish the pay roll. A notice of election was posted outside the plant and a representative of the Board dis- tributed copies of the notice to the employees as they entered, but none was posted in the plant. On July 23 the respondent applied to the Federal District Court for a temporary injunction restraining the Board from holding the election and for other relief. After a bearing that day application for the temporary injunction was forthwith denied.24 The election was held, as scheduled, on July 23, `1940,- at a house immediately across the street from the plant and within 45 feet of the employees' entrance. Under protest the respondent sent 2 employees to act as observers at the election, the 2 persons originally designated by it having been rejected by the, Board's representatives as having 22 In Case No. R-1855 referred to above (see Statement of the Case), the Board stated that the Union's charter was issued on March 25, 1940 , upon application of the executive board of Local No. 21107, and that the charter of Local No 21107 was thereupon surrendered to the American Federationof Labor. 22 25 N L. It. B. 2. 24 The entire complaint was dismissed on September 18, 1940, on the respondent 's own motion. NATIONAL MINERAL COMPANY - 357 supervisory authority.25 Each voter was required to execute an affidavit establishing his eligibility to vote under the Direction of Election." The regular hours of work at the plant were 8 a. m. to 4:30 p. m., and the balloting was conducted between 7 and 8 a. in. and 4:30 and 7 p. m. A number of supervisory employees of the respondent gathered on the sidewalk near the employees' entrance at about 7 a. m. on the day of the election and throughout the balloting, both in the morning and in the afternoon, several of them were there, in a position to see which employees voted.27 The respondent attempted to show that it was not unusual for foremen to loiter near the plant entrance,in the morning before work. However, no showing was made that fore- men customarily appeared as early as they did on the day of the elec- tion or in as great numbers, or that any foreman was- present on that day for any reason except to observe the election. Moreover, except for the occasions referred to above, when Matthew and Tennyson observed the activities of the organizers for Local No. 21107, no evi- dence whatever was introduced that supervisory employees ever re- mained near the entrance after work. We find that the foremen loitered at the employees' entrance in order to observe who voted.28 Several witnesses testified that on the day of the election various employees stated that they did not vote because of fear-of the super- visory employees watching the polling place. Other witnesses testified that their own failure to vote was not due to the respondent's action.29 The record shows that the holding of the election was publicized and discussed among the employees at least throughout the day of the balloting, and no evidence was introduced showing that any eligible employee did not know of the election in time to participate. Only 83 employees voted in the election, 71- for the Union and 11 against the Union, and 1 ballot was challenged. According to the respondent, 453 employees were eligible to vote under the Direction of Election. On the day following the election, the Union issued a leaflet to the employees stating that it had won the election by a majority of 7 to 1. The leaflet also stated that the respondent had tried to stop the election -by obtaining an injunction but that the judge had "refused 25 One of the original designees was Kerber, the respondent's personnel director. m The Regional Director's Election Report in Case No R-1855 shows that the respondent provided its observers with a copy of the pay roll but refused to permit the Board's agents to use it in officially checking eligible voters At the request of the Board's agents the list was not used by the observers. 57 Among the supervisors in question were Roder, McKay, Calloway, Matthew, Zach, and Pastoni. The record shows that the president, personnel director, comptroller, and secretary-treasurer of the respond- ent were aware of these activities of the supervisory employees. 58 Cf. Matter of Bemis Bros. Bag Company and Textile Workers Union of America, etc., 28 N. L. R B 430 99 The reasons for not voting advanced by these witnesses were as follows Lack of interest; lack of desire to vote either way; ignorance of "what it was all about"; gratitude to the respondent for providing work and satisfaction with conditions ; "I guess I just didn't want to", and fear of loss of pay through a strike One witness surmised that employees did not vote because of opposition to the Union. The respondent stated that it desired to call all the employees in the plant to testify on this subject , but it was not per- mitted to do so. 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to stop the election and stated that the workers had a right to vote for the -Union and that he could see no reason why the Company should want to stop the election." The leaflet invited all employees to a meeting to set up committees "to take up the coming question as to hours-wages-seniority rights-closed shop agreement with National Mineral Co." That same day the respondent issued the following statement to the employees: - July 24, 1940 TO ALL EMPLOYEES: As again irresponsible people deliberately distort the facts and refuse to tell the truth, I find it necessary to again speak to you, through this means, as I feel that you are entitled to know the truth-not just one side of the story but the actual facts.' Out of the 475 people in the plant 453 were-entitled to vote under the Board's orders. Of these only 82 voted and only 71 voted to have representation through these peoples. (sic) 371 people did not vote despite all the efforts made by outsiders, regardless of the fairness of their method or the truth and despite all of these efforts to bring people to the poles (sic), 11 of those that did vote, voted against them. NOW WHAT DOES THIS VOTE MEAN? Certainly, a very poor showing, contrary to what was stated in a handbill which was passed out to you this morning on a total of 81 votes. If only 5 persons had voted that would still give the same story without the true facts, even though 448 persons had not voted with them. It was just such tactics as these and other false statements which lead (sic) us to request the Board to bold off the election until these same facts could be disclosed before the Board and before each of you. As an example of the tactics used by these people, which we have asked the Board to rule upon, in a certain letter addressed to us, dated November 30, 1939, they claim to represent a majority of the employees while their own testimony showed that they had only 10 dues-paying members and a few signed slips. Then also you will recall that two years prior to this time a similar claim was made by Michael O'Nesta and his claims were also shown to be unfounded. Other exaggerations were made in the petition for an election, filed with the Labor Board. Comparing this with the results of yesterday's election and the claims of these same people, we have no way of stopping these misrepresentations, but have brought them to the attention of the Labor Board. We have not disclosed these facts before as we-believe that they should be settled by the proper authorities and therefore we do not propose, to list all the unfair practices used by them, NATIONAL MINERAL COMPANY 359 NOW, WITH REFERENCE TO THE INJUNCTION BEFORE JUDGE HOLLY: (Another attempt to distort the truth). We appeared before Judge Holly because we do not believe that this election should have been held until all matters before the Board have been disposed of and for no other reason, and we do plan to bring these matters either before the Board or Judge Holly. This suit was not dismissed, but is still pending. It was tactics such as these that have prompted us to do this. Mr. Gidwitz, at a meeting held last February, stated that he was willing to speak to any employee, or to any person designated to speak for such employee. This still holds good today. I assured you some time ago that the Management would show no difference between members of a Union and non-members and that all would be treated alike. I further stated, and I now repeat, that should any employee discriminate against another employee, he or she will be immediately discharged, as all our employees must receive equal treatment and consideration, both by the Management and by their felloe (sic) workers. Your working conditions alid your pay will be dependent not upon what outsiders want, but upon your production and what you can earn for the Company, as well as yourselves. I trust that you and your family will have a most enjoyable vacation. - Louis P. Stein Louis P. STEIN, President. On July 25, the Union replied with another leaflet in which, among other things, it stated that the respondent's intimidation had kept employees from voting, and accused the respondent of having broken an alleged promise made at the hearing in the representation proceed- ing to submit a pay roll to the Board. The leaflet stated: "We believe he never had any intention to turn the pay roll over in the first place . . . If the company was sincere, the pay roll would have been sub- mitted to the Labor Board." The Union also informed the employees that it had filed charges of unfair labor practices against the Company and that, "This is the one complaint that National Mineral Co. seems to worry more about than anything else." On or about July 25 the respondent issued the following statement to the employees: TO ALL OUR EMPLOYEES AND FELLOW WORKERS: On the last few evenings on my way home, I picked up hand- bills distributed to you. I have remained silent all along, until I read the last false and un-American statement made by people whom I consider without any responsibility, who are trying to 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD take the reins of guidance through false and abusive statements, which I consider a tragedy. The reason I have kept quiet and have never voiced my opinion or been in touch with you was because I always felt that our co- workers had good sense and intelligence and realized that such statements were untrue and were designed merely for the purpose of stirring up trouble by people who have never been connected with this company and are unacquainted with the principles and high spirits of this organization towards labor, and particularly towards our employees, as we have always considered this organization as one large family. But now that the good faith of our company has been viciously attacked by-these same outsiders, I must speak. Our company has been founded upon the, solid-rock of good faith . . . good faith with its customers . . . good faith with its employees . . . and good faith with the public. It is only by this principle consistently followed, that we, all acting together, have enjoyed the reputation of becoming the largest and most respected in our field. It is only by this same principle that we have been able to increase our working force, increase the general wage level over our competitors, given our employees the benefits of insurance to their families, and in sickness, to themselves; given our employees better working conditions, and retain the loyalty of our employees over such a long period of time. Whoever attacks this good faith attacks each of us individually; attacks the source-of our livelihood and destroys the possibility for future improvement. Whoever does this falsely to create ill-will towards the company is guilty of a vicious disregard of the rights of us all: Until now we have been unwilling to get into a dispute with people who use such unfair tactics, especially since we do not and cannot feel that this would be permitted by honest, loyal and level-headed employees of our company. In the history of our business, we have never made any state- ment to you, nor have we made any promises that we have not kept in every detail. As intelligent people, compare our responsi- bilities, our promises, our statements, to the absurd and im- possible statements and promises, varying from day . to day, which have been made by people whom I consider irresponsible. We refuse to enumerate the many statements we have heard made to you which were impossible to be kept by anybody. - You must decide for yourself how far you can believe outsiders who are not connected with this company, who do not have any NATIONAL MINERAL COMPANY 361 interest in the welfare of this company, who use such un-American methods for the sole purpose of gain-(sic) their own personal ends,-regardless of the destruction of good-will of this company, its employees, and the opinion of the public. Remember, that those who oppose these tactics have riot been permitted to speak; only the false and objectionable side of the picture has been presented to you. I feel that the company's responsibility to our employees and to their families requires us to sternly denounce the injustic0 that has been done to us as a company and as individuals who hold high ,regards for anything that is considered fine, in the distribution of these false and un-American statements, especially at a time when increasing taxes and costs and declining markets, because of the war overseas, add additional burdens in carrying on our business. I ask that you do your share to answer any false and malicious statements that tend to undermine the faith which you and I have in our company, in the continuing prosperity of every one of its employees. Yours sincerely, Louis Y. Stein. - Louis P. STEIN, President. 2. Conclusions The foregoing chronology shows an unremitting campaign by the respondent against the unionization of its employees. The campaign nullified any possible effect of the respondent's repeated assertions of the employees' freedom to join Local No. 21107. Immediately upon the appearance of Miller and other organizers at the plant in the fall of 1939 the respondent's attitude was manifested when its repre- sentatives ordered the organizers away. At the hearing the respon- dent sought to justify this action by showing that the plant was in the Central Manufacturing District, an area in which most of the real estate, including all streets, is privately owned by a corporation that maintains its own street lighting and displays signs on some, but not all, streets stating that the property is owned by the District. However, the record shows also that the streets of the District are not fenced off from the rest of the city, and that no "no trespassing" signs were posted near the plant. There is no evidence of authority in the respondent to limit or control the use of the street in question. Moreover, the street was accessible to -the general public and it would have been improper for the respondent, if it had such authority, to exercise it for the purpose of hindering the organization of its employ- 362 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD ees3° Since there is no evidence of misconduct by the organizers warranting their exclusion from the street, it is plain that the sole reason they were ordered away was to prevent their union activities. When the organizers refused to retreat, the respondent attempted to make their efforts fruitless by maintaining constant watch over them, thus indicating to the employees that any communication with the organizers would be known to the respondent and might result in reprisal. The respondent contended that this surveillance was nec- essary because of violence accompanying past organizational activities and in order to have first-hand knowledge of what was going on. The record shows no violence occurring at the time here in question or between May 26, 1939, when the settlement agreement above referred to was entered into, and said time.31 It is clear that, with police at the plant, no reasonable' apprehension of violence existed. Moreover, in view of the respondent's action in ordering the organ- izers-away and of its other actions referred to below, the surveillance of the organizers necessarily appeared to the employees as a warning to refrain from joining or assisting Local No. 21107 or any other labor organization. The respondent also exerted direct pressure upon the employees to coerce them into rejecting unionization. Its representatives in- structed employees to refuse or discard union literature and member- - ship applications;' questioned employees concerning union member- ship and activities, and openly kept each other informed thereof; deprecated the activities of Local No. 21107 in statements to employ- ees and represented its efforts as hopeless; indicated displeasure with and suspicion of employees who became members, and a low opinion of their intelligence; warned employees, upon pain of reprisals, not to attend union meetings or speak to organizers; and in at least one case purported to discharge an employee for joining Local No. 21107. The respondent also, with no justification apparent in the record, asked employees if the organizers were "bothering" them, attempting in this manner to encourage hostility to Local No. 21107. When, in the face of the foregoing obstacles, Local No. 21107 felt that it had enough strength to warrant asking the respondent to- consent to an election, the respondent took the position that an election would have to be ordered by the Board after hearing. This position was part and parcel of the respondent's long campaign to frustrate Local No. 21107 and to discourage employees from joining iU See Matter of Ford Motor Company and Internat onal Union, United Automobile Workers of America, 14 N. L. R. B 346, 374, enforced, as modified , N. L. R. B. v. Ford Motor Co., 114 F (2d) 905 (C. C. A. 6), cert. denied 312 U. S . 689; Matter of Harlan Fuel Company and United Mine Workers of America, District 19, 8 N. L. R B. 25, 32; Matter of United Dredging Company , etc and Inland Boatmen 's Division , Notional Maritime Unior, etc., 30 N. L. it. B. 739. ii The respondent was not permitted to adduce evidence of violence prior to the settlement agreement. Evidence of violence of the nature offered by the respondent with respect to such prior period would be immaterial in the circumstances of this case. NATIONAL MINERAL COMPANY 363 that organization, or engaging in concerted activities. We are, therefore convinced, and we find, that the strike was caused by the respondent's unfair labor practices. The respondent seized upon the strike to further its attempt to defeat organization of its employees. In circulating the statement of February 14 the respondent induced the non-striking employees to take concerted action in opposition to Local No. 21107 -and with respect to rates of pay, hours, working conditions, and mutual aid and protection, an area of activity closed to employers. In the state-, ment the respondent attacked Local No. 21107 by representing that the strike was a dispute between the respondent and interloping out- side organizers, of which the employees were incidental -victims. When soliciting the strikers to return to work the respondent again utilized the occasion to attack Local No. 21107. It required the strikers to decide individually as to returning to work, ignoring Local No. 21107, thus depriving the strikers of the advantage of the con- certed activity upon which they had embarked. Through the device of announcing that employees not reporting for work by a certain time would be deemed to have resigned, the respondent in effect threatened them with discharge for exercising their right to continue the strike. Moreover, by characterizing the strike as foolish and hazardous and as being conducted for the benefit of "a couple of union men" the respondent attempted to turn the employees against Local No. 21107. We find that by soliciting the striking employees' return to work in the foregoing manner the respondent discouraged its em- ployees' union membership and concerted activities.32 With respect to the statement which the employees were required to sign in order to obtain their pay checks during the strike, counsel for the respondent admitted that the requirement appeared to the employees to be "an oppressive activity of the company," but stated that the respondent's position was: that these employees would not be entitled to Unemployment Compensation if they were fired; the Company did not wish to take that responsibility, and they held the checks and said "Any time you come in you can have the check, but you will have to decide whether you want to be an employee of the company or not." He further stated that the facts showed: "that the Company was'not willing to deprive these people of their unemployment compensation under the Illinois laws unless they themselves took that responsibility " An examination of Illinois Social Security Regulations 14-17 in effect at the time of the strike and of the forms therein prescribed, 12 See Matter of Tidewater Express Lines, Inc. and Freight Drivers & Helpers Local Union No. 667, 32 N. L. R. B. 792. 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of which we take notice, fails to disclose any requirement for the statement. In view of the -respondent's announced intent to dis- charge employees who continued to strike, it is plain that, the sole purpose of this statement was to confuse employees into the belief that by stating the obvious fact that they wished to be considered employees they renounced their right to continue the strike. - The respondent, in its letter to the employees after the strike, asserted a willingness to overlook the strike. At the same time, however, it expressed thanks to the non-strikers and regret for some employees' loss of wages, and it permitted a cartoon hostile to strikers to remain posted on its bulletin board, thus attempting to arouse resentment against Local No. 21107. In the light of these facts the respondent's reference to "an -ism," -otherwise enigmatic, contained in its letter to the employees after the strike, appears to have been a further attempt to discredit that organization. After the strike- the respondent continued its policy of combatting Local' No. 21107. Thus Burke, Roder, and Zach enforced the plant rule- against talking only or preponderantly with respect to talk about unions; Zach and Gidwitz permitted an employee who had deserted Local No. 21107 to poll the upholstery-department employees as to their stand on unionization while Zach warned a union member not to watch him; and Gidwitz and Calloway questioned employees as to happenings at union meetings. Gidwitz's questioning of LeDonne as to why she remained loyal to Local No. 21107 and Calloway's and Zach's comments and advice to Labiak and Kwaiter.were patent attempts to discredit Local No. 21107 and to dissuade employees from remaining members thereof, and belie the respondent's contention that its officials were merely seeking evidence concerning Local No. 21107's alleged misrepresentations about the respondent. - The respondent carried its opposition to unionization of its em- ployees even to the extent of attempting, by refusal of its cooperation and by threatening and intimidating employees desiring to vote, first to prevent the Board election and then to destroy its usefulness. ,- We have held that an employer is under a duty to cooperate with a labor organization to a reasonable extent in an inquiry as to its claim to have been designated as exclusive bargaining representative. In - our opinion a similar duty lies to cooperate with the Board in a representa- tion proceeding, and the respondent's unjustified refusal to permit the posting of election notices or to furnish copies of its pay roll constituted an interference with its employees' efforts at self-organization. The respondent went beyond mere non-cooperation, and by maintaining 33 Matter ofBurnside Steel Foundry Company and Amalgamated Association of Iron, Steel & Tin Workers, etc., 7 N. L. R B 714, 723, Matter of Moltrup Steel Products Company and Steel Workers Organizing Com- mittee, Lodge No 1202, 19 N L. R B. 471, 491, enforced as modified , N L R B v Mottrup Steel Products Company, 121 F. (2d) 612 (C. C. A. 3), Matter of National Seal Corporation and International Association of Machinists, etc., 30 N. L. R. B. 188 NATIONAL- MINERAL COMPANY 365 surveillance over the polling place affirmatively interfered to prevent expression by the employees of their desires concerning representation. The testimony by employees that the respondent's acts did not intimi- date them from voting carries little or no weight, especially in view of the respondent's anti-union bias.34 We have no doubt, and, we find, that employees who desired to vote for the Union did not participate. in the -election because of the respondent's actions, and that said, actions were responsible for the small proportion of the employees voting.35 Finally, the respondent issued statements to its employees char- acterizing their chosen bargaining representative and its agents as irresponsible outsiders who attacked- the employees' source of liveli- hood, and who sought, through distortions and misrepresentations of fact and false, malicious, and "un-American" statements, to stir up trouble and grasp power, all for their own personal ends. It-may be assumed, without condonation and without so finding, that at various times prior to the election the Union made certain misrepresentations, such as "puffing" its claims as bargaining agent and accusing the respondent of having offered a bribe to Miller or Onesta. No evidence was introduced of any misrepresentations after the election. More- over, the invective of the respondent's statements plainly did not aim to correct misstatements or supply its employees with information, but sought only to destroy the Union and to deprive the employees of the benefits of collective bargaining.38 This conclusion is-borne -out by the respondent's statement that working conditions and wages would not "be dependent . . . upon what outsiders want . . .," a warning to the employees that, irrespective of the outcome of the election, the respondent would refuse to bargain collectively with the Union. The respondent alleged as a general defense to its foregoing actions- and to its refusal to bargain, discussed-below, that the Union's activ- ities, although apparently legitimate when considered alone, reason- ably appeared to the respondent to be illegal when considered against the background of alleged violence, misrepresentations, abuse of process, and other circumstances which had accompanied, the efforts` of the Union and other labor organizations to organize the respond- ent's employees. Counsel for the respondent stated that this defense is based upon the principle laid down by the Supreme Court in Milk Wagon Drivers Union v. Meadowmoor Dairies, Inc.," namely, that 34 Matter of Texarkana Bus Company , Inc , etc., and Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, etc , 26 _N. L R B 582, enf'd . as mod , Texarkana Bus Company, Inc.; etc. v N: L R B, 119 F. (2d) 480 (C. C. A 8), Matter of Manville Jenckes Corporation , and ano , and Independent Textile Union of America , 30 N. L R. B 382, footnote 36 35 New York Handkerchief Manufacturing Company v. N L R. B ,114 F (2d) 144 (C. C. A 7), cert. denied 311 U. S 704 , enf'g as mod. Matter of New York Handkerchief Manufacturing Co. and International Ladies Garment Workers Union Local No 76, 16 N. L R. B 532 36 Matter of Pulaski Veneer Corporation and United Brotherhood of Carpenters & Joiners of America, Local Union #1862, 10 N L. R. B. 136, 144. - 37 312U.S.287. 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "acts which in isolation are peaceful may be part of a coercive thrust when entangled with acts of violence." We are convinced, and we find, that the Union's attempts to bargain with the respondent and its other organizational activities were made and carried on in good faith. Even if illegal activities of the character alleged had been engaged in by the Union the respondent was obliged to treat with the Union 38 and to refrain from interfering with the self-organization of its employees. Evidence of such illegal activities was therefore immaterial. Plainly the respondent could have dealt with such illegal conduct in some manner other than by refusing to bargain with its employees' duly certified bargaining representative and by taking it upon itself to discourage its employees from joining a labor organization and to prevent union activities which, standing alone, were legitimate. We are convinced, further, that the respondent did not believe that the Union's activities were part of an illegal course of violence, misrepresentation, and abuse of process as alleged. The record shows that during the strike a girl striker assaulted a non-striking employee, but no_ evidence was adduced or offered of other violence connected with Local No. 21107, the Union, or their members.39 The misrep- resentations proved or offered to be proved by the respondent were that prior to the election the Union claimed to have been certified by the Board and that only union members would be eligible for em- ployment; that various labor organizations, including the Union and Local No. 21107, from time to time made other claims of majority to the Board, the respondent and to the employees which were un- true; that an organizer told the employees that they were "sorely exploited" and that the respondent was making enormous profits; that union members accused Gidwitz of having offered Onesta or Miller a bribe; and that Miller claimed to have received a "power of attorney" from "the District Attorney's office" or "some officials of the State . . . or Federal Government" to collect the striking employees' pay, on their behalf. The respondent attempted through its cross-examination of Board- witnesses to establish additional mis- representations of which it admittedly knew nothing, and to show 33 N. L. R. B. v. Remington Rand, Inc , 94 F. (2d) 862 (C. C. A 2) cert. denied 304 U. S. 576, enforcing as modified, Matter of Remington Rand, Inc and Remington Rand Joint Protective Board, etc., 2 N. L. R. B. 626. Si Gidwitz testified that at the time of the strike Victor Wattell and "a couple of other fellows" were told that they would be "beaten up" if they did not stay away from the plant, but he failed to identify the per- sons who made such prediction or threat, or to connect them with the strikers or Local No. 21107. Gidwitz also testified that during the strike tires were "slashed" on some automobiles, and he and other witnesses testified to the effect that roofing tacks or nails were placed under the tires of several employees' automobiles and later found in the tires. Max Sackover, an employee who deserted the strike, testified that a few weeks after the strike "big boulders" were rolled through two rooms of his house and all the front windows broken; and Bernard Radzinsky, an employee who did not participate in the strike, testified that "a couple of months" after the strike paint was thrown upon his automobile. No evidence was adduced or offered connecting these alleged incidents with the Union, Local No. 21107, or their members. See footnote 31, supra. , NATIONAL MINERAL COMPANY 367' that the union members were kept in ignorance of what was going on between the respondent and the Union, but it was not permitted to do so. • In view of the desirability of avoiding unnecessary inquiries into union activities, the duty of employers to refrain from such inquiries, and of the fact that the respondent's refusal to bargain and its anti-union activities could not have been,predicated upon such additional alleged misrepresentations, since it had no knowledge of them, this ruling was correct. With respect to the alleged abuse of process the respondent con- tended that over the course of years labor organizations had filed with the Board numerous unfounded charges of' unfair labor practices' against the respondent, and petitions for certification of representa- tives containing misrepresentations as to their membership among the respondent's employees, that the Union had done so in order to, utilize the Board for the "adjudication" of a labor dispute, and that at the time of the strike the head of Local No. 21107 called in "the Federal Conciliation Service, the State,Mediation Board, the Wage and Hours Division, the Teamsters and Truckers Union, and threat- ened to proceed before the State's attorney . . . merely to exert pressure upon" the respondent. The respondent also pointed to the fact that Local No. 21107 called the strike "while negotiations were proceeding" before the Board. We find that the respondent did not' reasonably believe that the activities of the labor organizations here involved were illegal: We find that by its activities set forth in subsection A the respond- ent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7' of the Act. B. The refusal to bargain collectively On September 24, 1940, the Board, acting pursuant to Section 9 (c) of the Act, certified that the Union had been designated- and selected by a majority of all the hourly paid production employees of the respondent at its Chicago plant, excluding office, maintenance, and sales employees, carpenters, firemen, engineers, foremen, and super- visors, as their representative for the purposes of collective bargaining and that, pursuant to Section 9 (a) of the Act, the Union was the exclusive representative of all such employees for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment.40 A copy of the certification was duly served upon the respondent by registered mail that same day. On September 30, 1940, the Union wrote, to the respondent informing it of the certification and stating that a commit- tee would call on the respondent at a stated time to discuss the hours, wages, and working conditions of all employees for whom' the Union 4027N L. R.B.432. 448105-42-vol 80-25 i 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had the right to bargain.41 The respondent replied on October 2, refusing to'bargain, allegedly because of the small number of persons, who voted and because of various questions which the respondent had raised in the representation proceeding. On October 3 the Union again wrote to the respondent, stating that it would take -action against the respondent unless the respondent agreed to bargain with it by October 7. The respondent persisted in its refusal to bargain:. We have already discussed the respondent's general defense to its refusal to bargain and to its other activities set forth in subsection A.42 The respondent also contended that its refusal to bargain ,was . justified because of the small number of participants in the election; and because the units for which, the Union demanded. recognition varied from time to time, both, before and after the certification. The number of votes cast did not affect the respondent's duty to bargain with the Union.. It is an established principle of democratic elections that non-participants are presumed, to assent to the will of the majority of those voting.43 This presumption was not rebutted. Indeed, the number of persons participating in the election was sub- stantial and, but for the respondent's unlawful conduct, which plainly tended to intimidate the employees from voting, would have been greater.44 No evidence was introduced to indicate that employees were prevented from voting except by. the respondent's own acts. The determination by the Board of a bargaining agent may not be frustrated by the respondent's own unlawful conduct.45 In view of the respondent's unlawful conduct, we do not regard as reliable' or material the testimony proffered by the respondent to the effect that employees refrained from participating in the election for reasons not attributable to the respondent's unlawful acts.46 41 The Union wrote a similar letter to the respondent on August 7, 1040, following the Board election The respondent at that time refused to bargain with the Union 42 See subsection A, 2, above, entitled " Conclusions " 43 Virginia Railway Co v. System Federation No 40, et al , 300 U. S 511; New York Handkerchief Manu- facturing Company v. N L R B, 114 F (2d) 144 (C C. A. 7), cert . denied 311 U. S. 704, enf'g as mod. Mat- ter of New York Handkerchief Manufacturing Co. and International Ladies Garment i4 orkers Union Local No. 76, 16 N. L R. B. 532. 44 In this connection we note that our experience with employee elections shows that on the average about 90 percent of the eligible employees vote, a fact indicating keen interest on the part of employees in the choice of bargaining representatives in the absence of unfair labor , practices. See Fifth Annual Report of the Board , page 18. 45 New York IlandterchiefManufacturing Company v. N. L. R. R., 114 F. (2d) 144 (C. C. A. 7), cert. denied 311 U S. 704, enf'g as mod . Matter of New York Handkerchief Manufacturing Co and International Ladies Garment Workers Lnion Local No. 76, 16 N. L. R. B., 532. 46 See Bethlehem Shipbuilding Corp v. N. L. R. B , 114 F. (2d) 930, 937 (C. C. A 1), wherein the Court, in overruling a contention that a labor organization was shown to be free from company domination by the testimony of employees that they were "under no sense of constraint ," pointed out that the "recognition of constraint" is "a subtle thing" and "may call for a high degree of introspective perception." Cf. N. L. R. B. v. Link-Belt Co., 311 U. S 584, in which the Court stated. It would indeed bee rare case where the finders of fact could probe the precise factors of motivation which underlay each employee's choice. Normally, the conclusion that their choice was restrained by the employer's interference must of necessity be based on the existence of conditions or circumstances which the employer created or for which be was fairly responsible and as a result of which it may reason- ably be inferred that the employees did not have that complete and unfettered freedom of choice which the Act contemplates. NATIONAL MINERAL COMPANY 369 The defense that the Union shifted its position with respect to the appropriate unit is clearly untenable, since the respondent admits that it refused to recognize the Union as the exclusive bargaining repre- sentative of the employees in the appropriate unit. After the certi- fication the Union requested recognition for a unit other than the one found appropriate by the Board only when the respondent refused its demand for recognition as representative of the employees in the appropriate unit. We find that the respondent, on October 2, 1940, and at all times thereafter, has refused to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit' and has thereby interfered with, restrained, and coerced its employees in the' exercise of the rights guaranteed in Section 7 of the Act. C. The discharge of Albert Labiak Labiak started to work for the respondent in March 1936. In about 'June 1939 he was promoted to the position of inspector in the mechanical-assembly department, which position he held until his dis- charge on June 28,,1940.' Labiak joined Local No. 21107 in October 1939. He attended "practically every meeting of the organization" and Foreman Callo- way, as found above, questioned him about the meetings. During the February 1940 strike Tennyson and Foreman Calloway asked Labiak to return to work, but Labiak refused. On the occasion when the striking employees were requested to sign the statement as to whether they wished their employment "conside"red ended," Labiak advised them not to sign without reading it, and he attempted to take a copy of the statement out of the plant. Louis Stein, president of the respondent, snatched the paper from Labiak's hand, called him a vile name, and said, "What do you want to use this for, evidence?" Immediately after the strike Labiak became shop steward for Local No. 21107 and he acted in that capacity until his discharge. The foregoing findings, except as to Calloway's questioning of Labiak, already considered, are based upon uncontradicted evidence. On the morning of June 28 Gidwitz appeared in Labiak's depart= ment with a "returned merchandise requisition" containing an inspec- tion report by Labiak on a certain permanent-wave machine. Labiak's report said: "0. K. in every way. Clean.", At Gidwitz's request Labiak pointed out the machine in question which, on the basis of Labiak's report, had been returned to stock for sale. The machine- was found to have defects, and a few minutes later Calloway, acting on Gidwitz's instructions, discharged Labiak. Gidwitz testified that there were large places where the chromium plating had come off the' machine and that some of the parts were bent. Labiak, in his testi- 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mony, admitted that Gidwitz called his attention to a slight defect in the chromium plating which he had overlooked , but he' made no reference to bent parts . According to both Labiak and Calloway the cost of correcting the defects was about $1.50. Labiak testified that no complaints had been made previously about his work and that on the morning of his discharge he had requested a raise of Calloway, who had replied that Labiak was a good man and deserved more than he was getting and that he would see to it that a raise "went through." Calloway testified that about 1 week before the discharge he informed Labiak that complaints had been made of machines leaving the factory with castings bent out of shape, and that Labiak had promised , " Well, we will see that they are straighter from now on." Calloway admitted that he promised Labiak to speak to Gidwitz about an increase in Labiak's pay but stated that he had no opportunity to take the matter up with Gidwitz. While Labiak's inspection of the particular machine was imperfect, the question remains whether this minor mistake by an employee who had given satisfactory service as an inspector for a year was the cause of his discharge or a mere pretext seized upon for ridding the plant of an outstandingly active and aggressive union member. Gidwitz's testimony as to how he came to look into Labiak's inspec- tion 'report was as follows : The respondent received from Royale Beauty Company, one of its customers , herein called Royale, a letter dated June 21, 1940 , in which it complained of having received several incorrectly assembled permanent -wave machines , stated that it was returning two of the machines for replacement , and requested the respondent to "look into this problem of poor assembly and inspec- tion." The respondent 's president brought the letter to Gidwitz and stated that too many complaints from customers had been received. Gidwitz thereupon ordered Stiers , the service manager, to have the two machines picked up and the inspection reports concerning them brought to Gidwitz. When one of the machines arrived , Stiers brought an inspection report to Gidwitz and stated: "here is the requisition slip that you wanted." Gidwitz took the report to Callo- way and said : " Calloway here is a machine that was returned by the customer and here is the inspection report that says there is nothing wrong with it. Let me see the machines." Gidwitz was under the impression during his direct examination that the inspection report related to one of the machines returned by Royale pursuant to its letter of June 21, namely , machine No. 1629 or No. 1827 . An examination of various requisitions containing inspection reports, however , showed, and Gidwitz admitted, that machines Nos . 1629 and 1827 did not arrive until after Labiak's discharge, and that the inspection report for which Labiak was dis- charged related to machine No. 2027 , another machine returned by NATIONAL MINERAL COMPANY 371 Royale. The respondent's records show, as Calloway admitted, that Labiak's inspection report relating to machine No. 2027 was made the same morning he was discharged. It further appeared from the requisitions and from Calloway's testimony that the defects of machines Nos. 1629 and 1827 were due to subsequent handling and "to natural use" end not to poor assembly or inspection, as asserted in the letter. Calloway also testified that customers often returned machines because of defects for which the respondent was not responsi- ble. Gidwitz admitted the error in his original testimony, but insisted that Labiak had been discharged for approving as perfect the imperfect machine which was discussed immediately prior to the discharge. Calloway testified as to. the discharge as follows: He [Gidwitz] came down with an inspection report on a machine that had been returned from the Royale and he said that we could not tolerate work going out like that, and the machine had come back and the inspection report had been made out, there had been no attempt made to repair and return it to stock, but Labiak marked his inspection report "In A-1 condition, returned to stock" so we had to spend about a dollar and a half for parts plus labor to make that machine saleable again . . . the castings were bent and the machine in transit evidently the chrome had been knocked off of the plating in transit. No claim was made that the respondent ever previously made a special check on an inspector's work. Indeed, Calloway testified that even after the complaint of faulty inspection, work a week before Labiak's discharge, he continued to sign Labiak's inspection reports without question or investigation. Furthermore, the record shows that unjustified complaints by customers were a'frequent occurrence and that the complaint which allegedly started the chain of events ending in Labiak's discharge was unjustified. In these circumstances the events,leading to Gidwitz's checking the inspection report were important and highly material. Gidwitz testified, in effect, that on about June, 21, when Royale's complaint was received, he sent for an inspection report made some time prior to that date in order to find out the basis, if any, of the complaint. No explanation was offered of how on the morning of June 28, after an interval of a week, he came to be given and to accept a report made that morning and having nothing to do with the complaint which allegedly caused him to take the unusual step of checking Labiak's work. We conclude that the- respondent, having determined to discharge Labiak because of his union membership and activities and his activities during the strike, watched his work closely and, when a trivial error was finally dis- covered, attempted to use it to conceal the true reason for his discharge. . 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that the respondent has discouraged membership in the Union by discrimination in regard to the hire and tenure of employ- ment of Albert Labiak, thereby interfering with, restraining, and coercing its employees in the exercise of -the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the respond- ent described in Section I above, have a close, intimate, and sub- stantial 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 which we find will effectuate the policies of the Act. We have found that the respondent refused to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit. We shall, therefore, order the respondent, upon request, to bargain collectively with the Union as such representative. We have -found that the respondent discriminated against Albert Labiak by discharging him. We shall order The respondent to offer Labiak immediate and full reinstatement to his former or a sub- stantially equivalent position, without prejudice to his seniority or other rights and privileges. We shall further order the respondent to make Lablak whole for any loss he has suffered by reason of the discrimination against him by payment to him of a sum of money equal to the amount which he would normally have earned as wages from the date of such discrimination to the date of the offer of rein- statement, less his net earnings "during such period. Upon the foregoing findings of fact end upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. Chrome Furniture, Handlers and Miscellaneous Crafts Union No. 658, affiliated with Upholsterers' International Union of North 47 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 elsewhere 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 protects shall be considered as earnings . See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7. NATIONAL MINERAL COMPANY 373 America, affiliated with the American Federation of Labor, is a labor organization, and Beauticians Supplies and Cosmetic Workers-Union Local 21107, affiliated with the American Federation of Labor, was a labor organization, within the meaning of Section 2 (5) of the Act. 2. All the hourly paid production employees of the respondent at its Chicago plant, excluding office, maintenance, and sales employees, carpenters, firemen, engineers, foremen, and supervisors, constitute, and at all times herein material constituted, a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. Chrome Furniture, Handlers and Miscellaneous Crafts Union No. 658, affiliated with Upholsterers' International Union of 'North America, affiliated with the American Federation of Labor, is, and at all, times since September 24, 1940, has been, the exclusive repre- sentative of all the employees in said unit for the purposes of col- lective bargaining within the meaning of Section 9 (a) of the Act. 4. By refusing to bargain collectively with Chrome Furniture, Handlers and Miscellaneous Crafts Union No. 658,- affiliated with Upholsterers' International Union of North America, affiliated with the American Federation of Labor, as the exclusive representative of all its employees in the appropriate unit, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section' 8 (5) of the Act. 5. By discriminating in regard to the hire and tenure of employ- ment of Albert Labiak, thereby discouraging membership in a labor organization, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 6. 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. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. ORDER I 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 respond- ent, National Mineral Company, Chicago, Illinois, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Chrome Furniture, Han- dlers and Miscellaneous Crafts Union No. 658, affiliated with Uphol- sterers' International Union of North America, affiliated with the 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD American Federation of Labor, as the exclusive representative of all the hourly paid production employees of the respondent at its Chicago plant, excluding office, maintenance, and sales employees, carpenters, firemen, engineers, foremen, and supervisors; (b) Discouraging membership in Chrome Furniture, Handlers and Miscellaneous Crafts Union No. 658, affiliated with -Upholsterers' International Union of North America, affiliated with the American Federation of Labor, or any other labor organization of its employees, by discriminating in regard to hire or'tenure of employment, or any term or condition of employment; (c) 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 purposes of collective bargaining or other mutual aid or 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) Upon request bargain collectively, with Chrome Furniture, Handlers and Miscellaneous Crafts Union No. 658, affiliated with Upholsterers' International Union of North America, affiliated with the American Federation of Labor, as the exclusive representative of all the hourly paid pioduction employees of the respondent at its Chicago plant, excluding office, maintenance, and sales employees, carpenters, firemen, engineers, foremen, and supervisors, with respect to rates of pay, wages, hours of employment, and other conditions of employment; (b) Offer to Albert Labiak immediate and full reinstatement to his former or a substantially equivalent position,, without prejudice to his seniority or other rights and privileges; (c) Make Albert Labiak whole foi,any loss of pay he has suffered by reason of his ,discharge, by payment to him of a sum of money equal io that which he normally would have earned as wages from thu date of his discharge to the offer of reinstatement, less his net earnings during said period; (d) Post immediately in conspicuous places at its plant, and main- tain 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), (b), and (c) 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 respondent's employees are free to become or remain members of Chrome Furniture, Handlers and Miscellaneous Crafts Union No. 658, affiliated with Upholsterers' NATIONAL MINERAL COMPANY 375 International Union of North America, affiliated with the American Federation of, Labor, and that the respondent will not discriminate against any employee because of membership in or activity on behalf of that organization ; (e) Notify the Regional Director for the Thirteenth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply therewith.