Armstrong Furnace Co.

In the Matter of ARMSTRONG FURNACE COMPANY and UNITED AuToMo- BILE, AIRCRAFT, AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, LOCAL #847j AFFILIATED WITH THE C. I. O. Case No. C-2388.-Decided February 13,1943 Jurisdiction : furnace manufacturing industry. Unfair Labor Practices Interference, Restraint, and Coercion: Company-Dominated Union: first organiza- tion : formation of, to forestall "outside" union organization ; expression of hostility toward "outside" union and preference for "inside" union by respondent at plant-wide meeting of employees ; supervisory cooperation and assistance in solicitation of membership; changing of working hours to permit attendance of employees at union meeting ; optional check-off privilege ; donation of facilities for vending machines-successor organization: suggested by respondent's officials; initial organization by president of predecessor organization; forma- tion prior to disestablishment of predecessor; identity of officers in both organizations ; failure of respondent to mark separation of first and second organizations. Discrimination: charges of, dismissed; delegation by respondent to company- dominated union of final authority in selection of employees for lay-off,,held - not conclusive proof of discrimination in absence of showing that disparate treatment was accorded members of the "outside" union as compared with non- members thereof. Remedial Orders : disestablishment of and abrogation'of contract with dominated organizations. DECISION AND ORDER On October 27, 1942, the Trial Examiner issued his Intermediate Report in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action as set out in the copy of the Intermediate Report attached hereto. Thereafter, the respondent, the U. A. W., and the Independent filed exceptions to the Intermediate Report and briefs in support of their exceptions. The Board has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial errors were' committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings and 47 N. L. R. B., No. 67. 463 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conclusions of the Trial Examiner. The remedial recommendations of the Trial Examiner are likewise adopted by the Board except as modified in the Order set forth below. The U. A. W. in its brief argued, in effect, that the respondent's delegation to the Association -and to the - Independent, -respectively, of final-authority in the selection of employees for lay-off, conclusively proves the discriminatory character of the lay-off of Roy Shaffer, Earl Stamper, and Cameron Weyer. We do not agree with this contention. While we regard such- delegation of authority to the Association and the Independent as a circumstance casting suspicion upon the respond- ent's choice of employees for lay-off,' we do not believe that it is determinative of discrimination in the absence of some showing that disparate treatment was accorded either the three employees in ques- tion or union members generally as compared with non-members of the Union.2 ORDER - Upon the entire record in the case, and pursuant to Section 10 (c) of -the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Armstrong Furnace Com- pany, Columbus, Ohio, its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Dominating or interfering with the administration of Colum- bus Independent Furnace Workers Association, or with'the formation - or administration of any other labor organization of its employees, and from contributing financial or other support to Columbus Inde- pendent Furnace Workers Association,_or any other labor organiza- tion of its employees; (b) Recognizing Columbus Independent Furnace Workers Asso- ciation as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment; - (c) Giving effect to its contract of May 28, 1942, with Columbus Independent Furnace Workers Association, or to any' extension, re- newal, modification, or supplement thereof, or to any superseding Cf. Matter of The Dow Chemical Company and United Mine Workers of America, Dis- trict No. 50, 13 N. L R. B 993. 2 Although the record fails to show any differentiation based on union affiliation in the selection of employees for lay-off , we do not find, on the other hand , that the comparative figures cited by the Trial Examiner with respect to the number of union , Association, and Independent members laid off and retained disprove discrimination. The analysis made by the Trial Examiner was based upon membership in the Union as it existed in May 1941, wh.eieas it was shown that in October 1941 and April 1942, the respective dates of the lay-offs, all but a comparatively few members of the Union had either become inactive or had joined the Association and later, the Independent. Moreover, even an affirmative, showing, that there was no blanket discrimination against union members would not in every instance suffice to establish the absence of discrimination against a single employee. ARMSTRONG FURNACE COMPANY - 465 contract with said Columbus Independent Furnace Workers Asso- ciation which may now be in force; - (d) 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) Withdraw all recognition from Columbus Independent Furnace Workers Association as the representative of any of its employees for the purpose of dealing with the respondent, concerning grievances, labor, disputes, wages, rates of pay, hours of employment, or other conditions of employment, and completely disestablish said Columbus Independent Furnace Workers Association as such representative; (b) Completely disestablish Armstrong Furnace Association- as the representative of any of its employees for the purpose of dealing with . the respondent concerning grievances, labor disputes, wages, rates -of pay, hours of work, and other conditions of employment; (c) Post immediately in conspicuous places throughout its plant, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating (1) that the re- spondent will not engage in the conduct from which it 'is ordered to cease and desist in paragraphs 1 (a) to (c) hereof; ,(2) that the re- spondent will take the affirmative action set forth in paragraphs 2 (a) to (c) hereof; (d) Notify the Regional Director for the Ninth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the respondent, by discriminating in regard to the hire and tenure of employment of William Quigley, Roy Shaffer, Earl Stamper, and Cameron Weyer has engaged in unfair labor practices within the meaning of Section 8 (3) of the Act, be, and it hereby is, dismissed. INTERMEDIATE REPORT Mr. James A. Shaw, for the Board. Vorys, Sater, Seymour & Pease, by Mr. John M. Rankin and Mr. Carl Tangeman, of Columbus, Ohio, for the respondent. Mr. Lewis Strickland and Mr F. L. Innes, of Columbus, Ohio, for the Union. Mr. Barton Griffith, Jr., of Columbus, Ohio, for the Independent. STATEMENT OF THE CASE 'Upon a second amended charge 'duly filed on July 3, 1942, Eby United Automobile, Aircraft, and Agricultural Implement Workers of America, Local #847, affiliated 513024-43-vol. 47-30 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with 'the Congress of In Organizations,' herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Ninth Region (Cincinnati, Ohio ), issued its complaint dated July 11, 1942, against Armstrong Furnace Company, Columbus, Ohio,'-herein' called the-respond- ent, alleging that the respondent had engaged in and was engaging -iii -unfair- labor practices within the meaning of Section 8 (1), (2); and ( 3) and Section 2 (6) and (7.) of the National Labor Relations Act, 49 Stat. 443, herein called the Act. Copies of the complaint, together with notice of hearing thereon, were duly served upon the respondent, the Union, and the Columbus Independent Furnace Workers Association, herein called the Independent, a labor organization alleged in the complaint to be dominated and supported by the respondent. - With respect to the unfair labor practices, the complaint alleged in substance: (1) that the respondent since-on or about May 1, 1941, has engaged in a continuous course of conduct which has interfered with, restrained, and coerced its employees in the exercise of their rights to self-organization and collective bargaining; (2) that the respondent dn'or about May 15, 1941, initiated, formed, and sponsored the Armstrong Furnace Association, herein called the Association, and at all times thereafter until on or about December 1, 1941, interfered with and dominated the administration of the Association and contributed support thereto; (3) that the respondent on or about November 1, 1941, initiated, formed, and sponsored the Independent as it successor of the Association, and at all times, since that date has dominated and interfered with the administration of the Independent and has contributed support thereto ; (4) that the respondent on or about October 23, 1941, laid off or discharged Earl Stamper and Roy Shaffer, on or about April 23, 1942, discharged William Quigley, and on or about April 24, 1942, laid off or discharged Cameron Weyer, and at all times since said dates has failed and refused to rein- state each and all of the above named employees because they and each of them joined and assisted the Union and engaged in concerted activities, and that the respondent's action with respect to the above named employees was for the purpose, of discouraging membership in the Union; and (5 ) I that the respondent by the above acts interfered with, restrained, and coerced its employees in their exercise of the rights guaranteed in Section 7 of the Act. The respondent filed an answer dated July 21, 1942, admitting the jurisdic- tional allegations of the complaint and denying that it had committed the unfair labor practices alleged. The respondent admitted in its answer, however, that it had committed certain of the acts which are alleged. to have constituted inter- ference with, domination and support of the Association. On or about August 22, 1942,'the Independent filed with the Board's Regional Director at Cincinnati, Ohio, a motion for leave to intervene in these proceedings and an answer to the Board's complaint. The Regional Director made no ruling' on this motion and at the hearing counsel for the Board referred it to the Trial Examiner for disposition. The motion was granted by the undersigned at the first session of the hearing herein. The Independent in its answer admitted, the jurisdictional allegations of the complaint, denied for want of knowledge the allegations with respect to the alleged domination and support of the Asso- ciation, and denied the allegations of the complaint relating to the Independent. Pursuant to notice, a hearing was held from August 24 to September 2. 1942, at Columbus, Ohio, before the undersigned, the Trial Examiner duly designated by the Acting Chief Trial Examiner. The Board, the respondent, and the Inde- pendent were represented by counsel, the Union by,its representatives, and all participated in the hearing.' Full opportunity to be heard, to examine and 1 Counsel for the Independent at the first session of the hearing entered an appearance of record . He elected , however, to absent himself from the hearing except for a total of about '3 days during which he offered evidence on behalf of the Independent. ARMSTRONG FURNACE COMPANY 467 cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. During the course of the hearing, the respondent filed an application for a subpoena duces tecum requesting that the Union be required to produce its records as of June 1941, which would disclose the identity of its paid-up members, and the dates of their affiliations. The undersigned denied the application for the subpoena. In lieu thereof, the Union, at the request of the Trial Examiner, submitted to the Trial Examiner its membership cards and the Trial Examiner thereafter, without disclosing the identity of any of the Union's membership, supplied the respondent certain statistical data revealed by a study of the membership cards, which data the Trial Examiner deemed material to the allegations of the complaint that the respondent had discrim- inatorily laid off or discharged certain of its employees. The respondent accepted the data supplied by the Trial Examiner, stating, however, that by so doing if did not waive its exception to the Trial 'Examiner's ruling. At the conclusion of the hearing, the respondent moved to dismiss the complaint with respect to the alleged discriminatory lay-off. or discharge of Cameron Weyer, on the,ground that on the first day of the hearing herein the respondent had offered, and Weyer had refused, reinstatement in the respondent's plant. This motion was denied. At the conclusion of the hearing the undersigned, without objection, granted the Board's motion to conform the complaint to the proof. At the close of the hearing, all parties were advised that they might argue orally before the Trial Examiner and that they might file briefs with him. All parties waived oral argument. Counsel for the Board, the respondent, and the Independent filed briefs with the undersigned. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Armstrong Furnace Company, the respondent herein, is an Ohio corporation having its principal office and place of business at Columbus, Ohio, where it is engaged in the manufacture of furnaces. During the year 1941, the respondent purchased in States other than the State of Ohio raw materials valued at ap- proximately $705,000 and constituting about 85 percent of all the materials used during that period. During the same period the respondent's gross sales of its products approximated $2,400,000, of which 75 percent, valued at approximately $1,700,000, was sold in States other than the State of Ohio It was stipulated at the hearing that the respondent is, and at all times material herein has been, engaged in interstate commerce within the meaning of the Act. It was stipulated at the hearing that all of the respondent's stock is owned by "the Norris family,'.' consisting principally of D. W. Norris and his son, John' H. THE ORGANIZATIONS INVOLVED United Automobile, Aircraft, and Agricultural Implement Workers of America, Local #847, is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership employees of the respondent. The record contains frequent references to the Lennox Furnace Company. It was stipulated at the hearing that all of the stock of the Lennox Furnace Company is also owned by "the Norris family." The record shows that the Lennox Furnace Company operates a plant at Columbus , Ohio, which is located adjacent to the respondent's plant, as neil as plants at Syracuse , New York, and Marshalltown , Io«a. , 468- DECISIONS-,OF -NATIONAL- LABOR RELATIONS BOARD Armstrong Furnace Association was,'until'its dissolution, an unaffiliated *labor organization, admitting to membership, only employees of the respondent. Columbus Independent Furnace Workers Association is an, unaffiliated labor, organization admitting to' membership only employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Interference with, domination, and support of the Association; interference, restraint, and coercion ' 1. History of the Association ; respondent's opposition to the Union Early in May 1941, the Union began organizing the respondent's employees. Several employees joined the Union, made application for a local charter, and on or about May 10 began wearing union, buttons in the plant. Frank Leonard, the respondent's plant superintendent, admitted that as soon as he heard the Union was attempting to organize the employees, he "started looking around," and after seeing four or five employees wearing union buttons he reported the matter to J. L. McLaughlin, the respondent's factory manager. William Scase, an employee, testified that shortly after the Union began organizing the employees, William J. Bernhard, foreman of -the shipping department, called Scase to his office and stated that he had heard that the employees were organizing a union, that the employees "didn't know which side their bread was buttered on," and asked Scase to inform him which employees were active in organizing the union. Bernhard testified that he did not recall making the above-quoted statement and denied telling Scase to inform him as to who was organizing the Union. The undersigned credits Scase's testimony and finds that Bernhard expressed dis- approval of,the Union and requested that Scase become his informer concerning the Union's activities' It is further foiuld, in view of Leonard's admission, noted above, that Plant Superintendent Leonard manifested anxiety over the Union's attempt to organize the respondent's employees. A day or two after the first show of union buttons in the plant, a group of employees began organizing the Association. According to the credible and un- disputed testimony of Walter Smith and Albert Nagy, they and other employees, when they heard about the Union coming into the plant, decided to form an -organization to keep the Union out. After a few informal group meetings, Art Wiles, a local attorney, was retained by Nagy and Ray Godden, another employee, to-assist in perfecting the organization.' On or about May 10, several of the Scase impressed the undersigned as an honest and forthright witness. He is' no longer employed by the respondent , having voluntarily terminated his employment. On the other hand, Bernhard , although denying that he asked Scase to act as an informer, was hazy and indefinite as to whether he made the other statement attributed to him by Scase. * The complaint ' alleges that the respondent suggested that the employees retain "a certain attorney to advise and represent them " in forming the Association . Cameron Weyer, an employee, testified that Nelson Leezer, another employee , told him that, upon Leonard's advice, he had retained Wiles. At the time of the hearing Leezer was in the armed forces and was unavailable as a witness. Nagy testified that, upon his request, Leonard recommended Wiles as a "good attorney" and permitted Nagy to leave the plant for a couple of hours because he' had "some business to do, " and that he and Godden then left their work, rang out their time cards , and conferred with.Wiles about forming the Association . Nagy testified further that he at no time told Leonard why he wanted an attorney or in any manner indicated to Leonard the nature of the "business " he wanted to transact. Leonard testified that Nagy' asked 'him to recommend an attorney, that he did not ask Nagy why he Ni anted an attorney , and that he knew Nagy had been having some trouble getting a birth certificate . He further testified that he did not know that Nagy and Godden left the plant shortly after Nagy's inquiry . In view' of Nagy's activity on behalf of the Association, Leonard's admitted haste in notifying McLaughlin ARMSTRONG ' FURNACE- COMPANY - t'. 469 employees met at the Riverside Grill, a restaurant near the.plant , and elected temporary officers. Those present at this meeting also discussed possible wage increases, basing their discussion upon a document containing the name and seniority standing of all the employees and the current wage scale , which two of the employees had obtained from the respondent's office.' On May 13 or 14, several of the employees who were interested in the Association met at the home of one of the employees. Attorney Wiles presided at this meeting and instructed the employees regarding the formal organization of the Association. No definite action was taken at this meeting. On May 15, the respondent called all of its employees to a meeting in the plant during working hours, where they were addressed for about one-half hour by John Norris, the respondent's vice president and one of its principal stock- holders. The employees were compensated for the time spent at this meeting. The undersigned finds that Norris, in substance, stated that the Norris family owned extensive industrial and business enterprises ; that the meeting was called because he understood there was union activity in the plant ; that the Act prevented him from telling the employees what union they should join and assured them there would be no discrimination against any employee regardless of his union affiliations; that employees at other plants owned by the Norris family had unaffiliated unions, that one department in one plant had an A. F of L union, and that the management at those plants enjoyed pleasant relations with those unions. It is further found that Norris read the contents of the Union's membership card, which he held in his hand throughout the speech, and stated that by signing the -card the employees gave the Union power of attorney to act exclusively for the employees with respect to all matters concerning their employment and urged the employees to be careful what they signed ; ° stated that the respondent would deal with any labor organ- ization as long as its demands were reasonable, but that the Norris family would not stand for a closed shop, and if the unreasonable demands of any organization resulted in a strike the Norris family could survive without the operation of the plant longer than could the employees; ' and stated in substance that the C. I. O. "had a bad record" for calling strikes, that it "held up produc- tion," that the employees could bargain for themselves better than could of the Union's activity in the plant , and his further testimony that when he beard the employees talking about the Association he "started to look into the whole thing there as near as [he] could," it seems unlikely that Leonard was unware of Nagy 's purpose in seeking his advice regarding an attorney. While the matter is not wholly free from doubt, the testimony summarized above is not, in the undersigned's view, sufficient to support a finding that Leonard iecommended that Wiles be retained to assist the em- ployees in organizing the Association, or that Leonard permitted Nagy and Godden to leave their work to confer with Wiles regarding the Association. 6 The complaint alleges that the respondent supplied the Association with the names and addresses of all its employees, to be used by the Association in its membership drive. The respondent, in its answer, admits that it supplied the Association with the names and addresses of its employees. The undersigned finds, however , that the record is barren of any evidence supporting the allegation that this information was given for the alleged purpose or that it was used for that or any other purpose except the discussion of possible wage increases. ° According to the testimony of Thomas McLoughlin , a witness for the respondent, and Roy Shaffer , a witness for the Board , ,chose testimony is substantially similar to the testimony of many other witnesses on this point, Norris illustrated the meaning of "power of attorney" by stating in effect that signing a C. I. 0 card was the same as giving "a total stranger , the right to sell your house for any price you could get." 7 The witnesses disagreed as to the exact language Norris used when stating that the continued operation of the plant was not necessary to the wellbeing of the Norris family. However, the meaning of the varied language used by different witnesses is essentially the same. I 470 DECISIONS OF. NATIONAL .UABOR.:REL'ATIONS BOARD "outside people," and that the respondent would rather bargain with " the men in the shop," or any independent union than with an "outside organization.f ! It is clear_from.all the evidence' that the Association's organizational activi- ties began immediately after' the Union commenced its organizational effort and just prior to-Norris' speech. It is equally clear that immediately following Norris' speech there was a marked intensification of Association activity both inside sand outside the plant. Several witnesses testified that they first noticed Association activity after Norris had addressed the employees. The undersigned finds that Norris' speech was delivered to the employees for the purpose, and had the inevitable effect, of restraining the employees from joining the Union and assisting the week-old movement to organize an,unaffiliated organization. ' The support of the Association supplied by Norris' speech was utilized to the fullest extent in the organized solicitation for the Association which immediately followed it. According to the undisputed and credible testimony of several witnesses for all parties, several employees interested in the Associa- tion at the conclusion, of Norris'. speech stood near the place where the speech had been delivered and passed out the Association's application blanks to the employees as they left the plant. Nagy, a witness for the respondent, testified, for example, that he-and 30 or 40'other employees passed out such applications on this occasion. Nagy also testified • that certain members of the Union at the same time passed out applications for membership 'in the Union. Nagy's testimony with respect to the distribution of application cards for the.Asso- ciation and the Union on this occasion is corroborated by the testimony of Paul Clouse, Walter Smith, and Fletcher Wright, witnesses for the Independent. The undersigned finds that immediately following Norris' speech to the em- ployees there was extensive solicitation on behalf of the Association on company property and that the Union at the same time engaged in like but less extensive activity. On or about May 16, the Association, according to McCaghren's testimony, which is credited, requested recognition. Upon the respondent's request for proof of the Association's claim to represent a majority of the employees, it submitted to the respondent either its membership cards or a list of its members which showed that more than 51 percent of the eligible employees were members The respondent's representatives then stated that "they thought they would be able to recognize" tbe^'Association and if they decided to do so, they would post a notice to that effect "in the next couple days." On May 19, the, respondent posted a notice recognizing the Association as the collective bargaining representative of its members only. - About the middle of July, a general meeting of the Association was held and permanent officers were elected. Shortly thereafter, permanent departmental representatives were elected, according to the credible and undisputed evidence, at a meeting which the respondent enabled the employees to attend by closing the plant for two hours between the day and the early night shifts. The respondent admits in its answer that it "changed working hours on one occasion so as to permit all employees to attend a meeting." On all the evidence, the undersigned finds that the admission in the answer refers to this meeting. 8 The above finding as to the substance of Norris' speech is based upon the testimony of numerous witnesses for all parties. Some witnesses for the respondent and the Inde- pendent 'testified that they did not hear or did not remember hearing certain statements attributed to Norris by the Board's witnesses, but as to those things 'remembered there is no serious conflict in the testimony. ' The respondent failed to call Norris as a witness and the record contains no explanation for its failure to do so except that Norris spends 'most of his time at the Lennox Furnace Company's plant at Marshalltown, Iowa. ARMSTRONG FURNACE COMPANY 471 While the Association was organizing, and continuing for some time thereafter, the Association's organizers were permitted freely and extensively to discuss the Association with employees and solicit them to join while, in the plant during working hours. There is persuasive evidence, moreover, 'that Plant Superin- tendent Leonard urged several employees to join the Association. William Scase, 'an active organizer for the Union, testified that on August 16 he inquired of Leonard as to the whereabouts of John Slattery, an active solicitor on behalf of the Association,' and Leonard inquired if Scase wanted to "sign up with the bpys." Roy Shaffer testified that on two successive days about the middle of August, Leonard told him he "might as well sign up with the boys and make it 100%." Shaffer further testified that at about the same time, Slattery asked him to join the Association and he replied that if he ever joined the Association 'he would sign a card with Leonard. According to Shaffer, Leonard came to him shortly after his conversation with Slattery and said that Slattery. had told *him Shaffer wanted to see him. When Shaffer denied that he had sent for Leonard, Leonard again asked him to join the Association, and Shaffer replied that he would talk about joining after Leonard put Earl Stamper "back on the job." 10 Leonard, according to Shaffer, then said that Shaffer should try to get Stamper to join the Association because he could "do more with him" than Leonard could, and then shut off the band saw on which Shaffer was working and told him to go speak to Stamper about the Association. Shaffer went to the steel shop and talked to Stamper concerning the Association for about 25 or 30 minutes. Shaffer's testimony concerning this incident is corroborated by Stamper, who also testified that during the conversation between Shaffer and Stamper, Leonard stood nearby and watched Shaffer and Stamper.11 Leonard denied engaging in the activity attributed to him by Scase, Shaffer, and Stamper, and testified that he never spoke to any employees about any labor organiza- tion. It has been noted above that Leonard informed his superior of the Union's activity in the plant as soon as he became aware of it and that when Leonard first noticed activity on behalf of the Union in the plant he admittedly "started to look into the whole thing there as near as [he] could." In view of Leonard's haste in notifying his superior of the Union's activity in the plant and his admitted interest in watching the Union's activity as closely as possible, the undersigned finds that Leonard was interested in keeping the Union out of the plant and in seeing that the Association became firmly entrenched. The under- signed rejects Leonard's testimony that he took no part in the Association's membership drive, credits the testimony of Scase, Shaffer, and Stamper, and finds that Leonard engaged in membership solicitation for the Association. There is some evidence that the members of the Union also discussed their organization with the employees and solicited the employees to join it while in the plant during working hours The undersigned finds that the Union's organ- ' Slattery is a janitor at the respondent's plant and frequently is utilized by the re- spondent to run errands. is duties take him through all departments of the plant, and it is clear that he fraternizes with most of the employees Earl Stamper; an employee, referred to Slattery as a "good-will ambassador." Although Slattery's duties bring him into frequent association with the management, the undersigned finds that Slattery is not a representative of the management and cannot reasonably be so regarded by the employees. ro Shortly before this conversation Stamper had been transferred from the shipping department, where Shaffer worked, to the steel shop, where he was required to sciape 'held splatter from furnace bodies. 11 Shaffer testified that he did not know whether or not Leonard witnessed the con- versation between him and. Stamper because he was facing the direction opposite from where Leonard would likely stand if he did follow Shaffer from the, shipping, department to the steel shop. 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD izers engaged in some union activity in the plant during working hours, but that this activity, was by no means as extensive as that engaged in on behalf of the Association. Weyer, a witness for the Board, testified, without contradiction; that on many occasions he talked with Norris in the latter's office and that Norris gave him "propaganda talks" stating, in substance, that when the employees belonged to an uriaifiliated• organization they were represented by their "own buddies" but they would have no representatives if they belonged to an "outside" organization ; and in an unaffiliated organization the members knew what was becoming of their money because dues were kept within the membership instead of being given to some "outside" organization. According to Weyer, Norris stated.at a meeting between representatives of the Association and the respondent that he would "bend over backwards to keep dealing with the independent union." Weyer also testified that Norris sent him a letter dated September 2, 1941, enclosing a bulletin from the National Metal Trades Association regarding union security or closed-shop contract clauses. In this letter Norris reminded Weyer that he had frequently expressed the respondent's opposition to the closed-shop principle and he thought the bulletin "might be of considerable interest" to Weyer, the Asso- ciation's president, and Alfred McCaghren and Henry Ely, the editor and assistant editor of the Association's publication, The Leader.'= Norfis did not appear to deny the statements and conduct related above. The undersigned credits Weyer's tes- timony and finds that Norris made the statements and engaged in the conduct attributed to him by Weyer. In addition to the foregoing, there is other.evidence of the respondent's favor- itism; for the Association. During one of the conferences between representatives of the respondent and the Association at which a seniority plan was being dis- cussed, Norris promised to, and later did, supply the Association with the senior- ity plans adopted by,the management and the unaffiliated unions at the Lennox Furnace Company's Syracuse and Marshalltown plants. They were used as the model for the oral seniority agreement between the respondent and the Associa- tion. On August 17, 1941, the respondent held a picnic for its employees. On that occasion Norris introduced the Association's officers to the employees present' 'and stated that the editor of the Association's publication was doing "a good job." The respondent donated space and electricity for the operation of two or three coca cola vending machines in the plant, the profit from which went to the Association. The members of the Association had the option of paying their dues directly to the Association or authorizing the respondent to deduct the dues from their wages and pay it over to the Association's treasurer. About half of the members selected the latter method. The respondent thus assisted the Asso- ciation in the collection of about half its dues through a check-off system. Although the respondent and the Association held regular conferences on grievance matters and entered into a verbal seniority agreement, the respondent and the Association never entered into a written contract or engaged in negotia- tions leading toward such a contract. On October It, 1941, after the Union had filed charges with the Board claiming that the Association was dominated and supported by the respondent, Factory Manager McLaughlin participated in a conference at the Board's Regional Office concerning these charges. Upon his return to Columbus, McLaughlin called Weyer to his office and informed him of the pending charges. On October 16, at a conference between the representa- tives of the respondent and the Association, all of the Association's representa- " Weyer testified that he gave the bulletin to Ely and that Ely and McCaghren stated that they would use portions of it in The Leader. McCaghren testified that he never received the bulletin and that it uas not printed. There is no evidence to the contrary. ARMSTRONG FURNACE COMPANY _ 1 473 tives were, notified of the pending charges and the respondent's representatives stated that they did not know whether the respondent would disestablish the Asso- ciation in accordance with the Regional Director's advice; that if they did decide to do so the Association would be notified ; and in the meantime the respondent would continue to deal with the Association. According to the undisputed and credible testimony of Melvin Koehl, McLaughlin stated that; the Associa- tion did not have 'to disband if it did not want to and that "if it came to court they would take it up and fight it for us." The respondent continued to deal with the Association for several weeks. Finally, Factory Manager McLaughlin sent Weyer a letter dated November 19; 1941, stating that upon advice of counsel the respondent had decided to discon- tinue its dealings with the Association and that a notice to that effect would be posted on November 21. The respondent posted a notice stating that the respond- ent would no longer bargain with, the Association. The date of the posting of this notice is iiot definitely fixed, except for the statement in McLaughlin's letter that it would be posted on November 21. The undersigned finds that, on or about November 21; the respondent posted of notice that it would no longer bargain with the Association. 2. Conclusions as to the Association From the foregoing it is clear that the respondent interfered with, dominated, and supported the formation and administration of the Association. The speech delivered by Norris on May 15, the solicitation in the plant immediately follow- ing it, and the subsequent solicitation in the plant during working hours, in which Plant Superintendent Leonard participated, were invaluable assistance to the Association during its formative period. The respondent, throughout the entire history of the Association, continued to give the Association its moral and financial support. Such support consisted, among other things, of "propa- ganda talks" on the relative merits of affiliated and unaffiliated labor organ- izations ; closing the plant to permit the employees to attend an Association meeting ; introducing the Association's ofihcers, and praising their organizational activity to the employees; donation to the Association of profits from coca cola vending machines; collection of dues through a check-off arrangement; and clear expressions of hostility toward the Union and favoritism toward unaffiliated organizations. Some of these things, separately considered, may be said to be trivial; col- lectively viewed, they are significant. They were of immeasurable assistance coming, as they did, on the heels of Norris' May 15 address to the employees. As the Supreme Court has had occasion to note : Known hostility to one union and clear discrimination against it may indeed make seemingly trivial intimations of preference for another union powerful assistance for it. Slight suggestions as to the employer's choice between unions may have telling effect among men who know the conse- quences of incurring that employer's strong displeasure.13 The undersigned finds that the respondent dominated and interfered with the formation and administration of the Association and contributed support to it, and thereby -interfered with, restrained, and coerced its employees in the exer- cise of the rights guaranteed in Section 7 of the Act. 13 International Ass'n of Machinists V. N. L. R. B., 311 U. S. 72, 73. 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Interference with, domination, and support of the independent ; the rela- tionship between the Independent and the Association 1. History of the Independent On October 16, 1941 , the respondent notified the Association 's committee of the pending charges of domination and suggested the feasibility of forming a new organization to replace the Association. Weyer and Koehl testified in substance that on that occasion Newton S. Hoerle , at that time the respondent's general manager, stated that the Association did not have to disband, that the respondent was dealing with its employees and not with any labor organization, that similar charges had been made with respect to an unaffiliated organization at another company with which Hoerle had been associated prior to the time he became the respondent's general manager, and that the employees there formed a new organization with none of the officers of the old one and that the new organization had had no difficulties with the Board. According to Weyer, Hoerle further stated that he could not make any suggestions with respect to the formation of a new organization but suggested that changes similar to those made at the company to which he had referred would permit the respondent to recognize and bargain with the new organization. Hoerle cautioned the Association's committee that the organization must be "entirely new" without any of the officers of the old organization participating in its organization, and assured the committee that after such a reorganization the Board "couldn't hold the charges-at all" Hoerle testified that he had been factory manager of the Easy Washing Machine Company prior to his association with the respondent, and that that company had had an employees' representa- tion plan and subsequently an unaffiliated union which had been certified by the Board. He could not recall discussing the matter at the October 16 meeting, but testified that the situation at the Easy Company "was so fresh in my mind . . . it, would be a natural thing for it to come out in conversation." In view of Hoerle's failure to deny the remarks attributed to him, and his admission that the situation at the Easy Company probably was discussed, the undersigned credits the testimony of Weyer and Koehn and finds that Hoerle, in substance, suggested the formation of a new unaffiliated union." Weyer testified that during the week following the conference at which the Association had been notified of the pending charges, he talked to Factory Manager McLaughlin and Vice-President Norris about the possibility of form- ing another organization. According to Weyer, McLaughlin stated that he could not advise the employees what to do but that he made about the, same suggestions as Hoerle had made at the conference. Weyer testified that Norris called him to Norris' office and stated that if a new organization was formed the officers of the old organization could become members of the new, but that the new organization should have different officers. Weyer's testimony is un- contradicted. The undersigned credits it and finds that McLaughlin and Norris, as well as Hoerle, made suggestions for.the organization of -a new union. Weyer testified without contradiction that Factory Manager McLaughlin suggested that he talk with Slattery about forming a new organization. The 14 Alfred McCaghren testified that Hoerie said nothing about another plant where ari unaffiliated organization had reorganized . Leonard testified that formation of a new organization was not discussed . Leonard later testified that lie did not hear Hoerie say anything, then still'later, that Hoerle said something but lie did not remember what and that he was not sure he was present for the whole meeting . In view , of the . credited evidence of Weyer and Koehl concerning Hoerle's statements and Leonard's confusion as to Hoerle's participation in the discussion at the October 16 meeting, the undersigned does not credit McCaghren 's and Leonaid's testimony on this point. ARMSTRONG FURNACE COMPANY 475 respondent failed-to call McLaughlin as a' witness and offered no explanation of its failure to do so. The undersigned credits Weyer's testimony and finds that McLaughlin suggested to Weyer that he and Slattery consider the formation of a new organization. Weyer and Slattery discussed the matter and agreed that Jim Knight should be president of the new union. According to Slattery Is undisputed and credible testimony, Weyer informed him of the charge that the respondent had dominated and supported the Association and stated that, "Wei" 'would have to start, probably, a new organization . . ." This conver- sation took place in the plant during working hours. Slattery further testi- fied, and his testimony is credited, that "the majority of our people 1" were talking about Jim Knight at the head of anew organization." During the last week in October, Weyer and Harry Carpenter, while at the plant during working hours, spoke to Knight about the matter, and Weyer suggested to Knight that he should be the president of a new organization. He told Knight that Slattery would arrange a conference with an attorney and asked Knight to attend such a conference. Knight agreed to do so. The following night-Weyer, Slattery, and Knight went to the office of Barton Griffith, a local attorney selected by Slattery, and asked his advice as to whether they should fight the charges which had been filed with the board or organize a new union. Griffith stated that he would get a copy of the charges from the respondent's attorney, investigate the matter, and inform Weyer, Slattery, and Knight of his conclusions. Three or four nights later Weyer, Slattery, Knight, and Harry Carpenter again met with Griffith and were ad- vised by Griffith that he had investigated the charges and had concluded that it would be better to start a new organization without "a curse on you." No decision with respect to the formation of the organization was reached at this meeting Griffith told Weyer on this occasion that officers and others who had held positions of leadership in the Association could hold no office in the new organization until the lapse of at least one year. On November 3, Knight went throughout the plant during working hours, selected several employees in the different departments, and asked them to meet him that night at the Riverside Grill. That night about 10 employees met at the Riverside Grill. Knight told the others that he had seen a letter which Mc- Laughlin had written to Weyer summarizing the charges of domination and support which the Union had filed, stated that Weyer and Carpenter had asked him to form a new union, told them he had conferred with an attorney, and asked them to accompany him to another conference with the attorney and decide whether they should form a new organization. Knight stated that he did not know how long the Association would be able to "carry on" and that he thought it best to form a new union. On November 6, the employees who had met with Knight at the Riverside Grill on November 3 conferred with Griffith, who stated that the employees could "fight the charges or else form a new union" and those present decided upon the latter course. They then retained Griffith as their counsel and elected temporary officers. Knight, William Vaughn, Ely and Norman Koehl were elected temporary president, vice president, secretary, and treasurer, respec- tively. knight appointed those not elected to temporary office to act as tem- porary departmental representatives or "councilmen " On November 12, another meeting was held at Griffith's office. Those present signed Independent membership cards and adopted a constitution. Knight designated certain employees to solicit members and gave each of them a list "Emphasis added. 10 Emphasis added. 476 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD of the employees they were to solicit. The Independent's membership cards contained a provision., authorizing the respondent to deduct 50 cents per month dues from the wages of the Independent's members and pay it over to the Independent's treasurer. When the employees were. solicited. to join the Inde- pendent they were presented with two identical membership cards and were asked to sign the cards in duplicate. Every employee who joined the Inde- pendent was compelled to authorize the deduction of his dues from his wages, since one copy.of -each card was given -to the respondent for dues check-off purposes. Thus the respondent collects the Independent's dues and thereby assures it a regular and'certain monthly income. On December 6,•a general meeting was held at Townsend Hall and permanent officers were elected. Knight, Vaughn, Ely, and Koehl were elected to the same offices they had held as temporary officers. On December 8, a committee of the Independent, at a conference with Mc- Laughlin, stated that the Independent represented a majority of the employees and would like to submit their membership cards to be audited by a disinterested person as proof of their claim. It was agreed that a local minister should check the'Independent's membership cards. This was done the following week and the check showed that a majority of the employees had joined the 'Inde- pendent. On December 11, the respondent, by a letter bearing that date, recognized the Independent as the exclusive collective bargaining representative of its production employees.17 From that date until the hearing herein the respondent has bargained with the Independent, entering into a written contract with it on May 28, 1942. 2 The Independent as successor to the Association The impetus for the formation of the Independent came from the suggestions of Hoerle, McLaughlin, and Norris , that the Association could purge itself of its infirmities by a reorganization by employees who were not active in the Asso- ciation's affairs. The credible testimony concerning the suggestions of these three officials leads to but one conclusion-the respondent was anxious to preserve the Association in a -form which would not disclose its real, identity. It was interested in the simulation , not the substance, of freedom of action by its employees . The respondent 's suggestions for reorganization were followed ; its admonitions to -avoid appearance of identity between the old and the new organizations were not. By either of two tests-first, the identity of those active in both organizations, and second , the timing of the, formation of the Independent with the simul- taneous dissolution of the Association-it is clear that the Independent is the Association's direct successor. First, many of the organizers and leading members of the Association were active in the formation of the Independent and some of them later became its officers and council members. Knight, the Independent's president and leading organizer, had been the Association's temporary vice president . Vaughn, one of the Independent's organizers and its vice -president, at whose home many of the Independent's early organizational meeting were held, bad actively par- ticipated in the formation of the Association , was a temporary and permanent councilman in the Association , and many of the Association 's council meetings were held at his home . Ely, one of the Independent's organizers and its secre- tary, had been the assistant editor of The Leader, the Association's publication. 17 The respondent later posted in the plant a notice of recognition dated December 22, 1941. According to Knight's testimony , this notice was posted at his request some time after the Independent had been recognized. ARMSTRONG FURNACE COMPANY - - - _ '. 477 Knight and-Wright published the Independent's bulletin ; McCaghren, the Asso- ciation's temporary secretary-treasurer," its permanent secretary, one of its permanent councilmen, and the editor of its publication, mimeographed the bulletin on the mimeograph machine which the Independent had indirectly pur- chased from the Association" Slattery, who selected the Independent's attorney,, was one of its organizers, an active solicitor for new members, and its council- man-at-large representing all the small departments, and at whose home many council meetings were held, had been the Association's "biggest -membership driver" and some of the Association's organizational meetings had been, held at his home. Weyer, whose part in initiating the formation of the Independent has already been noted, was permanent president and a permanent councilman of the Association. He talked to 30 or 40 employees about the Independent and told them "it was all right to sign over into the new union." Carpenter, who, together with Weyer, had talked to Knight about forming the Independent and had guided him through the first conferences with Griffith, shad been an organizer, and charter member of the Association as well as one of its councilmen. Walter Smith, who participated in the organization of the Independent and solicited employees to join it, was a charter member of the Association, had attended at least one of its first organizational meetings, and had solicited employees to join it. Second, there was no clean break between the Association and the Independent. Nor was there any elapsed time between the dissolution of the old organization and the formation of the new during which the employees 'were made aware of their freedom to act as they desired. Indeed, the formation of the Independent was started as soon as the Association's leaders became aware that the Associa- tion's infirmities were known to the Board, but the Association continued to function until the Independent was ready to takeover. The Association was still acting as the employees bargaining representative at the time Weyer and Carpen- ter spoke to Knight about forming the Independent, and while Weyer, Carpenter, Slattery, and Knight were conferring with Griffith. Knight testified that the Independent was organized and ready to function before the respondent posted its notice that it would no longer deal with the Association. According to McCaghren's credible testimony, at the Association's last general meeting held after McLaughlin had notified its representative of the pending charges, there was a discussion as to the course which should be taken. Some members wanted to contest the charges, but several members stated that they desired "to just let the whole thing drop and to start another organization." The members of the Association, however, never voted to dissolve. Two wit- nesses for the Independent, Vaughn and Wright, testified that the first knowledge they had that the Association was to dissolve was the discussion to that effect at the Independent's organizational meeting on November 3. The formation` of the Independent'is epitomized in Weyer's succinct and credible testimony: "Well, the new organization-we got the wheels of it going and drew-the membership from the old union into the new union and just drained the membership from one union into the other." The organizers, officers,'and leading members of the Independent had, almost without exception, been leading members of the Association, and the Independent was organized and_ ready to function at least.-two weeks before the respondent 28 McCaghren testified positively that he was the temporary secretary-treasurer. Weyer testified that RobertrHenry was treasurer,and that he thought Ely was the secretary. In view of Weyer's uncertainty as to Ely, the undersigned credits McCaghren's testimony that he was secretary-treasurer. 19 During the' dissolution of the Association, Ely purchased the mimeograph machind from the Association for $15, and shortly thereafter"sold'it'to-the Independent for $20. 478 DECISIONS OF-NATIONAL. LABOR RELATIONS BOARD posted the November 21 notice that it would no longer bargain with the Associa- tion. It is clear from the context of this notice 20 and the time at which it was posted that the respondent, purporting to notify its employees of the disestablish- ment of the Association, in fact used the notice to express to its employees its continuing preference for an organization similar in type to the Association., Under these circumstances the employees could not be expected to consider the Independent anything but the Association, revamped and renamed. It is a reasonable inference, moreover, that the leaders of the Independent who had been leaders of the employer-dominated Association would be considered by the em- ployees to be representatives of management .'a The Independent appeared to be the successor of the Association, for it emanated from-those who had -been active in the Association. During the formative stages of the Independent the respond- ent did nothing to mark the separation of the two organizations. This the respondent was required to do if the Independent was to-escape the stigma which attached to the Association. The respondent had a duty, which it failed to discharge, to make it plain to the employees that it had ceased to favor one type of organization over another and that the Independent did not enjoy the sunshine of the respondent's support, as had the Association. Otherwise, in cases such as the instant one, "the Board may, take it as datum, in the absence of satisfactory evidence to the contrary, that the employees will suppose that the company approves the new, as it did the old, and that their'choice is for-that reason not as free as-the statute demands." 22 The undersigned finds that the Independent is the direct successor of the Association ; that it is the beneficiary of the impetus and support the respondent had given to the Association ; that the respondent, therefore, dominated and 20 The notice in full is as follows : NOTICE TO EMPLOYEES On October 15, 1941, I called a meeting of our employes and advised you that Mr. Phillips, representing the National Labor Relations Board in Cincinnati, had told Mr. McLaughlin that he considered that the Company had influenced the organiza- tion of Armstrong Employes Association. I told you that I felt that the Company had acted in good faith and in a kindly spirit towards the employes who wished to organize and that the Company had not disobeyed any law. I told you that we would tell you frankly if we decided on any change in our position. The charges against the Company are based on affidavits of some of our employes who charge that the Company attempted to influence employes to join the Associa- tion and contributed advice and assistance in its formation. Some of the other charges are that members were signed up during working hours, the factory was closed during the election and that the Association got the profits from the Coca Cola machines Some of these charges are trivial, some immaterial and some untrue. Nevertheless we are advised by counsel that in view of the attitude of Mr Phillips we should withdraw recognition of the Association. Accordingly all employes will take notice that after today the management cannot bargain collectively with the Arm- strong Employes Association. - The long established policy of this company has been one of friendliness and cooperation with all employes and this policy will be observed in the future to the fullest extent permitted to the Company by the law. In keeping with this policy the management will discuss grievances with- any, employe or group of employes, however organized . The law guarantees to every employe the right to decide whether he will act for himself or join a union or other organization of employes. This right will be respected by the management and there will be no discrimination, favoritism or coercion practiced by the Company toward any employe no matter what employes' organization he may join or whether or not he joins any organization. • n N. L.,R. B. v. Thompson Products, Inc., 130 F. ( 2d) 363 (C. C. A. 6). - 22Westinghouse Electric d to. Co v N. L. R B., 112 F. (2d) 657 (C. C. A. 2), aff'd (per curiam ).312 U. S. 660.. See also: N. L. R. B. v. Link-Belt Co.,'311 U. S. 584; and the Thompson Products case, supra. ARMSTRONG FURNACE COMPANY 479 interfered with the formation and administration of the Independent and con- tributed support to it; and that by such conduct the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. It is further found that the contract dated May 28, 1942,, between the respondent and the Independent is an agreement made with an organization not freely chosen by the respondent's employees as their collective bargaining, representative and constitutes an illegal interference with the exercise of the rights guaranteed employees in Section 7 of the Act. C. The lay-offs and the discharge 1. The lay-off of Shaffer and Stamper On October. 23, 1941, the respondent had approximately 198 production em- ployees. Twenty-seven of these had signed union membership cards. One hun- dred eighty-one had signed Association membership cards. On October 23, the respondent laid off 70 production employees, including Roy Shaffer and Earl Stamper; whose lay-offs are claimed to have been discriminatory. Of the 70 laid off, 9 had signed union membership cards. Sixty-two of the 70, including 6 of those who bad signed union cards, had signed Association cards. Of the 128' employees retained after the October 23 lay-offs, 1S had signed union membership cards, 119 had signed Association membership cards. It thus appears that ap- proximately 35 percent of all the respondent's production employees were laid off on October 23, that approximately 33 percent of the Union's members were laid off, and that approximately 34 percent of the Association's members were laid off There is no claim that the October 23 lay-off was a general discriminatory move against the Union. It would be difficult to sustain such a claim in view of the above-stated comparative figures. The selection of the men to be laid off on October 23 was made pursuant to an oral seniority agreement between the respondent and the Association. It pro- vided that lay-offs should be' made within a particular department according to the needs of that department, but that seniority within that department should be determined by the employee's original hiring date. It also provided that the seniority rule should be modified by the employee's relative ability and that an employee could be transferred back to a previous position if such transfer did not displace any employee capable of doing the work in that department. On October 23, representatives of the respondent and the Association met and dis- cussed the cases of those who were to be laid off, addressing themselves partic- ularly to those employees who had been selected for lay-off despite the fact that they had more seniority than some of those retained. The representatives of the Association made the final decision as to whether or not a particular em- ployee should be laid off. According to the credible and undisputed evidence, the union membership of the employees to be laid off was not discussed at this meeting The lay-off of Shaffer and Stamper must be considered against this general background. Roy Shaffer joined the Union on May 13, 1941, during its initial membership drive. He was active in the Union's organizational campaign. He successfully solicited union membership of 10 employees and became an alternate committee- man on the Union's shop committee He wore his union button in the plant. Plant Superintendent Leonard admittedly saw Shaffer wearing his union button and knew that he was a member of the Union.. Shaffer was first employed by-the respondent on April 2, 1941,. as a carpenter in the crating and shipping department, where he made shipping crates for fur- naces. During the latter part of May 1941, he was laid off for about three weeks 480 DECISIONS- ,OF NATIONAL LABOR: RELATIONS BOARD because of slack work. He was recalled to work in the 'shipping' department, where he remained until his lay-off on October 23. : _ On October 23, there were 43 employees in the shipping department. Twenty- of these, -including 6 union members, were laid off Of the 23 who were retained,: 7 were union members. Two employees who were doing work similar to that of, Shaffer'were retained after the lay-offs. One of them had more seniority,than, Shaffer and no question is raised as to his retention in preference to Shaff`er.t Counsel for the Board argues, however,' that' the retention of the other, Rollie, Ford, was a departure from the standards generally applied in the selection of men for lay-off and therefore indicates discrimination against Shaffer On the respondent's lay-off list Ford is designated a semi-skilled carpenter, while Shaf- fer is designated an unskilled employee in the crating department. Although the respondent's lay-off list states that Ford was first employed by the respondent on February 1, 1941, counsel for the Board and the respondent stipulated at the hearing that Ford was employed as a carpenter in construction work at and, about the respondent's plant from July 6 to August 30,,1939,' that on the latter date he was laid off, and rehired on November 22, 1940, as a laborer on construc- tion work, where he remained until September 8, 1941, at which time he was transferred to the crating department as a carpenter, and that during all of this time he was, according to the respondent's records, on the respondent's pay roll., The peculiar nature of Ford's duties and his relation to the respondent prior to, September 8, 1941, raise some doubt as to the respondent's good faith in retaining him in preference to Shaffer at the time of the October 23 lay-offs. iThe evidence„ -however, does not warrant a finding that Shaffer was discriminatorily laid off. This conclusion is based primarily upon the absence of a general, discrimination, against union members in the October 23 lay-offs ; the fact that other members of the Union were retained although they too wore their union buttons in the plant and were almost as active in the Union as was Shaffer ; and the fact that Shaffer was laid off and recalled in the latter part of May after his union mem-, bership was known to, the respondent. It is reasonable to assume that if the respondent desired to rid itself of Shaffer it would have failed to recall him to work in May 1941 when the Union was seriously threatening to organize the em- ployees rather than waiting until the latter part of October, at which time the activity of Shaffer and the other employees on behalf of the Union had subsided. The undersigned is not unmindful of the fact that the lay-off occurred during the dissolution of the Association and the formation of the Independent. There is no evidence, however, of a resumption of union activity which would supply a discriminatory motive for the lay-off In view'of these considerations, the under- signed finds that Shaffer's union membership and activity was not the reason for his lay-off on October 23. - Earl Stamper was one of the employees who initiated the formation of the Union. He wore his union button in the plant. He became the Union's first president. - Stamper began working for the respondent on August 26, 1940, as an unskilled employee in the shipping department. Upon his request for piece-rate work he was transferred to the steel shop. When he made some complaints about work- There is some dispute in the evidence as to the particular work Shaffer was doing in the shipping department at the time he was laid oft. The respondent's list of the em- ployees laid off on October 23 designates Shaffer an unskilled employee in' the crating department. Shaffer testified that he was working in the crating department at the time of the lay-off. Leonard testified that Shaffer , was handling castings in another sub- division of the shipping department The undersigned does not credit the testimony of Leonard and finds , in accordance '-with Shaffer's testimony and the respondent's lay-off list, that Shaffer at the time , he,was laid off was , %working in the crating department. I ARMSTRONG FURNACE COIVIPANI • 481 ing at night in the steel shop, he was transferred back to the shipping depart- ment, where he worked with another employee converting furnaces to air con- ditioning units. In the fall of 1941, work on the air conditioning furnaces became slack and Stamper was sent back 'to the steel shop as a weld grinder, an unskilled employee who is required'to remove the excess weld from furnaces. 24 He re- .inained,on this job until he was laid off on October 23 On October 23, there were 83 employees in the steel shop. Twenty-seven ,employees, including Stamper, were ]aid off. He was the only member of the Union who *as laid off in that department ; the only other member of the Union in that department was retained. Of the 55 employees retained, 14 had less seniority than Stamper. Of these 14, one was a skilled snout fitter, 12 were semi-skilled employees, and one was a janitor to whom the seniority agreement was not applicable. According to McCaghren's credible and undisputed testi- mony, each of these 14 positions and Stamper's ability to fill them was discussed -at the October 23-lay-off meeting and it was decided that he was not qualified for any of them There is no evidence that Stamper was qualified to fill any of the positions occupied by those employees who were retained despite their lack of seniority. , !Stamper and Shaffer were laid off on the same day. What has been said above with respect to the'absence of a discriminatory motive for Shaffer's lay-off is equally applicable to Stamper's case. The undersigned finds that the respondent laid off Shaffer and Stamper on October 23, 1941, in accordance ivith the current standard of seniority and rela- tive ability, and for the reason that the respondent's business was seasonably depressed, and that the lay-offs were not inade because of Shaffer's and Stamper's membership in or activity on behalf of the Union. 2 The Discharge of William Quigley Quigley joined the Union on May 17, 1941. He wore his union button in the plant from the time lie joined the Union until the October 23 lay-offs. He at- tended union, meetings regularly and solicited other employees to join the union. Quigley began working for the respondent on August 20, 1940, as a drill.press operator in the casting department In October 1941, lie was transferred to handling castings in the receiving department where he worked for several weeks, at the end of which time he was transferred to the stockroom, where he remained' about 6 weeks until he was discharged on April 23, 1942 26 Stamper's work on the air conditioning furnaces required him to go throughout the plant to collect the vauous parts of these furnaces He testified that while he was doing this work he was closely watched and that when he was transferred, to the steel shop, Factory Manager McLaughlin told him that he was being transferred because he spent 'too much time talking to other employees on these trips throughout the plant. Stamper also testified that.before he was transferred from the air conditioning work he had to train William Vaughn to replace him ' There is no evidence other than Stamper's testimony ,that' he was closely ,watched or that he was ever criticised for talking too much or con- 'sinning too much-time on his trips throughout the plant, or that such conduct was the reason for his transfer to the steel shop The undersigned , does not credit Stamper's testimony, on this point. Nor is there any evidence corroborating Staniper's testimony ,that he had to train Vaughn to replace him According to the testimony of Vaughn, Foreman Bernhard, and Plant Superintendent Leonard, Stamper was actually Vaughn's assistant on the air' conditioning work, Vaughn had trained him to do the work, and • when this work became slack, the air conditioning work was returned to Vaughn in addition to his other duties which lie had acquired while Stamper was assisting him -The undersigned credits the testimony of -Vaughn , Bernhard , and Leonard and finds that -Stamper was transferred from the air conditioning department to the steel shop because of the slack work in the former department and that Vaughn assumed Stamper's former "duties at the,time of Stamper's transter 513024-43-vol 47-31 482 DECISIONS OF 'NATIONAL LABOR RELATIONS BOARD The complaint alleges that Quigley was discharged because of his union mem- bership and activity. - In its, answer, .,the respondent avers that Quigley was discharged because of his inefficiency, neglect of duty, and,insubordination. There is abundant credible evidence supporting the, respondent's claim. Plant Super- intendent Leonard testified that shortly after'the employees in the,casting de- partment were put on a group piece-work basis, the employees who worked in the group,with Quigley complained that he was not doing his share of the work, thereby depressing the, earnings of the entire group. Foreman Homer Coseo testified that he received similar, complaints, and Foreman Martin testified that such complaints ,were made to him about every week and that he reported the complaints to Leonard. Leonard testified that when he brought these , com- plaints to Quigley's attention, Quigley would "stand there and grin at me" and that he "didn't get any place with him (Quigley) " Leonard further testified that because of these complaints Quigley was transferred from his job as drill press operator to handling castings and other material in the, receiving depart- ment. Quigley admitted that when he was transferred from the casting de- -partment to the receiving department Leonard and Martin told him that he was being transferred because of the complaints registered against him by his fellow employees. The undersigned credits the testimony of Leonard, Martin and Coseo, as well as the admission of Quigley, and finds that Quigley was trans- ferred to the receiving department because of his unsatisfactory work in the casting department. Leonard testified that after Quigley started to work in,the receiving department, the receiving clerk complained about Quigley's work and that thereupon-lid Began to check on Quigley's activities and constantly found him away from his work "fooling around; talking to fellows." Leonard testified that he reprimanded Quigley for his conduct on about three occasions, and the last time told him that he was going to transfer him to the stockroom and give "him one more chance. Coseo corroborated Leonard's testimony with respect to the quality of Quigley's work in the receiving department and the reason for his transfer to the stockroom. Quigley admitted that Leonard informed him of the complaints about his work in the receiving department and that he was being transferred to the stockroom in order that he might have another chance to improve his work. Quigley's chief duty in the stockroom was to fill requisitions for material. Leonard and Coseo testified that Quigley did not stay in the stockroom and that the employees complained that they were unable to get their requisitions filled 26 According to the testimony of Leonard, Martin, and Coseo,=-Qui`gl'ey1frequently, left his work early for lunch or returned to work -late''after lunch. 28 Leonard .testified, and his testimony is credited, that he had seen Quigley leave the plant early five or six times and that he warned Quigley about the matter several times. 26 Quigley testified that his duties in the stockroom required him to go to different parts of the plant to get materials. His testimony in this respect is confused and he finally excused his absences from the stockroom by testifying that Coseo sent him on errands. Leonard'testified that Quigley's duties did not require him to leave the stockroom. Coseo admitted that he sometimes sent Quigley on errands but testified that this did not account for his many absences from his work Coseo further testified that on many occasions he had to locate Quigley and send him back to the stockroom and that on one occasion in the middle of the morning he found Quigley in the washroom talking to another employee, where he remained for 15 or 20 minutes and ignore&Coseo when he told him to return to the stockroom. The undersigned credits the testimony of Leonard 'aiid' Coseo'and `finds that Quigley was absent from the stockroom on many occasions when his duties did not re- quire it 26 Quigley denied that he left the plant early, except on one or two occasions, and testi- fied that the reason for doing so then was that he could not hear the whistle in his de- partment.' Leonard and Martin testified that none of the other employees left early for lunch. There is no evidence to the contrary. The undersigned credits the testimony of Leonard and Martin. ARMSTRONG FURNACE COMPANY 483 Leonard testified that about one week before Quigley was discharged Coseo complained that Quigley again lift the stockroom early at lunch time and stated that he could not keep Quigley in the stockroom any longer. Leonard then warned Quigley that the next time he had to be warned about anything he would be discharged. Leonard further testified that on April 23. the day of Quigley's discharge,, he saw Quigley leaving early for land, and that he called him back and made him wait until the whistle blew Quigley testified that on that day he was called to Leonard's office, where Leonard reminded him that he had again left the plant early and thereubon discharged him. Coseo testified that at the time of Quigley's discharge Leonard told Quigley that he had given him a chance in,every department where he thought he could work satisfactorily and told him-that since he slid not fit in any place he was being discharged. From this undisputed evidence and Quigley's admission, it is clear that there were many complaints about Quigley's work in every department in which he worked, that' these complaints were many times brought to Quigley's attention, and that he re- ceived a final warning that continuation of the practices which provoked the complaints would result in, his dismissal. The undersigned is convinced that Quigley's union membership and activity was not the cause of his discharge. Had the respondent desired to rid itself of Quigley it is unlikely that it would have waited until almost a year after the Union had started to organize the employees and until long after the Union's threat to organize the plant had passed. The respondent had numerous occasions during the 6 months prior to the, discharge when it could have dismissed Quigley for bona fide reasons There is no evidence that-Quigley' was engaging in union activity at the time of his discharge which would indicate that the respondent discriminatorily discharged him. The undersigned finds that the respondent, on April 23, 1942, discharged Wil- liam Quigley for cause and not because of his membership-in or activity on behalf of the Union. 3. The lay-off of Cameron Weyer Cameron Weyer was first employed by the respondent on Octobei 1, 1940, as a laborer in the shipping department. On November 11, 1940, he was made receiv- ing clerk in the receiving department, where he remained until about February 23, 1942, when he was transferred to the mounting crew on the night shift. About three weeks prior to his lay-off on April 24, 1942, Weyer was transferred from the mounting department to "brick packing" where he remained until he was laid off. The complaint alleges that Weyer was laid off because of his membership in and.•activity on behalf of the Union. The-respondent denies this allegation and avers in its answer that Weser was laid off because of slack work. . . On April 24, the respondent had approximately 147 production 'employees. Eleven of these had signed membership cards in the Union; 109 had signed mem- bership cards in the Independent. On April 24, the respondent laid off 63 produc- tion employees, including Weyer. Of the 63 employees who were laid off, 5 had signed union cards. Fitty-five of these employees, including 4 of those who had signed union membership cards, had signed Independent membership cards. Of the 84 employees retained, 6 had signed union membership cards; 54 had signed Independent membership cards. It thus appears that approximately 42 percent of all the production employees were laid off on April 24, that approximately 45 percent'of the Union's members were laid off, and approximately 50 percent of the Independent's members were laid off. Here, as in the case of the October 23 lay-'offs, there'was not a•preponderance of union members among those who were laid off Ori April 24 there were 65 employees in the mounting, receiving and warehousing department, where Weyer was working at the time. Thirty-nine 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of these, including 5 union members , were laid off. Of the 26 retained, 3 were union members Seven of the employees who were retained in this department after the lay-offs had less seniority than Weyer. On April 24, representatives of the, respondent and the Independent met and discussed the cases of those who had been selected for lay-off, addressing them- selves particularly to those employees who were to be laid off despite the fact that they had more seniority than some of those who were to be retained. According to the minutes of this meeting and the credible and corroborating testimony of Vaughn-and Leonard, Weyer's case was discussed in detail and it was decided that those employees who were retained in the mounting, receiving and ware- housing department, despite their lack of seniority, were more cooperative and more capable of filling the jobs available in that department than was Weyer, that the employees on the mounting crew where Weyer had previously worked had more seniority than Weyer, and that Weyer should not be transferred back to the receiving department because of his poor work while employed in that department. It is undisputed that there was no discussion of Weyer's union membership at this meeting. It is clear that Weyer's work in the receiving department was unsatisfactory' His duties required him to take care of all received merchandise, check it and weigh it, and' make out reports for the office. Leonard testified that the employees in the office complained that they could not read Weyer's records and that on one occasion Weyer caused considerable unnecessary work and correspondence by leaving some merchandise on the unloading dock when he should have taken it to one of the departments in the plant. Coseo testified that when he took charge of the receiving department, Factory Manager McLaughlin told him that some- thing would have to be done to improve the quality of the work in that depart- ment. Coseo further testified that Weyer habitually' placed his records in his pockets instead of some safe filing place, and that many of them were thus lost. He testified that when he spoke to Weyer concerning this negligent handling of the recoids, Weyer improved for a short time and then reverted to his previous ,habits. Coseo then reported the matter to Leonard and Leonard and Coseo _decided to transfer Weyer from the receiving department. Weyer admitted that of one occasion lie was called to the office and criticized for the way he had mis- handled the parts of two furnaces and the records concerning them. Leonard testified that because of these complaints, Weyer was transferred to handling castings in the mounting department. Weyer's ti paper which was given to him at the time of the lay-off states that he was being laid off for lack of work and because his work in the receiving department was unsatisfactory. Weyer. as we have seen, was one of the organizers of the Association and was active in initiating the formation of the Independent He withdrew from the Independent oh Aril 12 or 13, 1942, and joined the -Union on April 15, 1942. Ac- cording to Weyer's own testimony, he did not wear a union button, and the extent of his union activity was to attend union meetings and to ask "a few" employees to join the Union. The only direct evidence indicating a discriminatory motive in Weyer's lay-off is his own testimony that, on April 17 or 18, Plant Superintendent Leonard asked' him if lie wanted a 5-cent per hour wage increase and,then inquired if, Weyer had "dropped out of the union," 2' and when Weyer answered in the affirmative Leonard told him that there soon would be•other jobs available'in the plant and for Weyer to see John Slattery, an fictive member of the Independent, and "get put back on the right side of the fence and get away from the bad boys." Leonard Weyer, testified that he understood that Leonard had reference to the Independent. ARMSTRONG , FURNACE COMPANY 485 denied making the above statement, to Weyer and testified that he did not know that Weyer had withdrawn from the Independent or that he had joined the Union until a few days after his lay-off, when Leonard saw him, in the compauy`ot other active union members, passing out union literature outside the plant. In view of the fact that Weyer had joined the Union only a few days before the claimed conversation with Leonard is supposed to have occurred, and the fact that Weyer admittedly had not been active on behalf of the Union and had not worn a union button, it is probable that Leonard had no knowledge of Weyer's withdrawal from the Independent or his membership in the Union when he is said to have told Weyer to again loin the Independent The undersigned therefore credits Leonard's testimony and finds that Leonard did not make the statement which W'i'eyer testified that lie had made. In view of Weyer's inactivity in the Union, the unlikelihood that the respondent knew of his union membership, the fact that there was no general discrimination against the Union in the April 24 law-offs, the fact that Weyer's lay-off, despite his seniority over some who were retained, was discussed in detail at the April 24 lay-off meeting with the Independent, and the convincing evidence that Weyer's work in the receiving department had been unsatisfactory, the undersigned finds that the respondent laid off Weyer on April 24, 1942, not because of his member- ship in or activity on behalf of the Union, but rather because of slack work in the department in which Weyer was working at that time and because he was ineligible, under the current agreement with the Independent, for transfer to any other department in which lie had previously worked because of the seniority and superior ability of the employees retained in one of those departments and the poor quality of Weyer's work in the other. IV THE EFFECT OF THE UNFAIR LABOR PR \CTICES UPON COMMERCE The undersigned finds that the activities of the respondent set forth in Section III A and B above, occurring in connection with the operations of the respondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, 'and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce V. THE RLMEDY Since it has been found that the respondent has engaged in certain unfair labor practices, it will be iecomniended that it cease and desist'-therefrom, and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the respondent has dominated and,interfered with the formation and administration of the Independent and has contributed support to it. The effect and consequences of the respondent's domination of, interference with, and support of the Independent, as well as the continuing recognition of the Independent 'as the bargaining representative of its employees, constitutes a continuing obstacle to the free exercise by its employees of tile-rights guaranteed to them in the Act. Because of the respondent's illegal conduct with regard to the Independent, it is incapable of serving the respondent's employees as a genuine collective, bargaining agency. It will be recommended that the respondent disestablish and withdraw all recognition from the'Independent as the repre- sentative of,any of its emplojees for the purpose of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of work, or other conditions of employment. The contract dated May 28, 1942, between the respondent and the Independent, which by its terms is still in effect, has been found to be invalid since it is a means whereby the respondent utilizes an employer-dominated labor 486 DECISIONS OF NATIONAL LABOR ' RELATIONS BOARD organization to frustrate self-organization and to defeat collective bargaining by its employees. Moreover, it provides for exclusive recognition of the Inde- pendent, although at the time the contract was entered into that organization had not been designated by an uncoerced majority of the employees covered by the contract as their representative for the purposes of collective bargaining. The undersigned will recommend that the respondent cease and desist from giving effect to'this or any other contract with the Independent respecting rates of pay, wages, hours of work, or other conditions of employment. Nothing in these 'recommendations, however, shall be deemed to require the respondent to vary or abandon the wage rates or other substantive features of its relations with its employees which the respondent may have established in conformity with the contract, as extended, renewed, modified; supplemented, or superseded It has been found that the respondent has assisted and is assisting the Inde- pendent by collecting its dues through a coercively authorized check-off. It will therefore be recommended that the respondent reimburse all of its employees for all' dues and other fees Which it has deducted from their wages on behalf of the Independent. It has been found that the respondent dominated and interfered- with the formation and administration of the Association and contributed support thereto. Although the respondent has withdrawn recognition from the Association, which is 'presently inactive,, the undersigned finds that the policies of the Act will best be effectuated by a foreclosure of the possibility of a resumption of the Association's activities 'through a requirement that the respondent disestablish the Association. The undersigned will so recommend Since it has been found that the respondent assisted the Association by collecting about half its dues through a check-off system, and is presently collecting the Independent's dues through a coercively authorized check-off, the undersigned finds that the policies of the Act will be effectuated by,, and will therefore recommend, reimburse- 4nent, by the respondent to all its employees for all dues and other fees it has deducted from their wages on behalf of the Association Since the evidence does not support the allegations of the complaint that the respondent discriminatorily discharged William Quigley and discriminatorily discharged or laid.off Roy Shaffer, Earl Stamper, and Cameron Weyer, the undersigned will recommend that with respect to those-allegations the complaint be dismissed. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the.undersigned makes the following : Conclusions of Law 1. United Automobile, Aircraft, and Agricultural Implement Workers of' America, Local #847, affiliated with the Congress of Industrial Organizations, Armstrong Furnace Association, and.Columbus Independent Furnace' Workers Association, are labor organizations, within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the formation and administration 'of the Armstrong Furnace Association and Coluriibus Independent Furnace Work- ers Association and by contributing support to them, the respondent has engaged 21 National Licorice Co v. N. L. R. B , 309 U. S 350, enf'g as mod. Matter of National Licorice Company and Bakery and Confectionery Workers International Union of America, Local Union 405, Gi eater New York and Vicinity, 7 N. L. R. B. 537 ; N. L. R. B v. Stack-pole Carbon Company, 105 F. (2d) 167 (C. C. A. 3), enf'g as mod. 6 N. L. R. B 171, cert. den. 308 U S 605. ARMSTRONG FURNACE COMPANY 487 in and is engaging in unfair labor practices, within the meaning of Section 8 ,(2) of the Act. 3. 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. 4. The•,aforesaid •unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 5. The respondent, (by discharging William Quigley and by laying off Roy Sliaffer, Earl Stamper, and Cameron Weyer, has not engaged in unfair labor practices within the meaning of Section 8 (3) of the Act. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed recommends that the respondent, Armstrong Furnace Company, Columbus, Ohio, its officers, agents, successors, and assigns shall: 1. Cease and-desist from: (a) Dominating or interfering with the administration of Columbus Inde- pendent Furnace Workers Association or with the formation or administration of any other labor organization of its employees, and from contributing financial or other support to Columbus Independent Furnace Workers Association, or any other labor organization of its employees; (h) Giving effect to or performing the contract of May, 28, 1942, with Colum- bus Independent Furnace Workers Association, or any extension or renewal thereof, or to any other agreements, understandings, or arrangements entered into with said organization ; , (c) In any other manner interfering with, restraining, or coercing its em- ployees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will effec- tuate the policies of ,the Act: - (a) Withdraw all recognition from Columbus Independent Furnace Workers Association as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances , labor disputes, wages, rates of pay, hours of work, and other conditions of employment, and completely dis- establish Columbus Independent Furnace Workers Association as such representative - (b) Reimburse all of its employees for all dues and other fees it has deducted from their wages on behalf of Columbus Independent Furnace Workers Association ; (c) Completely disestablish Armstrong Furnace Association as the represent- ative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes; wages, rates of pay, hours of work, and other conditions of employment; (d) Reimburse all of its employees for all dues and other fees it has de- ducted from their wages on behalf of the Armstrong Furnace Association ; (e) Post immediately in conspicuous places in its plant, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating (1) that the respondent will not engage in the conduct from which it has been recommended that it cease and desist in paragraphs Ogg DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1 (a), (b), and (c) of these recommendations;-and (2)-that the respondent will take the affirmative action set forth in paragraphs 2 (a), (b), (c), and (d) of these recommendations ; (f) Notify the Regional Director for the Ninth Region in writing within ten (10) days from receipt of this Intermediate Report what steps the respondent has taken to comply herewith. It is recommended that the complaint, insofar as it alleges that the respondent discriminated against William Quigley, Roy,Shaffer, Earl Stamper, and Cameron Weyer with respect to their hire and tenure of employment, be dismissed It is further recommended that unless on or before ten (10) days from the receipt of this Intermediate Report, the respondent notifies said Regional Director ins writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 2-as amended, effective October' 14, 1942-any party may within fifteen (15) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Shoreham Building ; • Wash ington, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding, (including rulings on all motions and objections)' as he relies upon, together'with the original and four copies of a brief in support thereof. As ,further provided in said Section 33, should any party desire permission to argue orally before the Board, request' therefor must be made in writing to the Board within ten (10) days after the date of the order transferring the case to the Board. WILLIAM F. GurFEY, Jr. Trial Exan miner. Dated: October 27, 1942