Leland Gifford Co.

In the Matter, of LE'AND- GlFFORD Co_, and UNI;rED STEELWORKERS ,or AMERICA (CIO)^5 , Case No. C-24' 21-Decided March 17,1943 Jurisdiction : machine and crankshaft manufacturing industry. Unfair Labor Practices Interference, Restraint, and Coercion: anti-union statements and conduct of supervisory employees, interrogating employees concerning union, threatening members of the union with dismissal, and threatening to discharge anyone who was active on behalf of any labor organization. Company-Dominated Union: formation during strike called by Ian affiliated union ; arrangements concerning its formation made on company time and without opposition by employer ; solicitation on company time and property in violation of long-standing rule against such solicitation ; assistance rendered by foreman who instructed employees where to go to sign designation cards ; payment for time spent away from work on organization's business ; special privilege of leaving plant during shift extended to organization's organizers and repre- sentatives ; closing of plant to permit holding of organization's first general meeting at a time suitable to employees ; participation in organization's meeting of foreman who had signed membership card ; recognition of organization- although its legality had been placed in issue by settlement made with affiliated union at behest of the Conciliation Service ; enhancing prestige of organization by permitting it to control transfers. Discrimination: charges of, dismissed. Remedial Orders : dominated union disestablished, and invalid contract abro- gated. Mr. Robert E. Greene, for the Board. Grant d Angoff, by Messrs. Samuel E. Angoff and Frederick Cohen, of Boston, Mass., for the Union. Mr. Ernest L. Anderson, of Worcester,-Mass., for the respondent. - Vaughan, Esty, Clark cC Crotty, by Messrs. James A. Crotty and George H. Mason, of Worcester, Mass., for the Independent. Mr. Harry H. Kuskin, of counsel to the Board. , At the hearing the Union's motion to amend the pleadings by substituting the name, "United Steelworkers of America ( CIO)," for the name, "Steelworkers Organizing Com- mittee ( CIO)," was granted without objection , upon a showing that on May 22, 1942, at a constitutional convention in Cleveland , Ohio, a new ' constitution was adopted and the Steelworkers Organizing Committee ( CIO) became the United Steelworkers of America (CIO) - 48-N. L. R. B ,,No. 25. 120 0 LELAND-GIFFORD CO. DECISION AND ORDER STATEMENT OF THE CASE 121 Upon complaint issued pursuant to charges- duly filed by Steel- workers Organizing Committee (CIO), affiliated with the Congress of Industrial Organizations, herein called the Union or CIO„ against Leland-Gifford Co., herein called the respondent, a hearing was held before a Trial Examiner in Worcester, Massachusetts, from August 24 to September 8, 1942, in which' the Board, the respondent, the Union, and Independent Union of Employees of Leland-Gifford Co., the inter- venor, herein called • the Independent, participated by their representatives. On November 17, 1942, the Trial Examiner issued his Intermediate Report finding that the respondent had engaged in and was engaging, in unfair labor practices affecting commerce within the meaning of Section 8 (1) and, (2) and Section 2 (6) and (7) of the Act, and that it had not engaged in unfair labor practices in discharging Michael Leo Ryan on February 2, 1942, and recommending that it cease and desist from the unfair labor practices found and take certain'affirma- tive action designed to effectuate the policies of the Act. Thereafter the respondent and the Independent filed exceptions to the Intermediate Report and briefs in support of the exceptions. Oral argument, in which the respondent, the Independent, and the Union participated, was held before the Board on February 2, 1943. . The Board has considered the rulings of the Trial Examiner at the hearing and finds that no prejudicial errors were committed. Except as herein expressly noted, the rulings are hereby affirmed. The Independent sought to introduce testimony that acts of vio- lence directed at the respondent's employees crossing- the picket line occurred during the course of the strike of August 11 to 22, 1941.• Although some evidence of violence was admitted thereafter, the Trial Examiner refused to'admit such testimony when offered in the first instance, and the Independent made an offer of proof. The testimony was not offered to impeach the credibility of any of the witnesses for the Board 2 but for the general purpose of showing "that the 'violence . . . had an effect on the employees and their interest in the Independent." We are of the opinion that this rul- ing of the Trial Examiner was erroneous and that the evidence 2 The evidence of violence adduced was not directed to specific individuals , and neither the respondent nor the Independent sought to ascertain by cross-examination of the wit- nesses for the Board whether they bad any part in such violence. i 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD should have been admitted when tendered; we shall consider the offer of proof as-part of the record. However, the evidence of vio- lence already before us, if not complete, would appear to be char- acteristic of the evidence sought to be adduced and we do not regard the violence as the causative factor ' of the employees' preference for the Independent. .The respondent and the Independent contend in their exce'p'tions and supporting briefs that the Trial Examiner acted improperly and' injudiciously in his rulings on the admission of evidence, in 'his al- leged efforts to hasten the hearing and, ,"cut it as short as possible''- after the Board had presented its case, and in his inferences and conclusions set forth in the Intermediate Report.3 We hater fully reviewed the Trial Examiner's rulings and his conduct of the hear- ing and we find the contentions of the respondent and the Inde- pendent to be without merit.' The Board has considered the exceptions and the briefs submit- ted by^ the respondent and the Independent and the brief` of the Union before the Trial Examiner ,5 and, insofar as the exceptions, are inconsistent with the findings of fact, conclusions of law, and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Leland-Gifford Co., a corporation of the Commonwealth of Mas- sachusetts, is engaged at its plant in Worcester, Massachusetts, - in the manufacture, sale, and distribution of machines and crankshafts. The respondent receives the crankshafts in rough form from within the Commonwealth, and purchases and receives from outside the Commonwealth raw materials consisting of steel products and vari- ous alloys, for use in connection with its manufacture of machines. The- finished crankshafts and over 50 percent of the finished ma-' chines are shipped outside the Commonwealth. The annual sales of- the respondent are in excess of $1,000,000. The respondent admits, for the purpose of this proceeding, that it is engaged in commerce within the meaning of the Act. s The criticism relating to the substantive aspects of the case is considered below in the discussion of the unfair labor practices and of the appropriate remedy. 4 Cf. N. L. B. B v Ed. Friedrich, Inc., 116 F. Pd) 888 (C. C. A. 5) enf'g as mod. 17 N. L. R. B 1 387 ; Matter of Delaware-New Jersey Ferry Company and United Marine Division, Local No. 333, affiliated with the A. F. L. and the I. L. A., 30 N L R B 820; Matter of Ford Motor Company and H. C. McGarity, an individual, et at., 26'N. L R..B 322, enforced as mod 119 F. (2d) 326 (C C A 5) 'The Union did not submit exceptions and a supporting brict before the Board; but relied upon its brief before the Trial Examiner 4 LELAND-GIFFORD Co. 123 II. TILE ORGANIZATIONS INVOLVED United Steelworkers of America (CIO) is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership employees of the respondent. Independent Union of Employees of Leland-Gifford Co. is an unaffiliated labor organization admitting to membership only em- ployees of the respondent. , III. THE UNFAIR LABOR PRACTICES' A. Liter f erence, restraint, and coercion; background of the strike of August 11, 1941 Sometime in May 1941, Thomas Fox and several other employees of the respondent met with an organizer for the Union and decided to try to organize the employees of the respondent through per- sonal solicitation. Within a few days of the original meeting of this 'group, the respondent voluntarily raised the wages of its em- ployees 5 cents per hour. Fox testified that the organizational activity abated as a result of the wage increase. Enthusiasm for the Union revived about the middle of July 1941; during the latter part of the month the respondent became aware of the Union's attempt to organize the plant. Shortly after employee John Connor joined the Union on July 20, Foreman James Kneeland 6 his brother-in-law, visited Connor's home and discussed the Union with him. This visit constituted only the fourth time in 12 or 15 years that Kneeland had been "in the presence" of Connor socially, inasmuch as there had been "family trouble" between the Connors and the Kneelands, and Kneeland had opposed the employ- ment of Connor 4 years before. Connor testified that Kneeland stated that he wanted to talk to Connor about the Union, that he had heard that there was a lot of CIO activity in the plant, and that Connor was at the head of it. When Connor denied the truth of the latter part of Kneeland's statement, Kneeland stated that the respondent would not stand for any union, that it would do everything in its power to keep the Union out of the plant, and that it would discharge anyone who was, engaging in union activities regardless of his family relationships. Kneeland offered to shake hands and forget the whole matter if Connor would assure him that he was not the leader of the CIO. Connor did so, and the men shook hands. Although Kneeland denied that he mentioned the Union during this visit to Connor's home because he "always avoided shop talk" away from the plant; he was unable to recall either the rea- e Kneeland was also referred to by the respondent as "proCCuction manager." 124 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD son for the visit or the conversation which occurred there. In view' of Kneeland's indefiniteness on the subject and the positive testi- mony of Connor, we find, as did the Trial Examiner; that the-facts- are substantially as testified to by Connor. . _ Employee Michael Leo Ryan testified that shortly after he was hired by the respondent on July 20, 1941, through , the assistance of Kneeland, the latter told him that he would discharge anyone who 'joined any union. He testified further that a few days later Knee- land asked him whether he had heard any conversation about the Union. Ryan, who had become a union member at the solicitation of Connor, denied having heard any' such conversations but, at Kneeland's request, agreed to try to find out about the Union. On two subsequent occasions Kneeland, requested Ryan to ascertain how -many employees had attended a certain CIO meeting and who was the leader of the Union. With, Connor's permission, Ryan told Kneeland that about 150 employees had attended the meeting and that Connor was the head of the CIO. Connor corroborated Ryan's testimony as to the messages sent back to Kneeland., On the after- noon of the day of Ryan's report about Connor, the respondent laid off Connor for the asserted reason of lack of work. Connor testi- fied, however, that at the time of his lay-off, there was work at his in which had' to be finished. On the following day, Thomas Fox was summarily laid off. Although Kneeland denied having talked unionism with any em- ployees and having made the above requests of Ryan, he did not deny having made the- threat to, discharge anyone who joined any union. The Trial Examiner, who heard and observed the witnesses, did not credit they denial of Kneeland in view of the general vague- ness of his testimony. We credit the testimony of Ryan, as did the Trial Examiner, and find the facts substantially as testified to by him. Employee Charles Creighton testified that about the first of Au- gust 1941, Foreman Gilbert Burl asked him and employee Arthur Thibeault if they had been approached by any union and ordered them to report to him if anyone spoke to them on the subject. Al- though Burl did not remember making the inquiry, he denied having given any such order. A few days before August 11, 1941, Burl told employee Homer Rock that he wanted Rock 'to work nights instead_ of days, whereupon Rock asked if this transfer was caused by his activities on behalf of the Union. Burl testified that 'he answered, "You do your own thinking. I am trying to run my department efficiently. I have no time for it." According to the testimony of Rock, Burl gave as the reason for the transfer the fact that Rock had been "monkeying around with, the C. I. O.' ... that some- body was doing his thinking for him." Although Burl denied mak- LELAND-GIFFORD CO. 125 ing this, last statement, his testimony, except for, the denial, cor- roborated that of Rock. Rock testified further that later during the' same day Burl informed him that the respondent "had them fellows' [C. I. 0.] names in the office" and "they will dispose of you fellows one way or another." Burl denied ever,having threatened to dis- charge Rock for union activities, stated that he had never seen any list of CIO members, and was unable to recall making any statement relating thereto. The Trial Examiner, who heard and observed the witnesses, did not credit the testimony of Burl. We credit the testi- mony of. Creighton and Rock, as did the Trial Examiner, that Burl made the statements attributed to him by them. Beginning with the latter part of July 1941, and continuing until August 11, the respondent discharged or laid off a number of known union adherents. Among others, "Slivers" Anderson was laid off the latter part of July and Connor and Fox, as found above, were laid off on August 8 and 9, respectively. In all, the Union contended that about 12 of its members had been discharged during this period be cause of their union activities. On August 11, 1941, the Union struck because of, the above-mentioned discharges and lay-offs, and began picketing the respondent's plant. According to the testimony of employee William DeCelle, whom we credit,'Foreman Elmer Lindquist told him during the course of the strike that working conditions for the strikers would not be good when they returned. Indeed, Night Superintendent Jerry Leland testified that when he was asked by employee Butler in September or, 'October 1941 to secure a trahsfe'r•for Butler "as a favor," he replied, "Are you asking me to do you a favor? ... Didn't I see you on the picket line? Don't ask me to do any more favors for you. As long as you work-here you will have to earn anything you get from now on." Leland testified further that Butler had subsequently received wage increases which he had "sure earned." We find that by, the anti-union 'statements and conduct of Foremen Kneeland, Burl, and Lindquist 'and Night Superintendent Leland, the respondent ' has interfered with, restrained; and coerced its em- ployees in the exercise of the rights guaranteed in Section' 7 of the, Act. B. Domination and interference with the, formation and administra- tion of the Independent 1. The formation of the Independent Employee Michael Abbruzzese and his friends and fellow grinders at the plant, Thomas Doherty, James Garrity, William Carrow,T' and Angelo Trippi, testified that for a period 'of more than' a year; P At various places in the transcript Carrow' s name was incorrectly spelled either, "Caro" or "Carow 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD prior to August 1941 they had been discussing the matter of "getting the grinders together." They had, however, exercised extreme cau- tion in their conversations; with one exception, it was not until August 11 that they even used the words "organize" or "union." Moreover, they were extremely careful as to whom they talked, for fear of speaking to a "stooge." In fact, so carefully had this attempt to organize the grinders been'concealed that Abbruzzese was dis- charged by the respondent on July 31 upon the apparently mistaken belief that he was soliciting and organizing for the Union.8 As here- inafter found, the idea of an independent organization composed of all of the respondent's employees, rather than of the grinders only, did not take root until the first night of the strike and coincided with Abbruzzese's reinstatement by the respondent at that time. Doherty and Garrity reported at the regular time for the evening shift on August 11, the first day of the strike. After punching the time clock they left the plant to mingle with the strikers, where Gar- rity learned that the Union was striking because of the respondent's practice of discharging men without explanation. Garrity spoke to Foreman Dan Shea and told,-him - that he -was going to "stay- out" until the respondent gave Abbruzzese a reason for his discharge. While Garrity was conversing outside the plant, Doherty informed him that Leland had been heard to say inside the plant that anyone who knew where Abbruzzese lived should summon him to work. Thereupon Garrity and Doherty, accompanied by Carrow, drove to Abbruzzese's home, where they convinced Abbruzzese that he should return to work, pointing out that this would be a good time to carry out their, "plan . . . to get the grinders together." Abbruzzese agreed to return-to the plant but stated that he was not going to touch a machine until Leland gave him a reason for his discharge. On the way to the plant Abbruzzese telephoned to Trippi, a grinder who worked on the clay shift, inquired how many grinders were working on the day shift, informed Trippi that Abbruzzese might go back to work, and stated that Trippi should see Doherty. The men arrived at the plant between 8 and 9 p. -m. Doherty, Gar- rity, and Carrow went back to their work and Abbruzzese proceeded to secure a badge and a time card. At that time Abbruzzese met Superintendent William Leland who apologized for discharging him. After some discussion about being paid for time lost that night and during the period of his discharge, Abbruzzese went to his machine. 8 On July 30 Abbruzzese used the word "organizer" at the plant during his conversation with his friends On the same evening he saw Foreman Kneeland searching the lockers of the individual employees. That evening Abbruzzese' left, a note on his machine for the clay operator, telling him "to have the day 'men do more agitating on days and to keep the hatchet men off nights as they were bothering us." According to Abbruzzese, he referred to the supervisors as hatchet men. The following evening, Abbruzzese was discharged without explanation. „ LELAND-GIFFORD CO. 127 The -respondent paid all four men s from 5: 45 p. m., the regular starting time for the night, shift. During the night shift of August 11,, Abbruzzese and his friends talked together "considerably" about the possibility of -organizing. These conversations took place both inside and outside the plant, They talked about "organizing an independent union," and considered all the employees still, working to be potential members of their- organization. Although Abbruzzese testified that organizing the grinders was a preliminary, step to the organization of an inde- pendent union comprising the employees in the entire plant, the other organizers stated that they had never heard of such an organiza- tion. until that night, which was the first time that any type of or- ganization other than that of the grinders had been mentioned. We are convinced, as was the Trial Examiner, that the decision to form a labor organization composed of all the employees -of the respondent was made during the night of August 11 and that the organizers then began to talk in straightforward terms about organizing such a union in the plant. Pursuant to arrangements made that night by the organizers, Garrity drove to Boston the following day to inquire of one Skibinski, chairman of the Massachusetts Labor Relations Commission, and others, about the procedure for forming an independent union. Upon his return, the four organizers met at Abbruzzese's hoiile where they spent a large part of the evening discussing the problems of organiza- tion. Although they did not report for work that night until,10:23 'p. in., the respondent paid them from 5:45 p. m., the beginning of the shift., Upon entering the plant on August 12, the four organizers discovered that a group of employees, led by LeRoy Burke,10 John Faubert, and Salih, were circulating a petition, and interpreted this action as a movement by these employees to form a labor organization in competi- tion with them. Doherty and Garrity spoke to this group and sought to discourage this activity by telling them that such a petition would be illegal and by outlining their own plans. After some discussion the Burke group 'decided to authorize Abbruzzese and his friends to go ahead with their plans, but threatened to resume the *circulation of the petition-unless the organizers could report definite progress the follow- ing evening. Again, a considerable amount of working time was spent in discussing plans and making arrangements for the formation of the Independent. During the course of these discussions, employee Baroni offered Doherty the use of his home for a meeting of the night shift employees at which Doherty could make a progress report. Before the end of the shift; Doherty made arrangements with Burke and a few u These four individuals are herein referred to as, "the organizers" or "the- four organizers." 10 Also referred to in the record as "Roy"„Burke. 4, 128 DECISIONS- OF ` i ATIONAL` ,LiABOR `RELATIONS BOARD' of his followers to meet with them at' Baroni's house on Wednesday afternoon. After leaving work on Wednesday morning, Abbruzzese, Gar- rity, Doherty, and Carrow arranged for the services of, Attorney James A. Crotty and made payment therefor contingent upon the successful formation of the Independent. With Crotty's assistance, the men drafted a card which stated that the signers were willing to join an independent union sponsored by certain named employees." During the same day the organizers had 1,000 of these independent cards printed. According to the corroborated testimony of Trippi, Doherty told him about the cards on Wednesday noon, and instructed him "to get the fellows, as many.as you can" to go to Baroni's home,on Ingleside Drive that evening after work to sign Independent cards. Doherty testified that he warned Trippi not to "spread it around the shop through the grapevine" until after 3p. m. for fear the news might get to the Union. Later that afternoon Doherty met with the Burke group as prearranged, adjourned to the grounds of Rice Square School nearby, and had them sign Independent cards. - DeCelle testified that sometime that Wednesday afternoon in the plant he asked Foremen Kneeland and Lindquist;-if they knew any- thing about a settlement of the strike and Kneeland replied "Never mind; we have something cooking, something up our sleeve-don't worry about it." Kneeland denied having made this statement and added that "if it took place . . . I don't recall it." In view of the general character of Kneeland's testimony, we credit, as did the Trial Examiner, the testimony of DeCelle. DeCelle testified further that about 3:30 or 4 p. m., Foreman Lindquist came into DeCelle's depart- ment, spoke to Foreman Worcester and a group of employees, and gave DeCelle and others an address on Ingleside Drive, which proved to be that of Baroni's home, with instructions "to go up there and you will see what this is all about." According to the undenied testimony of DeCelle, Trippi appeared in the department about 4: 30 p. m. and told him that Independent cards were to be signed at Ingleside. Drive after work that night, and instructed him to get as many employees as possi- ble to go there for that purpose. DeCelle, thereupon, began actively to solicit employees, and made "arrangements to take several of them to the Ingleside' address. Foreman Lindquist testified that some employee in Building No. 2, whose name he was unable to recall at the hearing, put a note in his pocket with the request that he deliver it to DeCelle in another building, that he thereafter handed the note to DeCelle with- out having looked, at it and without commenting thereon to DeCelle or the others. Both Lindquist and DeCelle agreed that Foreman Wor- 11 Roy „ Burke, ,, Ralph Slater, Angelo ,Trippi , Owen,,Kilcoyne, James Garrity , )Micbael Ab- bruzzese, William Carrow, Thomas Doherty, John Faubert. LELAND-GIFFORD co. , 129 tester was present during the incident; Worcester, however,_did not testify. Although Lindquist testified that note carrying by super- visory personnel was a practice in the plant, Foreman Kneeland, when questioned about such a practice, denied that he had ever carried notes and stated "That is something I do not know. I cannot tell what the individual does." It is apparent that, in carrying the note, and in relaying the infor- mation contained therein to the employees, Foreman Lindquist was performing a real service to the organizers. He testified that the inci' dent involved going from his department in Building No. 1 across a public street to another department in Building No. 2, that no employee was making a trip between these departments at that time, and that in those cases where employees did move about, they had' to check out- and in with 'the guards stationed, at the entr;auce to these buildings "as to where they are going and coming." In view of the unsatisfactory and vague explanation of this incident liy Lindquist and the straight- forward testimony of DeCelle, who was corroborated by Lindquist in many details, we credit the testimony of DeCelle, as did the Trial Examiner. We are also of the opinion, and we find, that whether or not a practice of note carrying prevailed in the plant, Lindquist know- ingly assisted in this important step in the organization of the Independent., The solicitation of DeCelle by Trippi was part of his fulfillment of Doherty's request that Trippi put the news of the Ingleside gathering "on the grapevine," Trippi testified that he had started to do so after 3 p. in., as requested, and that he "put the news on the grapevine" by telling his friends and requesting them to tell their friends. He explained further that when he desired to spread the news "oil the grapevine" to all three of the respondent's buildings, one of which was separated from the others by a public street, he so informed em- ployee Roche, a trucker whose duties required him to go from building to building, and instructed him to see that the news reached the men in the other buildings. By this means, which was used extensively by the organizers of the Independent, all the employees of the respondent were advised of the plans of the Independent. , At 5:45 p. in. on Wednesday, Carrow and Doherty returned to the plant and led a group of employees through the picket line into the plant. According to the testimony of Carrow, corroborated by Doherty, the four organizers on the night shift had decided upon such action in order to "bolster [the] spirits" of the employees and to dissi- pate any adverse effect upon their organizational efforts which may have been caused by their previous failure to assist the employees through the picket line. Garrity and Abbruzzese were not present since they were charged with the important task of having cards signed at Ingleside Drive that evening. 130 DE,CISIONS -OF NATIONAL LABOR RELATIONS BOARD Soon after the day shift ended, large numbers of automobiles filled with employees began to arrive at the Ingleside Drive address'\vliere Garrity, Abbruzzese and, later, Trippi, distributed Independent cards to the employees and collected them again after they had been executed. Later, upon learning from a policeman-of the neighbors' objection to the noise attending this activity, Garrity and Abbruzzese went to a nearby public park, leaving Trippi to direct the employees there. Employees continued to appear at this park and to execute Independent cards until about 9 p. in. According to the testimony of - Garrity, 'about 350 cards were signed at both places that evening. After-placing the signed cards in a safe place, Abbruzzese and Garrity went to the plant, where they checked in about 10 p. in. Again the respondent paid them their full wages from 5 :45 p. in., thereby paying them for the 41/4 hours they had spent on business of the Independent. The four organizers were thus paid for a total of 27 hours during the evening of August 12 and 13, although their time cards showed that they were absent from the plant, and their testimony established that during this period of time they were engaged in discussing the problems of organizing or in securing signed application cards for the Independent. The respondent and the Independent contend that during the strike it was the policy of the respondent to' pay any em- ployee from the beginning of any shift for which he reported irrespec- tive of the time of his reporting for work, and that such conduct is not blameworthy and is not to be interpreted as company support. Although the respondent produced the time cards of 60 employees 12 to establish this policy, and these cards showed that the respondent paid these employees during the week ending August 16 for approximately +"65'hours of time when they were not in the plant, it does not appear from the record that the asserted policy serves to justify the payments to the four organizers. Trippi testified that employees who reported their lateness to the timekeeper and attributed it to their inability to pass through- the picket line were credited by the timekeeper with time from the commencement of the shift and the time cards were so marked. The record is barren of testimony that any of the organizers asserted such a claim to the timekeepers; nor were their time cards marked to indicate the commencement of work at the start of the shift but, instead, showed,the actual time of arrival. Moreover, it appears from their time cards that the daily totals of hours worked were altered by the respondent to show a figure which included the-hours absent from, the commencement of the shift. In this connection Doherty, when ques- tioned as to why he was paid for full time on Tuesday, August 12, although lie arrived at 10: 23 p. in. and his time card reflected that information, stated that "I must have unconsciously told [the' time- .. '2 The cards were replaced at the hearing by a tabulation of their contents, now in evidence LELAND-GIFFORD CO. 131 keeper] I came in at a quarter of six," the regular starting time; Garrity testified that he did not know why such starting, times as 10 or 10: 23 p. m.'were written on his time card instead of 5: 45 p. in. if there was a practice of paying -from the regular starting time, as some employees had told him; and Abbruzzese expressed surprise when his attention was called at the hearing to the daily total of his time card for Wednesday, stated that he had not discussed this matter with the respondent and did not know on what basis the time was computed, and suggested that a clerical error had been made. On all 'the facts, we find that the asserted policy does not adequately explain the pay- ment to the four organizers for time not worked on Tuesday and Wednesday, August 12 and 13, and that the,respondent made such payment with knowledge of their activity on behalf of the independent during the periods in question. Sometime Thursday morning, Doherty-instructed Trippi to inform. the employees that the organizers might be back in front of the plant at noon so that they could sign Independent cards. • Trippi testified that he spent part of the morning soliciting employees to join the Independent and telling them that they could sign cards in front of the plant,at the noon hour. Once again, this news was spread through the plant on the "grapevine." Although the respondent had requested the employees to remain in the,plant during their shift in order to minimize the chances of trouble with those on the picket line, groups of employees left the plant that ,Thursday noon and walked between the pickets who, on orders of the Worcester police, were required to continue marching on the sidewalk. These employees gathered around the Independent organizers who were standing in the street just beyond the sidewalk, signed Independ- ent cards, and then walked back through the picket line into the plant. Trippi testified that while this was occurring outside the plant, he was busy inside the plant rounding up employees and sending them outside to the organizers. This solicitation continued throughout the lunch period without objection by the respondent. The signing of Inde- pendent cards was witnessed by numerous company officials, super- intendents, foremen, assistant foremen, and the respondent's attorney, Ernest Anderson, who had gathered in a reception room overlooking this scene and within 15 or 20 feet of one of the two main exits. Ander- son son became so interested that, according to his own testimony, he asked some of the employees about what was going on and learned from "just general talk outside the plant window at the time" that some of the Independent organizers were former A. F. of L. members. Other supervisors went outside to watch the proceedings. According to the uncontradicted testimony of Ryan, one of the CIO adherents, Gifford, the respondent's treasurer, questioned him about the cards which were being distributed. When the lunch period ended, the organizers 521247-43-'vo1 48--10 132 DECISIONS OF NATIONAL LABOR ' RELATIONS BOARD returned to the automobile in which they had driven to the plant and departed under escort of a police scout car for which they had made arrangements earlier that day with the Worcester chief of police. Although the organizers testified that they were pursued in cars ,occupied by pickets for a considerable distance, no untoward incident occurred before such pursuit was abandoned. Sometime in the morning or afternoon of Thursday, August '14, Trippi, DeCelle, Jerry Cote, and four other employees secured an appointment to see Treasurer Gifford. According to the testimony of DeCelle, Gifford came into the meeting and said "you boys are doing a nice job. It is good." Wilkinson testified that he did not hear this remark. Although Trippi's recollection of the facts did not include any such statement, he was not questioned specifically about the remark attributed to Gifford by DeCelle. We credit the testimony'of DeCelle and find that Gifford did make the remark attributed to him by DeCelle.' Trippi ' stated that he requested Gifford to furnish more police protection in front of the plant; the other men also requested better transportation facilities and free coffee. Gifford was also'asked about, and explained, the lay-off of Connor and Fox. Subsequently, according to DeCelle, more police protection, better transportation facilities, and free coffee were furnished. On Thursday evening the organizers reported for work at Building No. 2 at the beginning of the shift. This was the first time since the start of the strike that they had all reported on time. Doherty testified that they proceeded to put on the "grapevine" the news of their plan' to be out in the street during the midnight 20-minute lunch period'so that the employees could sign Independent cards. It is clear from the record that, like-Trippi, the organizers personally solicited employees throughout the plant to sign cards at midnight and made arrangements as to how the signing was to be done. The news of the midnight signing-up period was spread by the organizers or their friends,to the employees of the buildings other than the one in which the organizers worked. According to Burke, by midnight there was not an employee in the plant who had not been solicited. and told to go into the street at midnight, form a circle around the organizer and the man signing the card as a "protectionary" measure, and to execute a card for the Independent. - On this occasion, there was no CIO picket'line present. According to Burke, all ,the 40 employees in Building No. 3 and about 80_ employees from Building No. 2 went out into the street through the exit of Building No. 2 without interference to sign Independent cards. In an effort to enforce the respondent's order forbidding employees to leave the building during their shift, Superintendent Gaudes stood in front of the'exit of Building No. 1 and-refused to allow them to leave the building. Night Superintendent Jerry Leland testified that, upon being informed by an unidentified employee of Gaudes' action,in inter, , LELAND-GIFFORD CO. 133 fering with the employees who "had some business they wanted to do" outside, he ordered Gaudes to permit the employees to leave. These employees then went out into the street and signed Independent cards. Doherty thereafter carried off the signed cards to a safe hiding place and returned-to the plant 10 minutes late, according to his own estimate. Doherty testified that he was not,questioned by any representative of the respondent concerning his absence and'no deduction was made from his pay for the time so spent. With this exception, the respondent, for the first time since the inception of the Independent, began on Thursday night to pay the organizers only for the time they were actually in the plant. However, not even then was it concerned with the fact that a part of this time had been spent by the organizers in soliciting men to join the Independent and in arranging for the execution of the cards. , On the morning of Friday, August 15, the organizers met in Crotty's office and turned over to him all the cards signed by the employees on the above occasions. Crotty thereupon prepared a list of the names of the signers on these cards. This list included the name of Foreman Walter L'Heureux.13 It was then decided that the Independent should have a'meeting that evening attended by representatives from as many departments in the plant as possible. 'The group also discussed the general meeting which had been scheduled for 8 p. in. of the following day, Saturday, August 16, and made arrangements to notify the em- ployees concerning/ it.. According to Carrow, the group conferred about the possibility of changing the time of the Saturday meeting and arranged, in that event, to notify the employees of the change through the Worcester Telegram, a local newspaper. .Sometime that Friday Doherty notified Trippi of the necessity of having representatives from the various departments on the day shift at the meeting scheduled for that evening. Trippi testified that he told some of the employees about the meeting and made arrangements as to the time and place they should meet, and that he instructed Roche to secure representatives from Building No. 1. Trippi personally, invited` Jerry Cote and Francis N. Cody and arranged to take them, to the meeting. These instructions were carried out by Roche during working hours. That evening, after again reporting to work on time, 's Although Tripp! testified that L'Heureux was then only a lathe hand , Superintendent William Leland, who was in complete charge of the crankshaft department,, testified un- equivocally that L'Heureux was a foreman on the night shift at the time of the strike, that be was assigned to the supervision of employees working on 25 or 30 lathes in Buildings No 2 and No . 3, and that he had the right or duty to recommend the hire and discharge of these employees. The respondent, in its exceptions and supporting brief, argues that Leland was mistaken when he so testified , and the Independent requests permission in its brief to furnish proof that L Heureux was not a foreman . However , we are satisfied that, regardless of the 'fob designation of L'Heureux on the, respondent 's records , his actual duties, as testified to by Leland who was well informed thereof by virtue of his position, indicate clearly his supervisory status 134 DECISIONS OF NATIONAL LABOR .R'EL'ATIONS BOARD the 4 organizers also put "on the grapevine" the news that the repre- sentatives to this meeting should be selected,by the 'various depart- ments. In addition, they personally invited-a few employees to attend. The organizers testified that they did not know how the representa- tives were actually selected from the various departments to, attend the meeting scheduled for Doherty's home. However, by' 7:30 that' evening, not only the - organizers but also 10 or 11 employees on the night shift left their tasks, without permission, to, attend the meeting as such representatives. In those instances where supervisors 'were informed by the men that they were leaving the plant, no questions were asked. It is the undisputed testimony of Carrow and Abbruzzese that they,were not questioned by their supervisors or foremen concern- ing their 'absence that evening, and Doherty testified that no comment was ever made by any supervisor about the simultaneous departure of all these employees. Although the Independent argues that it was a common practice during the strike for anyone to leave the plant at will,14 we are not convinced that such a practice did in fact exist. We find that the extensive undertaking of selecting representatives was carried on openly under such circumstances as to afford a reasonable basis for imputing knowledge thereof to the respondent. We find further that the respondent cooperated in this activity of the inde- pendent by permitting the selected representatives to leave their work and the plant without objection. At the meeting which was attended by approximately 30 employees, including Foreman L'Heureux, some time was spent in preparing for the general meeting of the following day. In view of the respondent's decision to close its plant on Saturday; it was decided to hold .the general meeting at 2: 30 p. in. the following day instead of 8 p. in., and an advertisement to that effect was placed in the newspaper. The general meeting was thereupon held at 2: 30 Saturday after- noon and the attendance was variously estimated from 500 to 900 em- ployees; execution of an Independent card. was a prerequisite for admission: Abbruzzese opened the meeting and announced that its ,purpose was to form an independent union. After temporary officers were elected,' it was unanimously voted .that all those present should be charter members of the Independent. • Thereafter the constitution and, bylaws which Attorney Crotty had drafted were unanimously adopted, and permanent officers were elected with unanimous author- ization by the membership to proceed immediately to, negotiate an, "employment contract" with the respondent. , The, meeting, then adjourned until August 19. 14 Abbruzzese testified, to that effect , but under the circumstances the do not-'creclit'his' testimony. 15 None of the organizers was elected to office, since Abbruzzese stated that none would accept office in the Independent. LELAND-GIFFORD Co. 135 The "closing of the plant bthe respondent on August 16, the day upon which the Independent'-',vas formally organized, marked the first Saturday on which the plant had not operated in years 1B It is appar- ent from the testimony of Kneeland that this action was taken despite the fact that the respondent well knew that its chief customer, Pratt & Whitney, was threatened with a shut-down'if' deliveries by the're- spondent were not increased.- However, the respondent urged at the hearing and in its brief before us that, due to the poor attendance of employees on the night shift," it planned to eliminate the night shift and combine it with the day shift on the following Monday, and that the planning and arranging incidental to such a change required it to shut the plant on Saturday. In view of the uncontradicted testimony of Foreman Mero that, such a change would require considerable reor- ganization on the following Monday, but "that there wouldn't have to be much planning on it" in advance, and in view of the apparent unawareness by the respondent's supervisory personnel of the closing end 'tlie' reason for it,i$ we are unable to give any weight to the respondent's argument. The record•sho«-s that the evening hour scheduled by the Independ- ent for the Saturday meeting was encountering objection from the respondent's employees and that several employees at the meeting of representatives at Doherty's home made mention of the fears expressed by some of the employees about attending a meeting at night. Indeed, Carrow testified that the Friday meeting was called, in part, for the purpose of changing the time of the general meeting. As found above, the possibility of such a change had been discussed by the organizers with Attorney Crotty on Friday morning. Moreover, in contrast with the lack of knowledge by the respondent's supervisory personnel, the organizers appear to have been well informed of the projected closing. Thus; Carrow testified that he had discussed the closing of the plant with the other, three -organizers considerably before die 16 The 'rCsjondent'cllsed •rts1-plant again on the following' Satinday for the asserted reason that it had to get pioduction back to notinal after the disruption caused by the 2 weeks of the strike 17Company figures indicate that 77 percent of the employees appealed for i, ork on August 11, and that thereafter there was a gradual decrease in the number of employees reporting for work until August 15, when 51 percent reported for work After the cigani- zation of the Independent, there was a corresponding gradual increase in the number of employees repoiting for work until August 21, nnhen 77 percent of the employees repoited. The total employment during this period, excluding supelvisois, foiemen, and assistant foremen, was estimated by Wilkinson to be approximately_ 1,?50 The i ecord does not disclose, however, any separate attendance figures for the day shift and night shilt. 18 Superintendent William Leland testified that he did not remember v by the pant was shut down; Foreman Kneeland stated that lie did not know of the closing until satin day noon ; and Foremen Gilbeit nuil and Memo testified that they were not told Ni by the plant iias'being closed 136 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD meeting on Friday,' and that he knew of the closing some time before Friday afternoon. In view of the organizers' desire'to find a meeting time more ac- ceptable to the employees, in view of the inadequate explanation by the respondent for its action, and in the light of the circumstances under which the plant was closed, we are satisfied and we find that the respondent closed its plant in order to assist the Independent and to facilitate its organization. Throughout the formation of the Independent, the "grapevine" at the plant was used by the organizers to spread among the employees, the information about their activities. As found above, the,"grape- vine" consisted of the organizers telling their friends throughout the • plant about the Independent, soliciting them to join it, making ar- rangements for them to execute Independent cards outside the plant,. - and having them pass the information along to their friends through- out the plant. In furtherance of its defense that it had no knowledge that the Independent was being formed on company time and property the respondent contended that the "grapevine" in use at the'plant was a method, common to plants of this type, of- passing information among employees. While the usual type of "grapevine" would be secret, closely guarded, and limited in its use, the activities conducted in the respondent's plant were extensive and characterized by many overt acts. In view of the magnitude of the task of informing so many employees in such a short period of time, the prolific use of the ,"grapevine" and the success it had in reaching all the employees in the plant; and in view of the presence of supervisory employees through- out the plant. during working hours, and their conversations with employees who were either at work or engaged in group discussions,' we are convinced and we find, as did the Trial Examiner, that the respondent had knowledge of the plans, arrangements, and solicita- tions made by the Independent on company time and property. In so finding, we regard as patently lacking in merit the contention of the respondent that, due to the disorder at the plant accompanying the strike and due twits relaxing of discipline during that period, it was prevented from learning of the Independent's activity; especially is this the case in view of Superintendent Jerry Leland's testimony that he learned about the formation of the Independent during the early part of the first week of the strike through conversations, in the plant. where all the employees were talking about the Independent.20 More- 19 This testimony was given on cross-examination by Carrow, a witness for the Inde- pendent. Although Cairoiv testified on redirect examination that be did not remember any such discussion, we do not credit the latter testimony " Other supervisory employees of the respondent denied having heard anything about the Independent throughout its formative period. Under the circumstances, we do not credit-these denials. - , 1 LELAND-GIFFORD CO. 137. over, despite,this knowledge and despite the respondent's rule for- bidding any solicitation in the plant on penalty of discl' large, the record shows and we find that the respondent made no attempt to en- force this rule in regard to the organizers and adherents of the Independent." 2. Subsequent events On August 15, the respondent received a letter from the CIO, in part as follows : "We feel that all strikers, including those whose dis- charge or lay-off precipitated this strike, should be. reinstated to their 'jobs; that provisions should be made for recognition of the Union and adequate protection of Union members . . ." The letter suggested a. meeting between -the parties to discuss these and other matters. On August 18, the Independent wrote the respondent claiming to repre- sent a majority of its employees and requesting a meeting in the near future to negotiate a contract. Neither letter was answered by the respondent. On'August 19,,at a conference with the respondent and the CIO in Boston, Dr. Myers, Regional Director for, the Board, proposed a 5-point agreement to settle the strike. The following terms were included therein : 3. That the allegation as to company sponsorship and domination of the Independent Union of the Employees of Leland-Gifford Co., and the allegation of the refusal to bargain collectively with the Steel Workers Organizing Committee (C. I. 0.), be investigated by the Regional Office, National Labor Relations Board for further deter- min ation ; 4. That the Company will deal with no labor organization until the proper agency is determined by the Regional Director or by the National Labor Relations Board; The CIO promptly accepted these terms but Anderson, attorney for the respondent, stated that he could not accept without discussing the matter with the respondent's officials. That afternoon, the Worcester Evening Gazette, carrying the fol- lowing banner headline: "C. I. O. Accepts 5-Point Program to End Leland-Gifford Strike," caused consternation among the Independent organizers and leaders who feared, according to Abbruzzese, that the attendance at the Independent meeting scheduled for that evening would be ruined. By 4 p. in., the respondent had posted a notice on the bulletin boards to the effect that it had reached no settlement with the CIO. 21 Although the record reveals that the Union solicited in the plant on,company time, the credible evidence points to the fact that the Union did so , considexably after the Independ- ent had begun to solicit membership and collect dues in the plant 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Shortly before the end of the shift that afternoon Abbruzzese and Doherty went from floor to floor in the respondent's various buildings, calling the employees together on each floor to hear a speech by Abbruzzese. Abbruzzese told them that there had been no settlement of the strike, that the headline was a CIO trick, and urged the em- ployees to attend the Independent meeting that evening. 'Employee Jefscoat testified, without contradiction, -and we find, that Foremen Walsh and Jordan were present and did not interfere when Abbruzzese spoke in his department on the second floor of Building No. 1. We also credit the testimony of DeCelle that the power controlling the overhead shafting was shut off in his department in Building No. -2" during Abbruzzese's speech 22 without interference by Foreman Worcester 23 who was present. " On the evening of August 19 about 900 employees attended the Independent meeting and discussed the demands to be made of the respondent in the Independent's proposed contract. On August 20 the Independent protested by letter to the respondent against acceptance by it of paragrph 4 of Dr. Myers' recommenda- tions on the ground that such action would temporarily, at least,,pre- vent the Independent from representing the employees and from bar- gaining immediately with the respondent. On August 21 the CIO called off its strike at the instance of the United States Conciliation Service, which had arranged a meeting between the CIO and the respondent at Washington, D. C., for August 26. On the following day the strikers returned to work. The respond- ent persisted, however, in its refusal to reinstate the discharged or laid-off employees. On August 22 the respondent wrote a letter to Dr. Myers refusing to accept his recommendations for settling the strike and denying the commission of any unfair labor practices, but failing to mention specifically the charge of refusing to bargain. In answer to paragraph 4 of, these recommendations the letter stated : "Our Company will not deal with any labor union unless it represents a majority of our employees . . . and even in such case, no employee in our plant will be required to belong to any labor union." On August 23 Attorney Crotty and Anderson and Wilkinson, the respondent's attorney and personnel manager, respectively, met with "Doherty testified that he heard someone in Building No . 2 shout "Shut the power off',' and that an unidentified person pulled the switch shutting off the power on the overhead shafting controlling four machines. "Although the Independent argued in its brief that no supervisory employees were present and that , in any event, Walsh and Jordan were assistant bosses or straw bosses rather than supervisory employees , we credit the testimony of Jefscoat and DeCelle, cor- roborated by Lindquist , and find that Walsh and Jordan were foremen in charge -of the filing department and drill department , respectively, and that Worcester had supervisory powers in that, as assistant to Lindquist , he assumed all the latter's duties (luring his absenee from the department. - LELAND-GIFFORD CO. 139, the Independent at Crotty's office. The Independent requested recog- nition and offered 933 signed cards in substantiation of its claim to represent a maj ority , of the employees. Thereupon the parties • con-- sented to have Harry C. Prince, a bank teller, check the authenticity of the signatures on-the cards against signatures from the respondent's file. Although Anderson refused to give any written evidence of recognition, he agreed to allow the Independent to give the newspapers the story of its recognition and agreed, to confirm that story in the event that this check showed that the Independent represented a majority of the employees. That evening -Prince certified that 899 cards bore authentic signatures. The story of this recognition ap- peared in the Sunday paper, as agreed, after Anderson had confirmed it. . On August 26, 27, and 28,,Anderson and Wilkinson, representing the respondent, and representatives of the, CIO, including a number of the discharged or laid-off employees, met in Washington, D. C., with a Panel set lip by the 'Conciliation Service. By the evening of. August 27 the respondent had agreed to the' reinstatement of those employees and the CIO had agreed to withdraw its charges of dis- crimination as to them. On August 28 the Panel published its recom- mendations which, after- providing for these reinstatements and the withdrawal of the discrimination charges, was in part as follows : 3. That the remaining representation issues and others now be- fore the National Labor Relations Board be handled by the proper office of the National Labor Relations Board through the established procedure set up for that purpose. The Union promptly 'accepted the recommendations, but once again, Anderson requested time to confer with the respondent's officials. On August 31 the respondent telegraphed its acceptance of the recom- mendations of the Panel. After the respondent's acceptance, the discharged or laid-off em- ployes were _reinstated, although in some instances not to the same positions and in some instances to the night shift instead of the day shift. Indeed Ryan, Connor, and Fos' were thereafter returned by the respondent to different positions, which, according to the credible testimony of all three, were more difficult and less desirable than those formerly held by them. Ryan was changed from the position of checker of crankshafts- on the day shift to that of picking up chips on the night shift; Connor was shifted from the position of planer- on the day shift to that of boring shafts and grinding on the night shift; and Fox was shifted from the position of planer and sawyer on the night shift to one of picking Lip chips-on the night shift. Although the respondent should have concluded from the tenor of the discussion before the Panel and from paragraph 3 of the Panel's recommendations that the legality of the organization of the Inde- 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pendent was in issue, it nevertheless, as found below, undertook fur- ther negotiations with the Independent. On September 5 the Inde-, pendent met with Anderson and Wilkinson and Worcester. The parties' discussed first the matter of recognition of the Independent, since, as the Independent reported in its minutes, "Nothing had been accomplished,,- in -two,, previous, ^meetings." 24 The,- Company then agreed, in view of the card check by Harry C. Prince, to recognize the Independent as the exclusive bargaining agent of its employees. The demands of the Independent were also discussed but no further de-, visions were reached. After further, negotiations on September 10 and 12, these parties were substantially in agreement as to the terms of a contract. At a general meeting of the Independent on Septem- ber 13, the Independent officers were authorized by a unanimous vote to "sign a contract with the Company, substantially in, accordance with a contract read at this meeting." After some ,, minor :changes: in phraseology had, been made in-the, agreement, it was executed by the respondent and the Independent on September 16. This contract grafted the Independent exclusive recognition and, for the first time, clarified the unit involved. By the terms of the contract the respondent granted a general wage in- crease of 10 cents per hour and vacation with pay, and agreed to a basis for determining seniority. Although a grievance procedure was outlined, the contract specifically provided that employees could continue to handle grievances individually, if they so elected. Sec- tion 7 of the contract placed "the management of the plant and direc- tion of the affairs of the Company and working forces, including the right to hire, lay off, discharge, suspend, and transfer ..' . " ex- clusively in the management. After the strike the respondent transferred a number of the em- ployees to the night shift. Thereafter, when some of the CIO mem- bers attempted to secure transfers back to day work, they were told by various superintendents and foremen, including William Leland, Jerry Leland, William Gaudes, and William Mero, either that the Independent members were supposed to have the day,work or that the employees would have to secure permisssion from the Independ- ent in order to get such a transfer. Employee Robert Grenier, a CIO member, testified that he failed in several attempts to secure such a transfer, but that he was successful within a week or two after signing an Independent card. After having unsuccessfully at- tempted, during September 1941, to secure from Foreman Lindquist a transfer back to day work, employee Butler, who had been, on the CIO picket line,' requested Superintendent Jerry Leland to do him, "a favor" by securing such a transfer for him. As found above, 21 The record shows only one previous meeting between the parties. LELAND-GIFFORD CO. ,Leland admittedly replied ,"Are you asking me to do you a favor? ... Didn't I see your on the picket line? . . . Don't ask me to do any more favors for you. As long as you work here you will have, to earn anything you get from now on." . Butler was not transferred. By March 7 , 1942, despite the provision of'Section 7 of the September ,16 ,contract giuoted above; ` the ,respondent tltrn'ed the mattemof , trans--r fers over to the Independent. Thereafter applications for such -transfers had to be made by employees on a form prepared and sup- plied by the Independent, and non-members had to procure such applications at the offices of the Independent . Each application had to be approved by the Board of Directors 'of the Independent and -submitted thereafter to the respondent before such transfers would be granted by the respondent. We are convinced and we find that by its conduct in effectuating this change, the respondent indicated -clearly -to its employees the, benefits of membership in the Inde- pendent.25 3. Conclusions The allegations of the complaint that the respondent°has domi- nated and interfered with the formation and administration of the Independent, and has rendered assistance to it find ample support in the record which reveals a continuous course of collaboration between the respondent and the Independent. The respondent's defense of lack of knowledge of such formation on company time and property and its denial of assistance fail in the light of all the facts. Prior to August 11, 1941, the respondent demonstrated its hostility to the possible organization of its employees by the CIO through the acts and statements of Foreman Kneeland and Burl and interrogat- ing employees about the Union, threatening members of the 'CIO with dismissal, and threatening to discharge anyone who was active on behalf of any labor organization. Thereafter, on August 11, when the CIO-went on strike, in protest against what it considerecl'unfair labor practices against,'its members; the, respondent embarked upon a course of conduct designed to assist the formation of the Inde- pendent. It promptly recalled Abbruzzese whom it had discharged upon the apparently mistaken belief that he had been soliciting and organizing for the CIO. After reporting for work that evening, the organizers conceived the idea of the Independent. The growth of the Independent was most rapid thereafter. During ,the night shift of August. 12, the formation' of the Independent was agreed upon at an informal discussion in the plant attended by several em- ,ployees. Lafer during -the• same 'shift, -further arrangements con- cerning the formation of. the Independent were made. Begimiing 25 See Matter of Illanoic Electric Porcelain Company and Illinois Eteetric Porcelain Workers of Macomb, etc ., 31 N. L. R B. 101. 142 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD' on-August 13, the Independent organizers started soliciting employees= to join the Independent. This work was done almost exclusively "over,the grapevine," freely and openly during working hours with the knowledge of and without, any apposition by the respondent. Although not a single card was executed on company time and prop- erty, virtually all the solicitation and arrangements for the physical- act of executing Independent cards outside the plant were made on company time and property during both the day and the night shifts,. in violation of a long-standing rule against such solicitation in the plant on penalty of discharge. Indeed,. the respondent,. acting through Foreman Lindquist, assisted in these arrangements by mak- ing known to employees the address of Ingleside Drive where Inde- pendent cards were to be executed, 'and by instructing them to go• out there. In all, G74 employees signed cards for the Independent on 4 occasions during 2 days : at Rice Square School and at Ingleside Drive on August 13; in front of the plant, after having passed through the CIO picket line at noon on August 14; and in front of the plant at the midnight lunch hour that same night. In effectuating the rapid organization of the Independent, the organizers enjoyed the privilege of being late in reporting for work a total of 27 hours and of being paid therefor, although such absence was not claimed by them to have been caused by inability to cross the picket line, a prerequisite to payment from the commencement of the shift on those days. In addition to enjoying the freedom of the plant, during this period and the right of coming to work at will, the organizers enjoyed the privilege of leaving when they so desired. In fact, the respondent extended the last-mentioned privilege to the night-shift employees, who we're selected as representatives to attend the iiieeting. at Doherty's home on August 15, by allowing them to leave their places at about 7: 30 p. in., after having worked less than 2 hours, in order to attend that meeting. Moreover, the respondent participated in that meeting through Foreman Walter' L'Heureux, who had also signed a membership card for the Independent. Indeed, on August 16, the day of the, advertised general meeting at which the Independent was formally organized, the respondent, in violation of a precedent of at least several years' standing, closed it plant so as to make it possible for. the Independent to change the time of its meeting to the afternoon of that day and thus meet the objections registered by some of its members to a night meeting. 'The subsequent history of the Independent indicates a continued course of collaboration between it and the respondent. Two days after the Independent had protested to the respondent against its acceptance of the -proposal of Dr. Myers that the Board determine the proper bargaining agent, the respondent refused the proposal. The day after LELAND-GIFFORD co: - = = 143 16 ,00 had terminated its strike' at the instance of the Conciliation Service, the respondent agreed to give the Independent newspaper recognition after the Independent cards had been checked against the respondent's pay roll, in total disregard of the Union's request that "provisions be made for recognition of the Union and adequate protec- tion of the union members." Although Wilkinson testified that the respondent recognized the Independent on this occasion because it had .a' legal duty to do so under the Act and because, if it failed to do so, it would be in difficulty with the group of employees represented by the Independent, we are persuaded from all -the facts that, absent the desire by the respondent to collaborate with the. Independent, no such hasty recognition would have been accorded to it. Following this recognition, the respondent and theeCIO settled their differences at the behest of the Conciliation Service. One of the terms of the settlement stated that the remaining representation issues were to be settled by the Board through its legal procedure, thereby placing the legality of the organization of the Independent squarely in issue. -Five days after accepting this recommendation, the respondent again recognized the Independent upon the same check of cards which had been made prior to the acceptance of the Panel's recommendation, indi- ,cating a -,preference by the respondent for making a unilateral deter- mination as to the proper bargaining agent without resort to estab- lished legal procedure. Eleven-days after this last recognition the respondent and the Inde- pendent executed a written contract which provided specifically that the transfer of employees was exclusively the prerogative of the re- spondeiit. But the -respondent soon gave the Independent full control over the transfer of employees from one shift to the other, and its su- pervisory personnel made use of this new company policy to indicate to the employees the benefits of membership in the Independent. By March 1942 the respondent voluntarily abrogated Section 7 of this contract in order to give the Independent some justification to control the transfers from shift to shift, thereby lending prestige to the Inde- pendent and indicating further to the -employees its support of the Independent. , Both the respondent and the Independent contend that events occur- ring before and after the formation of the Independent are material to the-issue of interference and domination and show that the Independent hats been and is now free from such interference and domination by the respondent. In substance, such facts asserted either by the respondent or the Independent are (1) that as soon as the strike started, divisional superintendents, ' foremen, and' guards were told to and did observe neutrality in any, union discussions or activity, (2) that the organiza- tion of the -Independent at that time-was attributable to the organizers' 4 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD belief that because of the strike the time was propitious, (3) that the disorder and circumstances attending the strike made it practically im- possible to prevent its formation on company time and property, even conceding arguendo that the respondent had knowledge thereof, and (4) that the extent of the negotiations prior to the contract with the Independent negative any suggestion,of assistance to it. We are of the opinion that the credible evidence does'not support these con- tentions, but discloses a studied course of action by.,the respondent to interfere with, dominate, and assist the Independent. Upon the entire record, we find, as did the Trial Examiner, that the respondent has dominated and interfered with the formation and administration of the Independent and has contributed financial and other support thereto, and has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. C. The alleged 'discrimminatory ;discharge of Michael Leo Ryan In his Intermediate Report, the Trial Examiner found that al- though the case is 'not free from doubt, the respondent discharged Michael Leo Ryan on February 2, 1942, for absenteeism and not because of his union membership and activity. The Union did not file any exceptions to this finding, but indicated thereafter by let- ter to the Board that it was relying upon its brief before the Trial Examiner in which it urged that Ryan was discriminatorily discharged. However, at oral argument before the Board, the Union receded from its position and indicated that it was not contesting this finding of the Trial Examiner or his recommendation that the complaint be dismissed as to Ryan. We have considered the rec- ord, and we agree that it does not support the allegation that Ryan was discharged because of his union membership or activity. We shall, therefore, dismiss the ' complaint as to him. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III, above, occurring in connection with the operations of the re- spondent described in Section 1, above, have a close, initimate, and substantial relation to trade, traffic, and commerce among theksev- eral States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has, engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and LEI.AND=GI'FFORD CO. -145 to take certain affirmative action designed to effectuate the policies of the Act. We have- found that the respondent dominated and interfered with the formation and administration of the Independent and has contributed support to it. In order to effectuate,the policies of the Act and free the employees of the respondent from such domina- tion and interference, and the effects thereof, which constitute a continuing, obstacle to, the, exercise by the employees of the rights guaranteed them by the Act and render the Independent incapable of serving the employees as a genuine bargaining representative, we shall order the respondent to withdraw all recognition from the Independent as the representative of any of the respondent's em- ployees for the purposes of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, and other conditions of employment and completely disestablish it as such representative. Having found that the exclusive bargaining contract of September 16,,1941, with the Independent is the product of the respondent's unfair labor practices, we shall order the re- spondent to cease and desist from giving effect to the said contract as well as to any extension, renewal, modification, or supplement thereto and to any superseding contract which may now be in force. Nothing in this .decision or in our order shall be taken, however, to require the respondent to vary those wages, hours; seniority, and other such substantive features of its relations with the employees, if any, which the respondent may have established in performance of the contract as extended, renewed, modified, supplemented, or superseded, the order herein being issued without prejudice to the assertion by the employees of any legal rights acquired under such contract. The respondent's unlawful course of coiicluct discloses a purpose to defeat self-organization-and its objects. Because of such conduct and its underlying purpose, we find that the unfair labor practices. in which the respondent has engaged are persuasively, related to, the other unfair labor practice's proscribed by the Act. and that the danger of their commission in the future "is to be anticipated from the course of the respondent's conduct in the past." 20 The preven- tive purposes of the Act will be thwarted unless the terms of our order are coextensive with the threat. In order, therefore,, to make effective the interdependent guarantees of Section 7 of the Act, to prevent a recurrence of unfair labor practices and thereby to mini- mize industrial strife which burdens and obstructs commerce, and thus, effectuate, the;policies- of the Act;,we must-order the respondent ,to cease and desist from in any manner infringing the rights guar- anteed in Section 7 of the Act. 26 See N L R B. v. Express Publishting Co., 312 U. S. 426, 437. 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Since we have found that the respondent did not engage an unfair labor practices by discharging Michael Leo Ryan, we shall dismiss the complaint as to him. Upon the basis of the above findings of fact and'upon the entire record in this case, the Board makes the following : J CONCLUSIONS OF LAW 1. United Steelworkers of America (C. I. 0.), affiliated with the Congress of Industrial Organizations, and Independent Union of Employees of Leland-Gifford Co., unaffiliated,-are labor organizations, within the meaning of,Section 2 (5) of the Act. 2. By dominating and interfering with the formation and adminis- tration of Independent Union of Employees of Leland Gifford Co., and by contributing support to it, the respondent, Leland-Gifford Co., has engaged 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 (6) and (7) of -the Act. - 5. By discharging Michael Leo Ryan on February 2, 1942, the -respondent has not engaged in unfair labor practices, within the mean- ing of Section 8 (3) of the Act. , ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Leland-Gifford Co., Worcester, Massachusetts, its officers, agents, suc- -cessors, and assigns shall : - 1. Cease and desist from : - - (a) Dominating or interfering with the administration of Inde- pendent Union of Employees of Leland-Gifford Co., or with the, forma- tion or administration of any other labor organization of its employees and from contributing financial and other support to the said organiza- tion or any other labor organization of its employees; ' (b) Recognizing Independent Union of Employees of Leland- Gifford Co. as the representative of any - of its employees for the purpose of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of, employment-, % LELAND-GIFFORD CO. 147 (c) Giving effect to the contract of September 16, 1941, with Inde- pendent Union of Employees of Leland-Gifford Co. or to any exten- sion, renewal, modification, or supplement thereof, or to any superseding contract with it 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 Independent Union of Em- ployees of Leland-Gifford Co. 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 Independent Union of Employees of Leland-Gifford Co. as such representative; (b) Post immediately in conspicuous places throughout its plant' at Worcester, Massachusetts, and maintain for a period of at least sixty (60) consecutive days from the date of posting,'notices to its employees stating: (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a), (b), (c), and (d) of this Order; (2) that the respondent will take the affirmative action set forth in paragraph 2 (a) of this Order; and (3) that the contract with Independent Union of Employees of Leland-Gifford Co., dated September 16, 1941, and any modifications, supplements, extensions, or renewals thereof, and any superseding contracts, are invalid under the National Labor Relations Act, without prejudice, however, to the assertion by the employees of any legal rights acquired thereunder; (c) Notify the Regional Director for the First 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 discriminated against Michael Leo Ryan within the meaning of Section 8 (3) 'of the Act, be, and it hereby is, dismissed. MR. JOHN M. HouSTON took no part in the consideration of the above Decision and Order. 521247-43-vol 48--11