Interstate Mechanical Laboratories, Inc.

In the Matter of INTERSTATE MECHANICAL LABORATORIES , INC. and LOCAL 1207, UNITED ELECTRICAL, RADIO & MACHINE WORKERS 'OF AMERICA, C. I. O. Case No. C-294,55.-Decided March 05, 1943 Jurisdiction : aircraft and precision parts manufacturing industry. Unfair Labor Practices Interference, Restraint and Coercion: attempting to ascertain extent of the union's membership and organizational progress; threatening that organiza- tional success would produce definite disadvantages to the employees, including the lowering of wages ; prophesying the interruption of operations by strikes and'consequent loss of employment by or lowering pay of strikers; indicating that respondent would not deal with the union even if it succeeded in enrolling a majority of the employees in the plant in its membership; disparaging unions in general. Company-Dpininated Union: charges of, dismissed. Discrimination: charges of, dismissed. Remedial Orders : cease and desist unfair labor practices. DECISION AND ORDER On November 26, 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 that it take certain affirmative action as set forth in the copy of the Intermediate Report annexed hereto. Thereafter, on January 20, 1943, the respond- ent and the Association filed exceptions to the Intermediate Report, and briefs in support of their exceptions. The Board has considered the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon request of the respondent and the Association, and'pursuant to notice, a hearing was held before the Board in Washington, D. C., on February 16, 1943, for the purpose of oral argument. The respond- ent, the Union, and the Association, were represented by counsel and participated in the hearing. During the course of the hearing before the Board, the respondent renewed its motion, previously filed on December 15, 1942, to reopen the hearing for the purpose of taking the 48 N. L. R. B., No. 71. 551 552 DECISIONS OF NATIONAL, LABOR, RELATIONS BOARD testimony of its president, Abraham 'Schachat. , The motion is hereby denied. The Board has considered the Intermediate Report, the exceptions and briefs of the respondent and the Association, and the entire record 'in'the case, and hereby sustains the exceptions to the extent indicated below. In,all other, respects the Board hereby adopts the findings;,con- clusions, and recommendations of the Trial Examiner. 1. The Trial Examiner has found that, at all tunes material to the case, employees Max Horowitz, Albert Mitchell; James Williams, Ru- dolph Hoehn, and Paul Eisler were, and that they now are, supervisory employees, and that the respondent is responsible for and-chargeable .with-their statements and acts. All of these employees except Horo- witz were set-up men at the time the crucial events in this proceeding took place, and the record shows that set-up men are merely skilled employees who "set' up" or prepare machines for use by other em- ployces and who instruct less skilled employees in the operation of the machines. We find that the respondent's set-up men do not, as such, have supervisory duties or authority. Horowitz, however, was offi= cially made a foreman by the respondent in November 1941, and we are convinced by the record that he was a supervisor before, as well as after, his official designation as foreman. Thus, employee Carl Boll- inger testified that, from the time he started work in April 1940 until January 1942, Horowitz was his foreman, and that Horowitz assigned work, saw that it was done efficiently and correctly, criticized em- ployees when i t was not (lone correctly, assigned employees to machines and jobs, and "was the man to whom'you'had to apply for permission to leave the shop or,to be out or any of that sort of thing." Employee Miller also testified that in October 1941 Horowitz was a foreman, that Horowitz did no production work, that he supervised the men's work ,and told them what to do next, that he attempted to rectify anything that went wrong, and that "if I did anything wrong he would sort of bawl'me out for it."' Furthermore, the testimony of Abraham Borut, the respondent's secretary, indicates that-the designation of Horowitz as foreman in November 1941 was merely formal recognition of his existing status.' We therefore find, as did the Trial Examiner, that Ma.Horowitz was and is a supervisory employee, and, that the re- spondent is chargeable with and responsible, for his Crti-union con- duct. With respect to Mitchell, the evidence is contradictory. He was admittedly made a foreman in January or February 1942, and his supervisory status thereafter is not in dispute. Borut, the respond-- ' Bout's testimony was as follows "I remember the case of Max Horowitz, ds our con- tract has been si,ned and some question came up as to whether he came under the terms of the contract, namely an automatic Increase. and at that time a decision was icached that Max- Horowitz N% as a foreman, and, therefore, took that title. It must have been at the end of October or the first week in November " INTERSTATE MECHANICAL LABORATORIES, INC. 553 ent's secretary, although he testified that Mitchell had been perform- ing the duties of a set-up foreman "back practically to the beginning of all our production programs," also testified that Mitchell got super- visory authority 'for the first time after his designation as foreman. Mitchell himself testified that, prior to becoming a foreman, he set up machines for 10 or 12 men, and a month earlier for 5 to 7 men, over whom he exercised the authority of "any set-up man," but who did not have to "listen" to him except in regard to the operation of the ma- chines. Bollinger admitted that Mitchell worked under Horowitz and did part-time production work and part-time set-up work until October 13, 1941, but testified that thereafter Mitchell did no more production work, gradually delegated the set-up work to other men, and assumed more of the duties of overseeing the work. On the other ,hand, employee Miller testified that Mitchell, a. week or two before his designation as foreman, set up machines, made parts for them,.and did some tool work, and before that "made parts for production, the same as I do at present." On the record as a whole, we are of the opin- ion, and we find, that Mitchell, prior to his designation as foreman in January 1942, was not a supervisory employee. Williams, Eisler, and Iloelm, unlike Horowitz and Mitchell, have not been made foremen. Although their status is not'entirely clear, we are not persuaded by the evidence that they are supervisory employees. In any event, they took no part in the formation or administration of the Association or in the other matters alleged to constitute unfair labor practices on the part of the respondent. 2. The Trial Examiner has found that the respondent, through its supervisors, dominated and interfered with the formation and admin- istration of the Association. Horowitz, whom we have found to be a supervisory employee, attended the employees' meetings at'which the question of affiliating with the Union or of forming an unaffiliated organization was,,discussed, and later joined the Association; but he took no active part in the organization or administration of the Asso- ciation. Mitchell, on the other hand, was the chief proponent of the Association; but, as we have found, he was not a supervisory em- ployee it the time of the formation of the Association, and the evi- dence does not establish that be, was acting on behalf, of the respondent or that the employees had reason to believe that he was so acting. Williams, Eisler, and Hoehn' were not supervisory em- ployees and took no substantial part ,in the formation or adminis- tration of the Association. We are therefore of the opinion, and we find, that the record does not show that, the respondent dominated or interfered with' the formation or administration of the Associa- tion.. The Trial Examiner's finding to the contrary is hereby reversed,. 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The Trial Examiner has found that the respondent supported the Association by permitting employees to attend meetings, particu- larly the meeting of December 5, 1941, during working hours, and by the participation of Borut, the respondent's secretary, in the discus- sion at the meeting of December 5, 1941. The record shows, however, that the early meetings held on company time were participated in by proponents of the Union as well as by employees who favored an unaffiliated organization. The meeting at which the employees finally voted for an unaffiliated union was held outside of working hours during a half-holiday. Furthermore, although the meeting of Decem- ber 5, 1941, was held in the morning, there is no evidence that the time was set "at the suggestion of Schachat," as found by the Trial Examiner; nor do we consider the fact that it was held in the morning significant, since there were both day and night shifts in operation at that time, and since working time would therefore have been lost, whatever the hour of the meeting. While Borut was present during part of this meeting, there is no showing that he participated in the discussion of group insurance. We therefore find, contrary to the Trial Examiner, that the evidence does not sustain the allegation in the complaint that the respondent contributed support to the Associa- tion. Having found that the evidence does not establish that the respondent dominated or interfered with the formation or adminis- tration of the Association, or'contributed support to it, we shall dis- miss the complaint insofar as it alleges that the respondent has en- gaged in or is engaging in unfair labor practices within the meaning of Section 8 (2) of the Act. 4. The Trial Examiner has found that the respondent discrimina- corily discharged Carl Bollinger on March 20, 1942, because of his membership and activities in the Union. The respondent contends, however, that Bollinger was discharged for fighting with employee William O'Brien in the plant. While we agree with the Trial Exam- iner that O'Brien was the aggressor in the altercation which took place between him and Bollinger, and that Bollinger in fact did not return O'Brien's blows, the record does not warrant a finding that Superin- tendent Seibel knew, or should have known, of these circumstances. On the contrary, Bollinger himself testified that, after Seibel's an- nouncement that he would have to discharge both O'Brien and Bol- linger for fighting, Bollinger asked Seibel how he knew that he (Bollinger) had been fighting, and that Seibel then called in several employees, all of whom agreed that they had seen Bollinger "hit O'Brien in the nose." Moreover, Bollinger's discharge took place approximately 5 months after he had ceased openly advocating the Union. During that period he joined and became an active member of the Association, which had a closed-shop contract with the respond- INTERSTATE MECHANICAL L'ABORATORI'ES, INC. 555 ent and which, under its constitution, forbade its members to "hold membership in or in any way be affiliated with any other union or labor organization" claiming jurisdiction over the work covered by its agreement with the respondent. Under these circumstances, it appears unlikely that the respondent knew of Bollinger's continued affiliation with the Union, or that it discharged him on that account. We are not convinced, on this record, that the respondent discriminated in regard to Bollinger's hire and tenure of employment because of his union activities, and we shall accordingly dismiss the, complaint insofar as it alleges that the respondent has engaged in or is engaging in'unfair labor practices within the meaning of Section 8 (3)'of the Act. 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, Interstate Mechanical Lab- oratories, Inc., New York City, and its agents, officers, successors, and assigns, shall:, 1. Cease and desist from in any manner interfering with, restrain. ing, or coercing its employees in the exercise of the right to self-organi- zation, to form, join, or assist labor organizations, to bargain col- lectively 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 Board finds will effectuate the policies of the Act: (a) Post immediately in conspicuous places at its plant in New York City, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraph 1 hereof; (b) Notify the Regional Director for the Second Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED, that the complaint be, and it hereby is, dismissed insofar as it alleges that the respondent has engaged in unfair labor practices within the meaning of Section 8 .(2) and (3) of the Act. INTERMEDIATE REPORT Miss Helen Humphrey and Mr Frederick R. Livingston, for the Board. Phillips, Mahoney cG Fielding, by Mr. W. E. Goldman, of New York City, for the respondent. Gray c€ Grossman, by Mr. Herman A. Gray of New York City, for the Asso• ciation. Mr. Frank Schemer, of'New York City, for the Union. , 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD !STATEMENT OF THE CASE Upon a charge duly filed on April 18, 1942, by Local 1207, United Electrical, Radio & Machine Workers of America, affiliated with the Congress of Industrial Organizations, herein called the Union, the National, Labor-Relations Board, herein called the Board, by the Regional Director for the Second Region (New York, New York), issued its complaint dated September 3, 1912, against Inter- state Mechanical Laboratories, Inc, herein called the respondent,,alleging that the respondent had engaged in and was engaging in unfair labor, practices affect-' mg commerce within the meaning of Section 8 (1) and (2) and Section 2 (0) and (7) of the, National Labor Relations Act, 49 Stat 449, herein called the Act Copies of the complaint accompanied by notice of hearing were duly served upon the respondent,' the Union, and Interstate Mechanical Laboratories Employees Association,' herein called the Association. With respect to the unfair labor practices, the complaint alleged in substance. (1) that the respondent did on or about March 20, 1942, discharge Carl Bollinger, its employee, and thereafter refused and continued to refuse to reinstate him to his former or substantially equivalent, post iion for the reason thai he joined or ;assisted•the Union or engaged,in other,concerted,activities for the purposes of-col- lective bargaining or other mutual aid or protection or because lie refused to join d or assist the Association ; (2) that the respondent from on or about June 12,1941, -to- the date of the complaint has vilified, disparaged,' and expressed disapproval of the Union; has interrogated its employees concerning their union affiliations: has.-urged, persuaded, threatened, and warned its,-employees to, retrain from assisting; becoming, or remaining members of the Union ; has urged, persuaded, threatened, and warned its employees to assist, become members of, ,or remain members of the Association; (3) that the respondent did on or about Octobei 6; '19-41,'initiate, form, sponsor, and proinote the Association, and from October`6, 1-941. to date the respondent has assisted, dominated, contributed to the support of, and interfered with the administration of said Assoeiatioii, (4) that the re- spondent,did on or about Noveniber,6, 1941, enter into a collective bargaining agreement with the Association, relating to the terms and conditions of its em- ployees,.providrng 'i'nter alma that the respondent will retain in its employ only members of the Association in good standing ""On or about'September 12,'1942, the respondent filed its answer in which it denied the unfair labor practice charges aid admitted the interstate character of its business , Affirmatively, the respondent alleged that the Association was a labor organization under the Act, that the resrondent had on of about Novem- ber 6, 1941, entered into a collective bargaining agreement with the Association providing, in part, for a closed shop ; that on or about March 20', 1942, Carl Bollinger had been discharged-for cause, and that his grievance thereafter had been sub- mitted to the Association, which had approved Bollinger's discharge On or about September 14, 1942, the Acting Regional Director for the Second Region granted the Association's motion to intervene, which had theretofore been filed with him by the Association On September 241, 1942. the Association filed an answer to the complaint herein, denilug the allegations of the complaint insofar as they pertain to the Association - Pursuant to notice, a hearing was held on October 1, 2, 5, 6, 7, 8, 9, 10, 12, 13, and 24, 1912, at New York, New Yoik, before the undersigned, Peter F Ward, the Trial Exanniiei' duly designated by the Acting Chief Trial Examiner. All parties were represented by counsel and participated in the hearing Full opportunity to be heard, to examine and cross-examine witnesses, and to' intro- 'Designation of the Association in the complaint omitted the word "Employees" from the title. The above is a correct designation INTERSTATE MECHANICAL LABORATORIES,' INC. 557 duce evidence bearing on the issues was afforded all parties During the hearing, both the respondent and the Association moved for the dismissal of the complaint. 'These motions were denied, except that ruling on such motions made at close of the hearing was reserved by the undersigned For the reasons set forth below, .such motions are hereby denied? At the conclusion of the hearing, counsel for the Board moved to conform the pleadings to the proof. The motion was granted. At the conclusion of the hearing, also, the parties were granted, and availed themselves of the opportunity to argue orally before the undersigned. Although the parties were notified of their right to file briefs, no briefs have been filed. Upon the entire record in the case, and from his observation of the witnesses, ,the undersigned makes the following: FINDINGS OF FACT .•I TILE BUSINESS OF THE RESPONDENT Interstate Mechanical Laboratories, Inc., a corporation organized under the laws of the State of New York, has its principal office and place of business in New ,York City. Although,,iiorilitzlly,e'it)ghged in the manufacture of tools„dies and related products, the respondent is now and for some time past has been engaged exclusively, in tl;e production of aircraft and precision parts for the United States Governnient,'to be used in coniiection with war purposes During the 6 months preceding the hearing herein, the respondent, caused steel and other materials,' used in its manufacture of the above described products, valued in excess of $10,000,` to be shipped into the State of New York to'its plant. During the same period, the respondent shipped approxinnitely '80 percent of its finished products, valued in excess of $100,000, to points outside the State of .New York. The respondent concedes the interstate character of its business 3 If TIIE ORCANIZA'i IONS INVOLVED Local 1207, United Electrical, Radio & Machine «'orkei S of Aiucrica, at6 iated i itli`the Congress of Industrial Organizations, is a labor organization admitting to membership certain employees of the respondent. Interstate Mechanical Laboratories Ern iloyecs Association'is an unaffiliated labor organization admitting to membership ceitain cinpl'oyees of the respondent. III TIIE •UNt'AIR LABOR PRACTICES A Domination and inteltelence 'malt the formation and administration of the Assoeialiou, alid contribution of support thereto; interference, restraint and Coe'I eia% 1. Chronology of events a Interference, restraint and coercion, The Union first began organizational activities at the respondent's plant in June 1b41, at which time it distributed leaflets to the respondent's employees. At the opening of the hearing, the respondent filed a motion foi a continuance, based upon the absence of a w.tnc^s, William O'Brian, whose test.niony was alleged to be material to the 8 (1) allegation of the complaint It was agieed by the paitics that evidence pei- taining to the allegations of the complaint charging violation of Section, 8 (1) and 8 (2) would be offnierl first; Ihat the deposition of the absent witness be obtained; and that .thereafter, evidence relating to the allegations of'violation of Section 8 (3) be adduced 3A IS Scl:achat is piesident, Il J Smith is vice piesident and Abi aliam Borut is secietarv ,of the respondent 558 DECISIONS OF NATIO\AL ' LABOR RELATIONS BOARD 1 During August, and particularly on or about August'28,'1941, the Union became more' active, distributing additional leaflets and membership application cards outside the plant.- On about August 29, 1941, a day or so after 'the' distribution of the Union's literature and application cards, Peter Seibel, superintendent of production, asked employee- Carl Bollinger whether Bollinger had theretofore signed a Union card. Bollinger inquired whether Seibel was "signing the men into the union"; Seibel replied by handing Bollinger a union card from a number which he had in his possession and which had been given to' him by other employees. Bollinger signed the card and returned it to Seibel with the statement "you can turn it in for me, Pete" 4 Bollinger then proceeded to the tool room where he obtained a tool. Upon his return he was stopped by employee Nal- weit,' in' whose presence and near whose machine the previous conversation had taken place. Kaiweit, in the presence of Seibel, stated to Bollinger that Bol- linger did not "know how well off he was in this shop . . ," and, pointing out various satisfactory working conditions, asked Bollinger "what do you want to bother with a union for?"' Bollinger's testimony, upon which the above is based, continued as,follows : I didn't reply to that. And Pete [Seibell took up the conversation. He had a card in his hand and he said, "This isn't the first card you have signed . . ." I said , "Maybe it's the 16th, Pete. Why?" So he said, "Well, I have heard-been hearing rumors about you, that- that you are handing out cards and that you are an organizer„ that you are a member yourself." So I told him that I had been working in the shop for 16, over 16 months and he had not heard a peep out of me before; why, should I start anything now?, He says, "Well, you are in it, aren't you?" So I said, "I am sympathetic, Pete. I think unions are a good thing. I wouldn't cross a picket line." So he said he had heard that from quite a number of fellows . . . Seibel then asked Bollinger how much he was earning and, upon receiving the reply that it was 70 cents an hour, asked Bollinger what he expected " the union to do" for him. Bollinger. replied'that the employees would receive 85 cents' an hour and a 50-hour week. Seibel thereupon stated that if the Union came into the plant "the bosses ...' could classify us all as apprentices and cut our salaries, cut our wages and we would get nothing." After further conversation along this general line, Seibel asked Bollinger whether he thought that the Union had enrolled a majority of the employees in the shop. Bollinger replied that he did not know. Bollinger then stated that he 'did not think the Union would have distributed its membership cards the previous evening if it already had a majority. Bollinger's testimony continued : ' So he (Seibel) said that-did I know what the union would do if it did have a majority, that they would pull us out on strike and we would be out on strike for a month and the company would not take us back ; if they did, they would cut our pay. So I said I didn't think that Mr. Schachat or Mr. Smith were that kind of people ; that if a majority of the men did want the union, that Mr. Schachat and Mr. Smith would sit down and talk with them. 4 Seibel's offers of the Union's membership applications to Bollinger, and later to Miller, as, described below, were plainly attempts on his part to ascertain whether they had already made application for membership in that-organization, and the undersigned so finds. INTERSTATE MECHANICAL LABORATORIES, INC. 559 And he said, "Oh, you don't know Mr. Schachat or Mr. Smith as well, as I do." I said, "Well, I know that is true." "Well," he said , "if-if the men want to be mean , they can be mean too." ... Pete said that if the union came in, conditions would not be the same in the shop, that the men would have to the the ,line, that they would not be allowed to wash up early, and . . . there would be more or less of a split-up in the shop ... Well, I said . . . I didn't see any reason why there should have to be a change in conditions. He says, "Well," he said, "things won't be the same" ... he said that Mr. Schachat and Mr. Smith were a couple of good slobs to work for but if the union came in, it would be different .. . Then he said something about what could the union do for you ; I ought,to ask some of the other men in the shop about the unions . . . That they had been in-in and out of unions and they could tell me . . . that the union had never benefited anyone ... ' .. . Pete said something about any man that joins a union is a dope . . . the union had never done anything for anyone .. . And then Pete said something that he couldn't advise me, that he wasn't even supposed to talk to me, but that'I ought to think about things, a young fellow like me who didn't know very much ought to take the advice of older men, or something of that sort, and that is why he was going around the shop, telling, w trning all the men what-what it was all about. Somewhere during this conversation Seibel also said that he thought "just a few of the kids here on the bench" were behind the Union, "that it would prob- ably blow over, that they tried it, before and it blew over and it would probably blow over this time." According to the uncontradicted testimony of employee Samuel Miller, which the undersigned accepts, in August or September 1941 Seibel asked him whether he had ever signed a Union membership application, and asked whether Miller wanted such an application card. Employee Theodore Adler testified that at the time the Union was distributing its cards in August 1941 Seibel asked him whether he knew "about what was going on in the shop as far as the Union, C. I O. was concerned" ; stated to Adler that the latter had been seen giving a union card to another employee, as well as signing such a card ; asked Adler "who was behind the organization in the shop of the C. I. 0."; stated that he did not see why the employees "should want a union" ; and related some of his past "experiences as a union man." 6 ° Seibel denied most Hof Bollinger 's testimony set forth above He admitted having a conversation with Bollinger at or about this time, but testified with reference to the card episode that Bollinger had come to him and.said, "I_understand you have.some union cards in your pocket," to which Seibel replied "Yes" and gave Bollinger a card, which'the latter signed and,returned to Seibel, "and I stuck it back in my pocket, and we laughed it off as a joke" However, on May 5, 1942 Seibel signed and delivered to an agent of the Board a statement which read in part as follows : "on the same day I was standing at the lathe behind Bollinger and I jokingly asked Bollmeer if he wanted a C I 0 card and that I had some. . Bollinger said O. B. and 'he took ,a card and signed it and returned to me-". When questioned as to other testimony of Bollinger and other Board witnesses, Seibel fre- quently replied, "I don't recall," "I don't think so„" "I don't remember," "Not that I recall" and "no sir , I don ' t believe I did." On the whole , Seibel proved to be an evasive witness. The undersigned credits Bollinger 's testimony above set forth and finds that Seibel made the statements substantially as testified to by Bollinger. ° Seibel did not deny that a conversation with Adler took place He denied parts of the conversation as related by Adler, did not "recall " other parts and did not "believe" that he, had stated still others. The undersigned credits the . testimony of Adler. 0 560 DEC[ISIONF-S OF ^TATIO\ALy LAl30R RELATIONS B09,RD Samuel Miller testified witliout contradiction, and the unclersigiied finds, that in August 1941 Max Horowitz , then a set-up man' said to him that employee Norman Goldberg, who had been introduced into the plant bi- Miller , "was sus- pected of being the source of trying to 'organize the CIO," that "somebody had to]d'the.office that it was a fellow that worked on the drill press . . . About a week after the 'above described convei sation between Sei el and Bollinger, Horowitz , according to the uncontradicted and credited testimony of Bollinger, asked Bollinger whether he had heal d any employees in the shop talking about a union and stated that the "office " had received a telephone call froin "some union" requesting collective bargaining negotiations. Meanwhile , between August ' 23 and October ' 9, 1941 approximately 47 of the respondent's employees signed applications for membership in the Union. Also between. October 1 and 13, 1941 , Alexander ;Gibb, an employee who subsequently became president of the Association , secured the signatures of 12 other employees to' Union application carde , whicri either he or the signers thereafter destroyed. The undersigned finds that by the above statements of Seibel and Horowitz, the respondent has interfered with, restrained , and coerced its employees in the exercise of rights guaranteed in Section_7 of the Act. It. The, Association On or about October 0, 1941, Murray Potemkin, an inspector, notified the em- ployees in the plant that a meeting of the employees was to be held that evening at 7. 00, p. in. in a nearby garage. , Although the regular clay shift does not end until S. OD p in daily, the meetn:g was held as scheduled:' among those present were 'Supervisory Employees-Ma'x Hoi owit^;^,Aiber-t Mitchell, Paul Eisler, James Williams, and Rudolph Hoehn' Potemkin opened the meeting with the statement • "We all know why we are here. Let's get through with this as quickly as possible." Bollinger was then elected presiding officer, and stated that the propose of the meeting, as he under- stood it, was to `determine whether the employees desired to be represented by the C I 0., the A. P. of L., an independent union, or no union at all Potemkin objected to the presence of Union organizers, but was overruled by the vote of a majority of the employees present ' Bollinger and others including the Union organizers spoke in behalf of the Union, while Potemkin,'Supervisor Mitchell, and others argued in favor of "a company union " Supervisor Williams made a number of antiunion inquiries and statements, including the statement that "the C. I 0 is .r bunch of dictatcrs," and Gibb, later president of the Association, asked,whether the ,C ,I 0 was not a Communist organization. On the following day, October 7, 1941, a second meetin' vas held at about'7: 00 p. m., on a vacant floor in the building wherein the respondent is located. It was attended by at least one half of the respondent's employees, including Supervisors Mitchell, Horowitz, Williams,' Eisler, and Hoehn. The merits of the Union were contrasted with those of an independent organization, and'a vote was taken to determine the type of union-with which'the employees would affiliate themselves. A majority voted in favor of the, Union. ' - ' The Union thereafter advertised a meeting for the night of October 13. That day Supervisor Mitchell spent the greater portion of his working time soliciting 7 As found below in Section 111-C-, set up men'at the respondent's plants are supervisory employees fn• whose statements and acts the'responilent is`responsitile 8 The evidence indicates ,' however, that the employees were not paid for time spent at 'this and other meetings of the Association. u The supervisory status of'these individuals , classified 'by the respondent as set-up men,- is in dispute.' As found below, 'tliey are supervisors foi whose acs ._ c :.itc _: nts 'the; respondent is responsible. ' INTERSTATE MECHANICAL LABORATORIES, INC. ' 561 employees to attend a rival meeting, which had been called for 4:30 o'clock that afternoon When Bollinger and others objected to Mitchell's promotion of this rival meeting,- Mitchell replied with the suggestion that all employees attend the meeting he was' sponsoring, to "get it straightened out." Mitchell also agreed to permit the Union's organizers to attend. - The meeting was • held as scheduled at 4.30 p • in 11 Present, in addition -to ordinary employees, were Supervisors Mitchell, Horowitz, Williams, Eisler and Hoehn. Mitchell presided, stating that the employees would have to choose between the, Union or, an independent union Statements were then made by Bollinger and others in fa'. or of the Union, while Mitchell; Gibb and others urged the selection of an independent organization. In his talk favoring an independ- ent,'Mitchell stated that some of the leaders of the C I 0. 'were not "any too good" and that the employees would have more freedom in an independent union` Bollinger stated that' the proposed independent union was "company dominated" or "company sanctioned", and that employees would not have'a truly independent organization if the independent union being proposed were formed. Bollinger and Miller testified in substance, and the undersigned finds, that Supervisor Mitchell informed the employees that they would obtain better cco- nonnc conditions through an independent union much more quickly than through a C I. O. affiliate; that if the C. I 0 requested recognition, the respondent would not consent and "would fight" the holding of a collective bargaining representa' tive election by the Boind, with the result that "the case-.might drag out any- where from three months to a half year before the men would get anything," whereas if they selected an independent union as their bargaining representative at this,mneeting; they would "get something right away"; that if the employees were not satisfied thereafter, they could later select the Union as their repre- sentative. Boliinger and :Miller further separately testified, and the under- signed finds, that Mitchell informed the' employees that they would not have to wait for increases in' salary if they organized an independent immediately, and that he "was in a position to say" that any increases which would be obtained fox the employees would be retroactive to the date of this meeting" The Union's organizer admitted at,the meeting that if the respondent decided to "fight" the Union, 3 months might elapse before the Board could conduct an election at the plant A vote was then taken and resulted in a majority voting in fa'.or of an independent union. Upon the suggestion of Supeivisor Mitchell or his brother, Alexander, an ennplovee, a "negotiating committee" Was next selected Mitchell who had not been 'selected. thereupon asked =tire employees whether they , desi•i ed ,that he be' omittedifroni this committee A motion was then made and carried that Mitchell be added to the committee, and he became its chairman. 'At the suggestion of Mitchell all the employees, except Bollinger and Adler, signed, then' names to a list purporting to authorize the-negotiating committee to act-as their bargaining agent 10 while Mitchell testified that Bollinger was soliciting employees to attend the Union nieetmg that night, Bollinger testified that be "attempted to speak" to another mmplo'.ee that morning, but bfore he could reach the latter's machine he noticed Sunci i ii ten dent Seibel 'coming toward him whereupon he, Bollinger, turned around and went back to his work Bollinger fuither testified that Seibel was present in the shop throughout the day while Mitchell spoke to employees about the earlier meeting";ibe undeisigned ciedits Bollinger ,,October 13 was'a legal holiday in New York and the plant closed at 4 30•p in that day' 12 Mitchell denied the statements attributed to him by Bollinger and Miller The and-r- signed accepts the testimony- of Bollinger and Miller both of ' whom were credible witnesses and gave plausible and 'consistent testimony., 'Mitchell , on the other hand , was an evasive witness ivhose 'testimdny did not impress the undersigned as being entirely ti ustwortby 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During working hours early the following morning, October 14, Mitchell and Gibb brought the list of signatures to the office of, the respondent, and the signa- tures were there checked by them and the respondent's secretary, Borut, against signatures of the employees, on cancelled checks. Testifying as to the precise purpose of this conference, Gibb stated that "to the best of my recollection the negotiating committee had designated, Mitchell and I to check the signa- tures .. . against the pay roll," and that although they informed Borut they, were there to check the names, Borut had not asked the purpose of such a check. Gibb further testified that he and Mitchell "had no hesitancy in showing that list of signatures to Mr. Borut, because Mr. Borut did not know what it was, whether a football list, a baseball list, or otherwise." Mitchell, however, testified that when the list of names was shown to Borut they went over the names with him and he, Mitchell, stated to Borut that "the negotiating committee wanted to see the employers" and that Borut had replied that they could not meet with the respondent before that afternoon. Borut testified that Mitchell and; Gibb-came into the office with "a list in their hand" and stated that they represented a majority of the employees of the shop, that he informed them they did not have any organization to his knowledge, that they "just had this sheet of paper" and he did not know whether he could discuss the matter with him. That afternoon the full negotiating committee met with the respondent's offi- cials, Schachat, Smith and Borut. According to Mitchell, the negotiating com- mittee informed the respondent's representatives that it desired to negotiate grievances, wages and other matters, to which the respondent's representatives replied that they could not discuss any agreement because the negotiating committee was not "the legal representative" and refused to look at the list of employees' names brought by the negotiating committee. According to Gibb's testimony at the hearing, President Schachat asked the committee what organi- zation it represented, and when the committee "couldn't give him any name of any organization, we couldn't show any proof other than the slip of paper with the names on it", Schachat refused. to deal with it on the ground that-it was not a "legal organization " Prior to the hearing, however, Gibb had signed a written statement in which he stated in part as follows : We asked the company to bargain with, us, but were told by Mr. Schachat and Mr. Borut that they couldn't see how they could bargain with us because they did not know what authority we had to speak for the men - They also said they would be ready to recognize us as representing the mesi if we had an organization. [Italics added.] 's I - Gibb also testified that the committee was not asked by the respondent for proof that it represented the-employees Borut testified that the committee was asked whether "they were an organization", and that "they were merely advising us that they had a list of men who wanted to, or who were organizing or were going to form or might have formed, a group " At this conference, also, Schachat showed to the committee a letter from the Union to the respondent, in which the Union claimed that it represented a majority of the respondent's employees and requested an immediate collective bargaining conference. With reference to,'the italicized sentence , Gibb testified that he told the Board's agent to whom he had given the signed statement, that the sentence, as phrased was not exactly accurate ! , Although offered an opportunity at the hearing at this point to rephrase the sentence, Gibb stated that there was no way he could change the phrasing Then, when questioned as to whether or not the statement as written had been made , he testified that he could not say definitely whether it was or was not made. Finally Gibb stated : "It may have been said and may not have been said." The undersigned finds that the state- ment contained-in Gibb's written statement was made . by the respondent. INTERSTATE MECHANICAL LABORAT ORIES, INC. 563 Following the above conference, the committee held a meeting during working hours, but without pay, presided over by Supervisor Mitchell. At the suggestion of Mitchell, it was-decided to organize the Association, give it its present name, employ an attorney, and call a general meeting of-all the employees in the plant. Membership cards were obtained that afternoon at a nearby printing shop, and the employees were thereafter notified, in the plant, during working hours, that a general meeting would be held at 7 p. in in the Henry Hudson Hotel" Mitchell informed Borut of the proposed meeting and the intention to hold it during work- ing hours. Borut agreed, stating also that he was not going to "tell us what to do one way or the other." It was necessary to shut the plant since no one "was going to work." - The meeting that night was presided over by Supervisor Mitchell who, at the outset, successfully insisted upon a vote of confidence for the negotiating com- mittee. Mitchell, as related by Bollinger, whom the undersigned credits, next complained that "the C I. 0." had "stabbed the men in the back" by sending to the respondent the demand for collective bargaining negotiations. Miller. testified, ,and the undersigned finds, that Mitchell, Gibb and other members of the negotiat- ing committee "told us that it would be perfectly all right to form an Independent union, but they had to have the men sign those membership cards to establish that they had the majority of the men in the shop." All employees present, with the exception of Bollinger, signed these cards." Thereafter the Association employed an attorney and the members of the negotiating committee took time off from work without pay, at least one of them without permission, to consult with him On October 18 the negotiating com- mittee and the Association's attorney met with representatives of the respondent and checked the signatures on the Association's membership cards. Negotiations 'between the Association and the respondent followed and on November 6, 1941, after the Association had threatened to call a strike unless the respondent agreed to its demands, the parties concluded a written agreement which included, in part, a closed shop provision. Prior to. consummation of this agreement, the respondent made no effort to check the Union's membership claims, contained in the latter's letter of October i3 Instead, on October 15, the respondent rejected the Union's request for recognition and collective bargaining in the following words. In view of the information furnished us and representations made by others, we believe you do not represent a majority of our employees. Under these circumstances therefore, we feel'it would not be'advisable to hold the conference you suggested. The Association held a number of meetings. In the latter part of November 1941, balloting was had to elect the officers of the Association. Bollinger, Potemkin, and Alexander Mitchell were nominated for president;' Bollinger re- ceived 36, Potemkin, 22, and Mitchell, 11, for the votes cast." Upon announce- ment of the results of the-balloting, Mitchell declared, according to Miller," whom the undersigned credits, that he "was very disappointed in the amount of ballots that had'been east;' that they did not represent a true majority of the 14 Working hours were still from 8: 00 a. in. to 8 : 00 p. in. 's Bollinger signed an Association membeiship card on October 14 in order not to be "isolated." 16 In reply to the question by counsel for the Association : "How did you feel about run- ning for president in a company-dominated union , Mr. Bollinger?" Bollinger replied: "I took the position that what we should try to do in the shop was to make a good union out of it, and the best way to do that was for the men'to obtain control of the Union. Our slogan was 'give the union [the Association ] back to the men.' 17 At the time of the hearing, Mitchell was Miller's foreman. 521247-43-vol. 48-37 -11 564 DECISIONS OF NATIONAL LABOR REiLATIONS BOARD men in the shop, and since there weren't enough ballots cast the, election was void."" Mitchell further stated that he would resign as shop chairman, as he could not work with Bollinger. An argument thereupon arose, and someone asked Mitchell why he-objected to Bollinger. Mitchell replied that Bollinger was "a rat" and added "Well, if you must know, the office objects to Carl Bol- linger." According to Bollinger, he then asked Mitchell whether an employee "had to have the o. k. of the office before he could become elected to an office in the union," to which Mitchell made no reply.19 On the following day, during a conversation with President Schachat, Bol- linger informed Schacht that Mitchell had stated at the meeting on the previous night that "the office" considered Bollinger uncooperative, and asked Schachat whether he would authorize Bollinger to state that he was considered coopera- tive. Schachat replied that he `didn't," "couldn't," and "won't say that.""' Schachat then asked Bollinger whether he liked to see "all this turbulance in the shop" and to Bollinger's negative reply, Schachat stated "Well, it has got to stop . . . I want all the men to be one big happy family." The Association held a meeting to adopt its constitution on December 5, 1941. At the suggestion of Schachat it was held from approximately 8 a. in.; it lasted the greater part of the forenoon.21 Because of Mitchell's objections, President- ,elect Bollinger was not permitted to preside. Since it was pay-day, Mitchell telephoned the respondent's secretary, Borut, and requested the latter to bring the employees' pay checks to the meeting; Borut complied with this request. While Borut was present, and after he had distributed the pay checks, the mat- ter of group insurance for the employees was brought up and he participated in the discussion. The group policy was later taken out and individual- policies ,under it were mailed to the respondent and distributed to the employees. Following the adoption of the constitution, a further meeting was held by the Association, at which permanent officers were elected. Electioneering at the 18 At this time there were about 120 production, maintenance, and toolroom employees 19 Following his election, Bollinger requested Mitchell to show him a copy of the contract between the Association and the respondent. Mitchell refused. Thereafter 'Bollinger re- quested the Association's attorney to get him a copy of the contract. The attorney tele- phoned Mitchell and the latter, when he arrived, advised the attorney not to tuinisb a copy of the contract to Bollinger. The attorney followed this advice At this tune also, the Association's attorney sought to "iron out the whole situation in the shop." Mitchell stated that this would not be necessary as Bollinger, who had been elected peesident of the Association by a majority of the votes cast, did not represent anyone in the shop. , 20 Schachat did not testify at the hearing, because the respondent claimed he was ill at that time. The respondent's counsel did not seek to obtain Schachat's deposition as was done in the case of another witness, did not make any offer of proof, and did not ask to .postpone the hearing or to adjourn it pending Schachat's recovery, nor did lie ask permis- sion to adduce Scliacbat's testimoy at any subsequent date pilor to issuance of the Inter- mediate Report by the undersigned. 21 As will be noted, this meeting, as well as others heretofore discussed were all during working hours, clearly interrupting the respondent's operations. At the bearing the .respondent's counsel objected to the presence throughout the hearing of a material witness for the Board, on the ground of his absence from the plant, threatened to interrogate him as to his draft status and possible exemption by virtue of engaging in defense work, "to show that be, has been away from defense work in this courtroom since last Monday"; and publicly announced that he intended to instruct the respondent to discharge the witness because of his absence from the plant while attending the hearing.. l'o mention was made by the respondent's ,counsel as to other employees, called to testify on behalf of the Asso- ciation. The respondent's counsel later also contended that the investigation by the Board's Field Examiner into the charges in this case had resulted in "a tie-up of production" In the plant, which he intended to report to the War Depaitment. In view of the respond- ent's persistent and general facilitation of the Association's meetings and other affairs, its contentions as to the Board's witness and examiner weie 'entirely unwarranted and plainly indicative of the respondent's predilection for the Association which was thus clearly indicated to other employees present at the hearing. INTERSTATE MECHANICAL LABORATORIES, INC. 565 plant preceded that meeting and was actively engaged in by Supervisor Mitchell, among others. Bollinger again became a candidate for the presidency but was defeated by Gibb. Supervisor Mitchell was elected chairman of the shop-grievance committee; he resigned in January 1942 upon receipt from the respondent of the official designation of foreman. The Association's funds, collected by Potemkin on the seventh floor, and by- Miller on the sixth floor of the plant, were thereafter placed in the respondent's safe at the plant, on at least one occasion, "because the money had to be on hand." c. The supervisory employees A dispute exists as to the status of the so-called "set-up" men. The Board's counsel contends that they are supervisory employees for whose acts and state- ments the respondent is responsible; the respondent and the Association contend - to the contrary. The individuals in question are Max Horowitz, Albert Mitchell, James Williams, Rudolph Hoehn and Paul Eisler During ,the period under consideration herein, from June to December 1941, the total number of production, maintenance and tool room employees at the plant rose from 99 to 132.23 Seibel at all times material herein has been the superintendent of production. During 1941 the respondent had no other officially-titled supervisors over its pro- duction employees ; as testified by Borut, the respondent's secretary, ". . . we don't. go in for titles . . ." 24 The only other persons with supervision over production work were the "set-up" men, Horwitz, Mitchell, Eisler, Hoehn and Williams. While it is true that these "set-up" men have no authority directly to hire and discharge, they nevertheless have the power, enhanced by the very nature of their duties, to advise, higher supervisory officials as to the work-per- formance of ordinary employees and to recommend the hire or discharge of indi- viduals. The "set-up'''lnen are more skilled than- the ordinary employees. With very few exceptions, the latter group consists of unskilled workers employed in the manufacture of products requiring a very high degree of mechanical perfection. In this process these employees require constant instruction and supervision, which is rendered primarily by the "set-up" men. It therefore cannot be believed that, as the respondent seems to argue, only one man-Seibel-had supervision over the 99 to 132 production employees in the plant in 1941. Practically all the evidence supports the conclusion, that the "set-up" men are supervisors. This evidence, briefly reviewed, credibly shows that at all times material herein all or some of the "set-up" men instructed other employees in the performance of their functions, criticized them, and at times would "bawl" them out; assigned work to employees ; had the right to insist that the method of operation indicated by them be followed; had to "exercise authority" td make employees perform their work properly ; supervised the. work ; were consulted by employees as to further work upon completion of their tasks; had recom- 22 The. supervisory status of the respondent's officers and Seibel, as well as of Horowitz and Mitchell after their official designation as foremen, is not in dispute. 23 During 1940 the respondent had between 35 and 63 production, maintenance and tool room employees, the lower figure being that of January 1940, with an increase in the number of employees until the figure of 63 was reached in December of that year Beginning with 65 such employees in January 1941, the respondent's pay roll increased thronrhout that year, reaching the maximum of 132 employees in December 1941 Between January and Septem- ber 194Q, the number of employees in the above categoiies jumped from 141 to 186 '21 Since at least the beginning of 1941 one Voi;t has been in charge of the tool-room and Eisler in charge of the "tip" department They each have about 10 men under their super- vision, none of whom are engaged in the plant's main production work In November 1941 one Barrett was placed in charge of the production night crew. 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mended the employ of outsiders; were asked for raises in pay; were identified by employees as "foreman ;" were consulted by employees with reference to past or prospective absences from the plant ; and that the functions and duties of Mitchell and Horowitz subsequent to their receipt of the official designation of "foreman" in 1942, after which they admittedly are supervisors, were substantially the same as those which they performed as set-up men in 1941. There is other testimony in the record pertaining to the duties and functions of the "set-up" men as a group and as individuals.` The Board has held that set-up men, as well as other types of employees per- forming like functions, are supervisory employees.' The Supreme Court in the case of International Association of Machinists v. N. L. R. B., 311 U. S. 72, at 80, has said : The employer, however, may be held to have assisted the formation of a union even though the acts of the. so-called agents were not expressly authorized or might not be attributable to him on strict application of the rules of respondent superior. We are dealing here not with private rights . .. nor with technical, concepts pertinent to an employer's legal responsibility to third persons for acts of his servants, but with a clear legislative policy to free the collective bargaining process from all taint of an employer's compulsion, domination, or influence. The existence of that interference must be determined by careful scrutiny of all the factors, often subtle, which restrain the employees' choice and for which the employee may fairly be said to be responsible. The respondent is chargeable with and responsible for the acts of its supervisory employees even though they do not have the right to hire or discharge. As stated by the lower court in the Machinists case, 110 F. (2d) 29, 44 (App D C) : Nothing in it (the Act) requires such representation be limited to officials having any particular degree of authority, such as "hiring and firing," "disciplinary power", or even "supervisory capacity United Electrical, Radio & Machine Workers of America, the parent organiza- tion with which the Union is affiliated, does not admit to membership foremen, but does admit working foremen in specific instances where. the local involved desires their inclusion. None of the "set-up" men were members of the Union 25 The basis for these facts is the testimony of the respondent's secretary, Borut, and Mitchell, Horowitz, and others. Wherever there is a conflict in the evidence respecting this phase of the case, the undersigned credits the testimony stated in substance above 1 The testimony of Borut in connection with Mitchell's "promotion" in 1942, is particu- larly revealing. He' testified : Q. Was there anyone who preceded Mr. Mitchell as set-up foreman or didn't he carry any such designation? A. No, there wasn't any such designation. We were going,' we were giving no production names. Q. For about how long a period prior to the posting of the notice [in January 1942] about his being a supervisor was he [Mitchell] performing the duties of a set-up foieman? A. That would take you back practically to the beginning of all our production programs. The respondent began its present production program in 1940. 26 For example, Borut identified Eisler, whom Mitchell included among the five "set-up" men in the plant in 1941, as the individual in complete charge of the "tips" department, which had been in existence for some time and which, at the time of the hearing, consisted of about ten employees The position of Eisler, according to Gibb, does not dife:r from that of any other "set-up" man Eisler was also in charge of that department when it had• but two to four men. 27 See Matter of Hughes Tool Company, etc, 27 N. L R B 836; Matter of Germain Seed and Plant Company, etc., 37 N L R. B 1090; and others. i ' INTERSTATE MECHANICAL LABORATORIES, INC.' 567 and there is no evidence that the Union admitted working foremen or "set-up" men to membership. Moreover, while a union may admit supervisory employees to membership, such employees may not exert their influence or authority as management representatives to shape the organizational efforts of non-supervisory employees, especially where, as here, the labor organization affected is in the process of formation.'" Upon the entire record the undersigned concludes and finds that, at all times material herein, Horowitz, Mitchell, Williams, Eisler, and Hoehn, as well as the other supervisors concerning whom no issue has been made, have been, and now are, supervisory employees, and that the respondent is responsible for and chargeable with their statements and acts. CONCLUSION Shortly after the Union inaugurated its organizational activities among the respondent's employees, Superintendent Seibel and other supervisory employees began to make known the respondent's hostility toward it, and Seibel's state- ments, in particular, clearly indicated that the respondent was opposed to bonafide union organization at the plant. As related above, Seibel sought to ascertain the extent of the Union's member- ship and organizational progress; threatened that organizational success would produce definite disadvantages to the employees, including the lowering of wages ; prophesied the interruption of operations by strikes and consequent loss of employment by or lowering of pay of strikers ; indicated that the respondent would not deal with the Union even if it succeeded in enrolling a majority of the employees in the plant in its membership; disparaged unions in general; and in other ways interfered with the employees' concerted activities at the plant. Supervisor Horowitz also engaged, to a limited extent, in such improper activities. To insure itself against the possibility of Union organizational success, the respondent, through its supervisors, instituted a movement to bring into existence a rival labor organization Significantly, this movement had its inception at about the time that the Union and employee Gibb together had in their possession Union membership applications from almost a majority, if not an actual majority, of the employees in the plant Supervisory employees of the respondent not only attended the primary, meetings preceding the actual formal organization of the Association, but actively participated in and, in fact, were the primary advocates for the formation of that organization. Supervisors Mitchell and Williams, the most active of the supervisors in this respect; made plain to the ordinary employees, not only through their very presence and energetic participa- tion, but also by their avowed transmittal of the respondent's desires, that the respondent was the principal behind the Association's inception. Openly announc- ing that the respondent would not grant recognition to the Union and would contest any effort to hold an election under Board auspices to determine the collective bargaining agency for the plant, Mitchell pointed out that he "was in a position to say" that selection of the Association would result in an immediate and retroactive increase in wages. The meetings of October 14, the conflicting versions as to what occurred at the morning meeting, the respondent's insistence upon a formal organization, as well as the other occurrences, related above, plainly fit into the entire picture of domination and interference. 21 See N. L. R.-B. v. Christian Board of Publications, 113 F. (2d) 678 (C. C. A. 8). See also Matter of Decatur 'Iron & Steel Company, etc., 29 N. L. R B. 1044. 1 568 DECISIONS OF NATION-AL LABOR RELATIONS BOARD When Bollinger successfully ran for .the presidency,of the Association, the respondent, 'through Supervisor Mitchell, instituted vigorous measures to secure his removal. Aside from the fact of his supervisory status, Mitchell's public expression of the respondent's desires in the premises,'which Schachat not only refused to counteract but in other ways affirmed, as well as other expressions of the respondent's sentiments by Seibel and others, constituted potent support for and plain interference in the internal affairs of the Association. 21 The respondent's dedication of working time-even though it was without pay-also constituted open and plainly recognizable support for the Association. Although the holding of the Association's meetings during working hours clearly interrupted operations in the plant, since practically all of the, employees were present at some of the meetings and a substantial number attended others, the respondent tolerated the interruptions. In fact, on December 5, 1941, almost all of the employees remained away from work the entire morning, and to facilitate the Association's affairs on that day, the respondent's secretary left his job to bring to the meeting and there distribute the employees' weekly pay checks. His participation in the group insurance discussion could have been interpreted in no other way than approval of the Association's plans. In addition, the organizers of the Association were apparently given a free hand in circulating throughout the plant during working hours, soliciting em- ployees to become members of the Association and to attend its meetings. Bollin- ger's testimony as to what occurred when lie sought to do likewise on behalf of the, Union likewise confirms the conclusion as to which organization the respondent openly favored. The support, whicli the Association received by the respondent's discharge of Bollinger, which the undersigned finds to have been illegal in Section III-c below, was likewise not insubstantial. The effect upon the Union's organizational efforts of his discharge, requires no discussion. - Upon the entire record the undersigned concludes and finds that the respond- ent has dominated and interfered with the formation and administration of the Association, and has contributed support to it, thereby has interfered with, restrained and, coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. B The discriminatory discharge of Carl Bollinger Carl Bollinger was employed by the respondent on April 29, 1940, and con- tinued in its employ until his discharge on March 20, 1942. According to Bollinger, corroborated by Seibel in this respect, the respondent was satisfied with Bollinger's work. Bollinger joined the Union on or about August 23, 1941, and continued his membership thereafter, and as stated above, became and was recognized as one of its most active proponents, engaging extensively in its efforts to organize the plant. The vigor with which Bollinger opposed the attempts to organize the Association and the -respondent's subsequent domination and control of that organization, also has been detailed above. Bollinger's open attempts to seize control of the Association were known to and opposed by the respondent's super- visors. Supervisor Mitchell openly stated that "the office objects to Carl Bollin- ger", and President Schachat refused to permit Bollinger to state that the respond-, ent did not consider Bollinger "uncooperative." In its attempt to form a rival organization to offset the Union, the respondent's, chief obstacle clearly was Bollinger. 20 Subsequently, as shown in•Section III-C, below, President Schachat further openly in- terfeied in the Association's internal affairs by demanding the discontinuance of the circula-' tion of a petition protesting in effect Bollinger 's discharge. , INTERSTATE MECHANICAL LABORATORIES- INC. 569 On March 20, 1942, the date of Bollinger's discharge, one William O'Brien, who had been in the respondent's employ for about'2 months at that time,-rushed at Bollinger at the latter's machine and, stating, "I hear you were shooting your mouth off at the meeting last night", struck Bollinger and pushed him into a barrel. Bollinger broke away from O'Brien and, without `returning any, of the ilatter's blows, ran to another point in the shop, where other employees inter- cepted O'Brien.- About 15 minutes ,later, Seibel approached Bollinger, and asked what had occurred. Upon Bollinger's reply that he did not know what it was all' about, Seibel left, returning shortly thereafter and directing Bollinger to go to his, Seibel's office. When Bollinger, accompanied by employee Adler, reached'Seibel's office, they found O'Brien there. Seibel asked what happened, and Bollinger stated that he had been attacked by O'Brien. Seibel then accused Bollinger of "fighting", which accusation Bollinger denied. Seibel then stated, "We can't have anything like that in the shop. I will have to fire the two of you " Bollinger asked Seibel whether he was interested in the reason for the attack ; Seibel replied that O'Brien "must have had a reason," and that respond- ent would not permit anything like that in" the shop, and that both men were discharged." At this point O'Brien again attacked Bollinger and Bollinger asked Seibel whether, it looked as though Bollinger were fighting. Seibel replied, "I am not interested. He has probably got a reason and whatever the reason is it is none of my, concern." A number of employees were thereafter called into the office and made state- ments as to whathad' occurred on the floor. All agreed that O'Brien was the aggressor and that Bollinger had sought to run away. The adjustment committee of the Association was next called in to deal with the matter. The committee interviewed O'Brien and Bollinger separately and then, by a vote of four to one, approved Bollinger's discharge. Bollinger and O'Brien were given 'their pay and finally discharged. It is undisputed that at that time Seibel knew, and had known for sometime, that O'Brien was about to be inducted into the Army. That evening a group of employees discussed Bollinger's discharge, concluding that he had been "framed." They prepared a petition, which was thereafter circulated among employees in the plant, calling for a special meeting of the Association for the purpose of considering the adjustment committee's action with regard to Bollinger. The next morning President Schachat approached em- ployee Adler, while the latter was at work in the plant, and sought to induce him to procure the withdrawal of the petition. Schachat stated in part, "What is this about a petition being drawn up by the boys, the boys signing some peti- tion? . . . I am asking you as a leader of the men in the shop . . . if you tell them to stop . . . they will stop . . ." Schachat likewise approached employee Miller regarding the petition S2 Miller informed Schachat that he felt Bollinger had been "framed." Thereafter about 28 employees withdrew their signatures from the petition. On March 30, 1942, the petitioned :meeting, presided over by Gibb, was held ; after some discussion, a majority of those present 'approved the adjustment committee's action. During August 1941 Supervisor Williams had an altercation in the plant with employee Niarakis, in which Williams removed his apron and proceeded toward 20 While there is some testimony that Bollinger did strike back, It Is undisputed that O'Brien was the aggressor w Seibel admits that he made no effort to ascertain who provoked the fight. 30Miller also testified 'that on the same morning he saw Joe Matusevich showing-one of the petitions to William Barrett, foreman of the night shift, in the presence of Supervisor Williams - 11 I 570 DECISIONS OF' NATIONAL LABOR, RELATIONS BOARD Niarakis as, though to attack him. Williams was stopped by Seibel. Neither Williams nor Niarakis were discharged. In the fall of 1941, Employee Matu- sevicb, a witness for the respondent, had a dispute with employee 'Wallheimer in the shop during working hours. Seibel had insisted at that time that Matu- sevich apologize to Walheimer, if there had been a fight. Neither of the partici- pnnts wns rlicrhnruPd CONCLUSION From the foregoing and the entire record, it is clear that Bollinger was the Union's most aggressive proponent in the plant. Upon the inception of the company-dominated Association, Bollinger made every effort to wrest control of that organization from the respondent and its supervisors. Bollinger's actions in this respect, and his constant championship of the Union were obviously known to and resented by the respondent, as is indicated by the various statements and acts of Mitchell, Schachat and others. That Bollinger's work was otherwise satisfactory is not disputed ; in fact, Seibel had volunteered the statement at the hearing that Bollinger was "a good man on the job.,' The respondent's contention that Bollinger was discharged, because of the altercation with O'Brien is, under the circumstances, not convincing. At least 2 previous disturbances in the plant between employees had not resulted in the imposition of the drastic penalty of discharge! The finality with which Seibel rejected Bollinger's contention'that he had not instigated the fight and, had not exchanged blows with his aggressor, Seibel's knowledge at the time of the dis- charge that O'Brien was about to be inducted into the armed forces of the United States,, taken together with all the preceding events and viewed in the light of the respondent's open hostility toward the.Union and its leaders, convinces the undersigned that the respondent seized this opportunity to discharge Bollinger for his union membership and activities. Upon the entire record the undersigned finds that the respondent, by discharging and thereafter refusing to reinstate Carl Bollinger has discriminated in regard to his,hire and tenure, thereby discouraging membership in the Union, and that thereby the respondent has interfered with, restrained and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. IV.. THE EFFECrr OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth ins Section III 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. Upon the foregoing findings of fact and upon the entire record in the case the undersigned makes the following: V. THE REMEDY Having found that the respondent has engaged in certain unfair labor prac- tices, the undersigned will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. 1 It has been found that the respondent dominated and interfered with the formation and administration of the Association and contributed support thereto. In order to effectuate the policies of the Act and free the employees of the respondent from the effect of such unfair labor practices, which constitute a continuing obstacle to the exercise by the employees of the rights guaranteed in the Act, the undersigned will recommend that the respondent withdraw INTERSTATE MECHANICAL LABORATORIES INC. , 571 recognition from and completely disestablished the Association as the repre- sentative of the respondent's employees for the purpose of collective bargaining. The contract granted to the Association was the culmination and perpetuation of the' respondent's unfair labor practices of encouraging membership in and rendering assistance to.the Association while discouraging membership in the Union. Therefore, the undersigned will recommend that the respondent cease and desist from giving effect to the contract dated November 6, 1941, as well as to any extension, renewal, modification or supplement thereof, and to any superseding contract which may now be in force. Nothing herein shall be taken to require the respondent to vary those wages, hours, seniority and other such substantive features of its relation with the employees themselves, which the respondent established in performance of the contract as extended, renewed, modified, supplemented or superseded. It has been found that the respondent discharged Carl Bollinger on March 20, 1942, and thereafter refused to reinstate him, for the reason that he joined and assisted the Union and engaged in concerted activity for the purposes of collective bargaining and other mutual aid and protection. The undersigned will therefore recommend that the respondent offer Carl Bollinger immediate and full reinstatement to his former or substantially equivalent position and make him whole for any loss of pay he may have suffered by-, reason of his discharge, by payment to him of a sum equal to the amount which he would normally have earned as wages from the date of his discharge to the date of the offer of reinstatement, less his net earnings during said period.' Upon, the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following: C,oNCLusions OF LAW 1 Local-1207, United Electrical, Radio & Machine `Yorkers of America, affiliated with the Congress of • Industrial Organizations, and Interstate Mechanical Laboratories Employees 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 Interstate Mechanical Laboratories Employees Association and contributing sup-' port thereto the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Carl Bollinger thereby discouraging membership in the Union and encouraging mem- bership in the Association, the respondent has engaged in and, is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of 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. 5. The aforesaid, labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 33 By "net earnings" is meant earnings less expenses, such as for transportation, room, and board, incurred by an employee in connection with obtaining work elsewhere than for ,the respondent , which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America , Lumber and Sawmill Workers Union, Local 2590, 8 N. L R B. 440. Monies received for work per- formed upon Federal, State, county, municipal , or other work-relief projects shall be con- sidered as earnings . See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7; 572 DECISIONS 'OF NATIONAL' LABOR RELATIONS BOARD RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law the under- signed recommends that the respondent,, Interstate Mechanical Laboratories, Inc., New York, New York, and its agents, officers, successors, and assigns shall : 1. Cease and desist from : (a) Dominating or interfering with the administration of Interstate Mechanical Laboratories Employees Association or the formation or administration of any other labor organization of its employees and from contributing support to said labor organization or any other labor organization of its employees; (b) Recognizing Interstate Mechanical Laboratories Employees Association as 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 work ; (c) Giving effect to the contract dated November 6, 1941, between the respondent and Interstate. Mechanical Laboratories Employees Association, as well as to any extension, renewal, modification, or supplement thereof, and to any superseding contract with said Association which may now be in force. Nothing in these recommendations, however, shall be taken to require the respondent to vary these wages, hours, and other substantive features of its relations with the employees themselves. which the respondent may have established in conformity with this contract as extended, renewed, modified, supplemented, or superseded. (d) Discouraging membership in Local 1207, United Electrical, Radio & Ma- chine Workers of America, affiliated with the C. I. 0., or any other labor organ- ization of its, employees, by discharging or refusing to reinstate any of Its employees or in any other manner discriminating in regard to their hire and tenure of employment or any term or condition of employment ; (c) In any other manner interfering with, restraining, or coercing its em- ployees in the exercise of the rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the' purposes of collective-bar- gaining 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 effectuate the policies of the Act : . (a) Withdraw' all recognition from, and completely disestablish, Interstate Mechanical Laboratories Employees Association as the representative of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, rates of pay, wages, hours of employment, or other conditions 'of employment; (b) Offer to Carl Bollinger immediate and full reinstatement to his former ,or substantially equivalent position without prejudice to his seniority or other rights and privileges ; ' (c) Make' whole Carl Bollinger for any loss of pay he may have suffered by reason of the discrimination against him by payment to him of a sum of money equal to the amount which he normally would have earned as wages from the date of his discharge to the date of the offer of reinstatement, less his net earn- ings a4 during such period; (d) Post immediately in conspicuous places at its plant, New York, New York, and maintain for a period of not less than sixty (60) consecutive days from the date of posting, notice to its employees stating: (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraph -1 (a), (b), (c),, (d) and (e) of these recommendations; (2) that the respondent ^+ See footnote no. 33 supra. INTERSTATE MECHANICAL LABORATORIES, INC. 573 will take the affirmative action set forth in paragraph 2 (a), (b) and,(c) of these recommendations; (3) that the respondent's employees are free to become or remain members of Local 1207, United Electrical, Radio & Machine Workers of America, affiliated with the Congress of Industrial Organizations, and that the respondent will not discriminate against any of its employees because of membership or activity in that organization ; (e) Notify the Regional Director for the Second Region in writing within ten (10) days from the date of this Intermediate Report what steps the respondent has taken to comply herewith. It is' further. recommended that unless on 'or before ten (10) days from the receipt of this Intermediate Report the respondent notify said-Regional Director in 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 28, 1942, any party may within fifteen (15) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II' of said Rules and Regulations, file with the Board; Shoreham Building, 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 upon all motions or objections) as it relies upon, together with an original and four copies of a brief in support thereof.' As further provided in' said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of the order transferring the case to the Board. W Dated November 26, 1942. ARD, ETER F. Trial Examiner. 1