Century Projector Corp.

In the Matter of CENTURY PROJECTOR CORPORATION and LOCAL -475, UNITED ELECTRICAL, RADIO, AND MACHINE WORKERS OF AMERICAS C. I. O. -and DISTRICT 15, INTERNATIONAL ASSOCIATION OF MACHIN- IST§, A. F. OF L., PARTY TO THE CONTRA.'CT Case No. C-2518-Decided May 10, 1943 DECISION AND ORDER On January 30, 1943, the Trial Examiner issued his Intermediate Report in the above-entitled proceeding, finding that`the respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action as set out in the copy of the Intermediate Report attached hereto. Thereafter, the respondent and the Machinists filed exceptions to the Intermediate Report and the respondent filed a brief in support of its exceptions. Pursuant to notice served on all parties, a hearing for the purpose of oral argument was held before the Board in Washington, D. C., on April 20, 1943. The respondent and the United were represented by counsel and participated in the argument. The Board has considered'the rulings of the Trial Ex- aminer at the hearing and finds that no prejudicial error was com- mitted. The rulings are hereby-affirmed. The Board has considered the Intermediate Report, the exceptions, the respondent's brief, and the entire record in the case, and hereby adopts the findings, con- clusions, and recommendations made by the Trial Examiner. 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 Century Projector Corporation, Brooklyn, New York, its officers, agents, successors, and assigns, shall : 1. Cease and desit from : (a) Discouraging membership in Local 475, United Electrical,, Radio and Machine Workers of America, C. I. 0., or any other labor 49 N L. R. B., No. 93. _ 636 CENTURY PROJECTOR CORPORATION 637 organization of-its employees, or encouraging membership in. Dis- trict 15, International Association of 'Machinists, A. F' of L., by discharging any of its employees or in any' other manner discriminat- ing in regard to their hire and tenure of employment or any term or, condition of their employment; . (b) Refusing to bargain collectively with Local 475, United Elec- trical, Radio and Machine Workers of America, C. I. 0., as the exclusive representative of its employees in the appropriate unit, as determined by the Trial Examiner in his Intermediate Report, in respect to rates of pay, wages, hours of employment, or other terms or conditions of employment; (c) Recognizing, or in any manner dealing with, the Machinists as the exclusive representative of any of, its employees, unless and until such labor organization is certified as such exclusive representa- tive by the Board; (d) Giving effect to the contract, dated September 30, 1942, or any extension, modification, or renewal thereof, or any other contract it may have entered into with the Machinists; (e) 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) Offer to Eugene Decker and Neil Morrison immediate and full reinstatement to their former or substantially equivalent positions' without prejudice to their seniority and other rights and privileges; (b) Make whole Eugene Decker, and Neil Morrison for any loss of pay they may have suffered by reason of the respondent's discrimina- tion against them by payment to each of them of a sum of money equal to that which he normally would have earned as wages during the period from the date of his discharge to the date of the respondent's offer of reinstatement, less his net earnings during said period; ' (c) Upon application by Henry Persky within forty (40) days after his discharge from the armed forces of the United States, offer' him immediate and full reinstatement to his former or a substantially equivalent position without prejudice to his, seniority or other'rights and privileges; _ • _I . ° (d) Make whole Henry Persky for any loss of earnings he may have suffered by reason -of, the respbndent's"discrininatioii against him by payment to him of a sum of money equal to the amount he normally would have earned as wages during the periods (1) between the date of -his discriminatory discharge by the respondent and the date of his 638 DECISIONS OF NATIONAL LABOR `RELATIONS BOARD - induction into military service, and- (2) between' a' date five (5)- days after Persky's timely' application for reinstatement and the date of the respondent's offer' of reinstatement, less his net earnings during each of-these' periods; - (e) Upon request, bargain collectively with Local 475, United Elec- trical, Radio and Machine Workers of America, C. I. 0., as the exclu- sive -respresentative of all employees within the appropriate unit described above, with respect to rates of pay, wages, hours of employ- ment, and other terms and conditions of employment; - - (f) Withdraw and withhold all recognition from District 15,'Inter-' Rational Association of Machinists, A. F. of L., as the representative of any of its employees for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms or conditions of employment, unless and until that organization has been certified by the National Labor Relations Board as the representa- tive of the respondent's employees within an appropriate unit; (g) Post immediately in conspicuous places at its plant at 1 Junius Street, Brooklyn, New York, 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), (d), and (e) of this Order; (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a), (b)-, (c)', _(d), (e), and -(f) of this Order; and (3) that the respondent's em- ployees are free to become or remain-members of Local 475, United Electrical, Radio and Machine Workers of America, C. I. O:, and that the respondent will not discriminate against any employee be- cause of membership in or activity on behalf of that organization. (h) 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: - - MR. GERARD D. REILLY took no `part in the consideration of the above Decision- and Order. INTERMEDIATE REPORT Mr. Cyril W. O'Gorman,, of New York, N. Y., for the Board. - Satterlee cE War geld, by Mr. R. Randolph Hicks, of New' York, N. Y., for the respondent. - ' Mr. Frank Scheiner and Miss Milrred Roth, of New York, N. Y., for the United.- - - Mr. John T. Sullivan, of New York, N. Y., for the Machinists. ",'As provided in paragraph' 2-(c) of this Order. CENTURY PROJECTOR CORPORATION 639' STATEMENT OF THE CASE Upon a third amended - charge duly filed on December 9, 1942, by Local 475, United Electrical , Radio & Machine Workers of America , C. I. 0, herein called ,the United; the National Labor Relations Board, herein called the Board, by ,the Regional Director for the Second Region (New York, N. Y.), issued its complaint'dated December 9, 1942, against Century Projector Corporation , herein called the respondent , alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 ( 1), (3), and (5) and Section 2 (6) and ( 7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and notices 'of hearing thereon, were duly served upon the respondent ,- the United and District 15, International Association of Machinists , A. F. of L., herein called the Machinists. With respect to the unfair labor practices , the complaint alleged, in substance, that: ( 1) the respondent discharged Henry Persky on or about July 9, 1942, and Eugene Decker and Neil Morrison on or about July 10 , 1942, and thereafter refused to reinstate them, because they joined or assisted the United and engaged in other concerted- activities for the purposes of collective bargaining or other mutual aid or protection ; (2) that the respondent on July, 13,4942, refused to bargain collectively with the United in respect to rates of pay, wages , hours of employment or other conditions of employment, although the United had since July 10, 1942, been designated by a majority of -the respondent 's employees as their bargaining agent in an appropriate unit; ( 3) that the respondent from on or about July 9, 1942, to the date of the issuance of the complaint , has vilified, disparaged and expressed disapproval of the Union, has interrogated its em- ployees concerning their union affiliations, has urged , persuaded , threatened and warned its employees to refrain from assisting , becoming members of or remaining members of the United , has urged , persuaded, threatened and warned its employees to assist, become members of or remain members of the Machinists ; and (4) that the respondent entered into a contract with the Machinists at a time when due to the unfair labor practices engaged in by the respondent that organization did not represent an uncoerced majority of the employees. The complaint further alleges that this contract interferes with , restrains and coerces the respondent 's employees and that its existence or renewal is invalid under the Act. On or about December '14, 1942, the respondent filed its answer in which it denies that it engaged in any of the unfair labor practices alleged by the complaint. The answer admits that Persky was discharged on the date set forth in the complaint and that it has since refused to rehire him and sets forth affirmatively that Decker was released on his own request while Morrison was laid off for "lack of work in the capacity in which he was employed " Pursuant to notice, a hearing was held in New York City in the period between December 21 and December 30, 1942, before'the undersigned, Charles E. Persons, the Trial Examiner duly designated by the Chief Trial Examiner. The Board, the respondent and the United were represented by counsel and the Machinists by a union official. All parties participated in the hearing . Full opportunity to be heard , to examine and cross-examine witnesses , and to introduce evidence was afforded all parties . On the last day of the hearing the Board moved to amend the , complaint by adding an allegation that Seymour Zwisohn had been discriminatorily discharged . This motion was denied . At the conclusion of the hearing oral argument , participated in by the Board , the respondent and the Machinists , was held before the Trial Examiner . The parties were duly notified that they had the privilege of presenting briefs for the consideration of the Trial Examiner . All parties waived the presentation of such briefs. Upon the entire record in the case the undersigned makes the following: 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I. ITHE BUSINESS OF THE RESPONDENT Century Projector Corporation, was organized in 1928 under the laws of the State of New York. It maintains its principal office at 729 Seventh Avenue, New York City. Its factory is located at 1 Junius Street, Brooklyn, N. Y. where it manufactures, sells and distributes motion picture projectors and parts. The principal raw materials purchased by the respondent for use in its business are 'castings, steel, formica and ball bearings. During the six-month period pre- ceding 'November 1, 1942, the respondent purchased approximately $44,000.00 worth' of such materials, of which about 50 percent were shipped to it from sources outside,the State of New York. During the same period the respondent produced approximately $306,600 00 worth of finished products. Of these, about •33% percent were shipped from its 'plant in, Brooklyn' to -points outside the State of New York. In July 1942, about 50 percent of the products were manu- factured and sold under contracts with agencies of the United States for use in the prosecution of the war. - This percentage rose to 70 percent by December 21, '-when'this.hearing opened. The respondent admits that it is engaged in inter- state commerce within the meaning of the Act. -. a II. THE ORGANIZATIONS INVOLVED Local 475, United Electrical, Radio & Machine Workers of America, C. I. O. and District 15, International Association of Machinists , A. F. of L., are labor organizations admitting td membership employees of the ,xespondent. III. THE UNFAIR LABOR PRACTICES - A. The discriminatory discharges - 1. Background and chronology of events The plant now operated by the respondent was organized in 1921 by Sam Kaplan, then doing business in his own name, and now the respondent's general manager. About 1926 the business was incorporated as the Sam Kaplan Manu- facturing & Supply Company to which the respondent became successor in interest in 1928. During the entire period since 1921 Kaplan has been the active ,manager of the enterprise. Continuously from 1913, he has been a member of the Motion Picture Machine Operators Union, Local 306, affiliated with the ,American Federation of Labor. He served two terms as president of Local 306, the second of which was in 1932. From some date prior, to July 1942, he has been, and was still at the time of the hearing; a member of the Local's executive board. On June 26, 1942, Morrison was hired as a bench hand in the respondent's plant. As shown by his permanent record card, he had been a member of the -United since January 1942. Shortly after being hired Morrison began attempts to organize the respondent's plant. He enlisted the cooperation of Persky, who in turn persuaded) Decker to join with them in their effort. At first they at- tempted to conceal their union activities. On July 7, however, Morrison secured from the United a supply of membership application cards and thereafter Persky and Morrison more openly solicited signatures. Their success is indicated by the fact that but 2 of the application cards in evidence are dated earlier than July 8; 9 were signed that day and 18 on July 9. CE'NT'URY PROJECTOR CORPORATION 641 Persky testified that during the afternoon of July 9 he received a note from 'Angelo Sparaco, a bench lathe operator whose work place was near Persky's. The note said: "The boss is wise.' You better watch out."' Persky testified further that when later' lie asked Sparaco the meaning of this warning he was told" that Sparaco's foreman, Arthur Downing, had said that "The boss was wise to the union activity in the shop and . . that if he [Sparaco] was smart he better lay low and not get mixed up in it " This testimony by Persky was, not contradicted 2 and is credited by the undersigned. Toward the close of the work day on July 9, Plant Superintendent Eggermann brought Persky his pay and told him he was discharged. According to Egger- mann's own testimony lie gave as the reason for Persky's discharge that he "was very inactive, inattentive to his work and we had a bad spoilage record against him." Persky told Eggermann at the time that the reason assigned for his discharge was not the real reason but did not indicate what he believed the truth to be. 1 At quitting time on the same evening Eugene Decker, a milling machine oper- ator, approached Eggermann to renew a request previously made for an increase in pay. Decker had been hired in July, 1941, at an initial wage of 85 cents an hour. At his request -he was given a 5 cents an hour increase in pay sometime "before Christmas" and another of like amount on March 11, 1942. On both occa- sions he had stated to Eggermann that in case he could not be given a raise he would expect to be given a "release". The record indicates that by the term "release" was intended a statenient by the respondent that Decker was leaving its employment with the respondent's consent The purpose of such "release" was to facilitate reemployment in some other war production plant Some three weeks before "July 9, Decker had begun a campaign for another raise. After receiving his weekly pay on July 8; he inquired of Eggermann, "How about that raise?" On the evening of July 9 he again demanded that Eggermann either give him a raise or a "release". Decker testified that Eggermann closed the conversation by saying that he would have to think it over. When Persky was discharged on the evening of July 9, on Morrison' s suggestion, they went to the United's office where they met John Clarence Blair, an organizer, assigned by the United to assist the respondent's employees. That evening a meeting was held which discussed the case of Persky- and designated-a, shop committee composed of Decker, as chairman, together with Morrison, and Persky, to represent the Union in negotiations with the respondent Next morning, July 10, these committeemen and Blair met the employees as they were entering the plant and continued their solicitation of memberships. Nineteen applications were issued that day. Kaplan arrived at about five minutes of eight and for a time observed these activities When Blair learned of Kaplan's presence he, together with the members of the committee, approached him, Blair introducing himself as the representative of the United and stating that having secured the designations of a majority of Kaplan's employees he desired to discuss with him the discharge of Persky and to niake arrangements for a conference looking toward collective bargaining Kaplan asked, `Are you going to strike?" Blair answered that they weie not as it was,United's policy to avoid strike action in war industries Kaplan then asked Blur for "credentials" Blair stated that it was not customary for the United to, supply its representatives with such evident_e of their positions He told Kaplan that Decker, Morrison and Persky I 'At another point in the recoil Pei sky gave the version : "The boss was watching and I better lay low ". a"The record shows that both Downing and Sparaco were employed in the plant and available at the time of the heating but neither was called as a witness 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were a committee from his employees and that Decker served as chairman. Kaplan stated that "Persky was discharged and was no longer in our employ." ';Declining to talk with either Blair or the committee until credentials had been produced, he proceeded into the plant.' When Decker entered and prepared for work he was summoned to the office and told by Kaplan that he had been released and should leave the plant. That same evening Morrison was laid off by William Eggermann, superintendent of the plant, who stated that the "plant was very slow" and gave "lack of work" as a reason for the lay-off. 2. The employees', work records and respondent's contentions A. Henry Persky was a graduate of the Brooklyn Technical High, school and after "some previous experience" was hired by the respondent on June 24, 1941, as an apprentice in the tool and die department. After five weeks in this position ,his foreman, Robert Forrer, who found him "not qualified" for his position and felt that "he talked too much" 4 arranged that he should be transferred to the production department. Here he was engaged in general milling machine work for about seven months. In March 1942 lie was assigned to milling operations on star wheels.' This position Persky retained until his discharge on July 9. Persky's initial wage was 50 cents an hour. In November 1941, at his request, lie was given an individual raise of 10 cents an hour In March, on the occasion of his transfer to the star wheel operations, the respondent voluntarily gave him a five cent per hour raise. At Persky's request he was given a further 10 cent raise effective on June 29, 1942, and under the respondent's pay roll practices first paid on July 8. It will be noted that this is the day preceding Persky's discharge. When Persky,filled out his army questionnaire Eggermann incorporated in that document a statement that Persky was an essential worker whom it would require two years training to replace. On July 2, when Persky told Eggermann that he "was about fed up with waiting for the raise" and that he wanted to get a release in order to work in another plant, Eggermann told him that lie would get the raise next week and further said that he was "a needed worker" that his job was steady and that his work had been very good' As stated above, Persky was enlisted by Morrison in the Union organization campaign. The record shows that he was the most active of the employees engaged in this activity. The undersigned accepts Decker's undenied testimony 8 These findings are based on testimony given by Blair, Pei sky, Morrison and Decker Kaplan testified that his only conversation was with Blair and Peisky He denied that Decker or Morrison were included in the group or had been identified as United committee- men As Kaplan stated the conversation with Blair was limited to Blair's request to talk with Kaplan about reinstating Persky and Kaplan's own inquiry as to Blair's credentials. Kaplan denied that Blair said anything about unionizing the shop Each of the wit- nesses Blair, Persky, Decker and Morrison testified readily and in detailed fashion Their testimony was given with evident conviction Although each of these witnesses were twice subjected to cross-exainni nation' their testimony was in no case shaken Their testimony is mutually corroborative After consideration of the entue record and of the demeanor of the witnesses, the undersigned accepts the statements of Blair, Persky, Decker and Morrison and finds that the account given by Kaplan is largely incomplete. 4 Forier's attitude finds clear expression in his own testimony : "Of course an apprentice boy «ho'gets a chance to learn a trade should be as much as possible quiet and not give you suggestions and answers all the time." Foirer admitted that, while Persky "went on his nerves" by asking many questions , such inquiries were always with reference to the ww of k in process Since Forier described these operations as "a very high class precision job" and the assignment brought Persky.a 5 cent per hour increase in pay it is fair to describe this change as a promotion. 6 The above findings are based on Persky 's uncontradicted testimony. CENT'URY PROJECTOR CORPO'RATION 643 regarding Persky's union activity : "He was talking to ale a lot about joining a union" and further "during the lunch hours he always talked, always about the Union, joining up with the Union, because we can't get nothing here ; we can't get regular wages, we can't make a regular living out of the wages we got here."' Both Morrison and Persky testified that they had attempted to conceal their union activities until the last day or two of their employment by the respondent In attempting to justify Persky's discharge the respondent presented a memo- randum dated July 6, 1942, written by Forrer and signed by Fred Strauss, an employee in Forrer's department, which reads, "On #720 star wheels 10% were seconds on account of slot being milled off center." Forrer explained that there had been continual complaints of excessive spoilage in the production of start wheels. This spoilage had been ascribed to faulty performance by Strauss, who was assigned the last operation in production. On complaint of George Kaplan, son of General Manager Kaplan, Forrer had investigated the matter. Forrer's responsibilities for the production of star wheels were substantial. His duties included setting up the milling machine for Persky and he had made the fixtures which Persky used to hold the star wheels during his milling operations. Persky's work, however, was carried out under the supervision of Foreman Neri Gunn.' Forrer took this memorandum to Eggermann, and on July 6 they consulted with Kaplan about the matter. Kaplan's statement regarding action then taken reads as follows: "Now, we immediately asked him, what he thought might have caused it, and he thought it was the cutters. We immediately informed the fore- man or set up man [this. is Gunn] that that was occurring probably, in his- de- partment, and would he investigate, and that was on all there was to it on the 6th. [sic] Kaplan was absent on the 7th but on the Sthh as he testified, while sitting in his office, he "happened to be looking out towards the shop" and "saw Mr. Persky not at his machine, and I looked and I saw him talking at the bench, lathes, and they were talking at the bench lathes, and he ran back to his machine, and then he ran away again from his machine, and he bent down to talk to a lathe hand right opposite to him, and he kneeled down to talk to, this man, and it was going on off and on for the entire day. I brought it to the attention of 'Mr. Eggermann and I explained to Mr. Eggermann what was going on and he said he would look into it too, while he was on the floor". On the forenoon of the 9th, Kaplan continued his observation of Persky's activities and that afternoon saw Eggermann and "told him to let Mr. Persky off, and he did." Eggermann_'s testi- mony regarding these incidents was to the effect that Forrer on reporting to him with the Strauss memorandum had explained: "'This is where the spoilage comes from, the milling department' because his department couldn't finish the slots up ; there wasn't enough to grind out." On "the next day" as Eggermann testified, Kaplan and he decided "to watch Persky a little bit and see whether he was attending to his duties " On doing so they found that Persky "was very inactive; he walked away from his machine while it was operating and interfered with men at the bench lathes, holding them'back from their work." "He done that for a few days and finally we decided if a fellow can't pay,attention to his machine he certainly can't turn out a good job, and we decided to let him go." 7 Peisky's own description of this organizational activity reads as follows • "Mr Mor- rison interested me in the union's activities about two weeks before I was discharged, and Mr. Morrison, myself and Ali Decker gave out cards In the shop, and had the fellows sign them up We were working very slow at first, and going around in the shop, and about the day I was discharged, we were just about opening the entire thing and getting navies light and left from all the fellows in the shop, and that was on Wednesday and on a Thuisday night I was discharged 8 Gunn was known in the plant as John and is frequently referred to in the transcript by that name In several Instances Gunn's name is erroneously entered as "Dunn". 631047-43-vol. 49--42 1 t 644, 'DECISION'S OF NATIONAL LABOR RELATIONS BOARD Lengthy testimony was, received relative to the production of star wheels and Persky's responsibility for the spoilage incurred on four jobs handled in the plant during his assignment to operations thereon. The production of star wheels 'is a precision operation. The part is small, the wheel being an inch in diameter with a shaft measuring a quarter inch. Tolerances on the finished part are prac- tically zero and operators are expected to work within tolerances of two to three thousandths of an inch during the progress of the part through the plant. A finished part to be acceptable must be accurate within one tenth of a thousandth. The process of nianufacfuring star wheels as carried out in the respondent's plant during the period mentioned here is divided. into 29 operations. Of these, Persky did five, numbers 8, 10, 12, 13 and 14. Operation number 8 was both most important and most significant for this proceeding. The operation covers the cutting of four slots radiating out from the shaft of the star wheel at 90 degree -angles. The finished slots are 100 thousandths of an inch in width. As the star wheels left Persky's milling, machine, however, the slots were to be ninety-five thousandths of an inch wide and to have two and one-half thousandths on each side left as stock for removal by the final grinding operation. That operation, number 24, was the one for.which Strauss was responsible. During the process of manufacture the material in the star wheels is soft. Operation number 20 was a heat treating process concerned with the hardening and tempering of the steel. Expert testimony presented at the hearing by one Daniel Kenny, a machinist with over 18 years experience in star wheel manufacture, indicated that, in the process of hardening and tempering, the steel of which the star wheels were composed was subject to distortion in unpredictable fashion. Moreover, Kenny's testimony was to the effect that under war conditions the steel purchased by the companies manufacturing star wheels varied greatly in uniformity.' During Persky's tenure of his posifion as a star wheel milling machine operator it was the practice in the respondent's plant.to make inspection of the star wheels only at the end of the process after these parts went through Strauss' operation- number 24. There was no inspecton during the other operations except that made of the results of their work, by the employees themselves. Expert witness Kenny testified with positiveness and conviction that under this inspection policy it would be quite impossible to determine responsibility for defects discovered so late in the process of manufacture. - Forrer testified that when he examined 230 star wheels on July 6 he -found 23 defective because the slots were milled off center. In the 4th operation the shaft is turned on it lathe and it is ground to a diameter of 258 thousands in the 7th. Since the finished shaft is but 250 thousandths in diameter this operation leaves around the shaft 4 thousandths stock to be removed in the final finish grinding. This is operation number 23. Persky in cutting the slots during his 8th operation worked from the oversized shaft which was, held in a collet to establish con- centricity. Hence any failure to finish grind the shaft in operation 23 with precise concentricity, taking 4 thousands on each tangent of the circumference, would disturb the concentricity of the slotsk On the axis 4 thousandths stock was left. On each side of the slots but 2Y2 thousandths. In finish grinding the shaft the operators worked from-centers established in the first operation but subsequently disturbed by operation number 19, when, as Forrer testified, "we make a new center . . . and grind a very small taper, 60 degree taper about five thousandths wide, and it is a new good center again." Manifesting failure to establish this "new center" in exact agreement with the 9 Respondent's plant had no equipment for applying metallurgical tests to the steel purchased. CENTURY PROJECTOR CORPORATION 645 original' centering would result in grinding the stock left on the shaft unevenly and, since this operation follows Persky's slot milling operation, would, disturb the concentricity of his work. Since practically all inspection was postponed to `the-final operation it ,was impbssible`to ascribe responsibility • for spoilage with certainty to any operation or workman. The respondent presented data drawn from its production records covering four jobs in the manufacture iof which Persky had part. In the first of these, job number 201, Persky was occupied for but five and one-half hours on the milling machine operations. His predecessor, one Herzog, put in 275i/2 hours on this job. On the second job,-number 536, Herzog put in 13 hours and Persky,201. On the other two jobs Persky (lid all of the milling machine operations. The following table incorporates the results attained on these four jobs : Number Number Spoilage on slots _ Other Job No. Type started accepted numbe Number Percent 201 S 951BB___________________________________ 384 342 33 8 9 536 S 730BB___________________________________ 343 251 87 26 5 629 S 951BB__________________________________ 563 488 70 13 5 952 S 730BB--------------------------------- _ 309 258 47 15 I 4 It should be noted that the first and third of these jobs are concerned with the star wheel designated as S 951BB, while the second and fourth have to do with star wheel. S 730BB: According to the company records job number 201, for which Herzog was ;mainly responsible so far 'as .the slots, were concerned, had eight percent spoilage on slots while job number 629 in which Persky did the machine milling operations had 13 percent. On the S 730 star wheels, jobs num- ber 536 and 952, in which responsibility for the milling machine operations rests with Persky spoilage on slots was 26 and 15 percent respectively. The testimony of Foreman Forrer and Superintendent Eggermann agrees that until the investigation from which the memorandum of July 6 resulted had been made, both Eggermann and Kaplan',had 'charged the responsibility for the exces- sive spoilage on slots to Strauss. Strauss was described by Forrer as "just a young fellow like he [Persky] is." The "undersigned notes that although the spoilage on slots in lot 536, being of type S 730, was 26 percent, this excessive spoilage did not induce either Kaplan or Eggermann, who at the time held Strauss to be responsible, to place him under surveillance such as Persky was subjected to on July 8 and 9. -Eggermann testified that Foreman Gunn, under whose supervision Persky worked, had, complained to, Eggermann a month before Persky's dicharge that Persky was" "inattentive -to' his work." - Persky testified on the' contrary that he had never received any complaints prior to the date of his discharge. The undersigned finds Eggermann's testimony in this matter unacceptable in view of the fact that Persky received a substantial increase, from 65 to 75 cents per hour, on June 29, only a week preceding his final discharge. Moreover, the company job record cards, which were brought to the hearing room for examination, show that the 309 star wheels in job number 952, the last handled by Persky, went by his machine between the dates of June 3 and 29 and that only four defective star wheels were ascribed to Persky at that time.10 Evidence 10 George -Bennett, the expediter who, kept these records testified that 43 additional defective star wheels were later added to -Persky's record by George,Kaplan. 646 DECISIONS OF 'NATIONAL LABOR RELATIONS BOARD in the record necessitates the conclusion that Persky's record of performance was clear until the end of June. This is to say until the time that he entered upon union activities. - Forrer's testimony indicated that on or about July 6, at the suggestion of George Kaplan, he examined 230- star -wheels, presumably from job number 952 which he found on racks near Strauss'-grinding wheel. Forrer found twenty-three of these star wheels to be defective because the slots had been cut off center. The undersigned notes- that this 10 percent rejected was but slightly more than the 8 percent found similarly imperfect on job number 201 for which Herzog was responsible. The respondent's evidence indicates that this was an entirely acceptable result. Finally the undersigned finds unconvincing the attempt of the respondent to fasten responsibility upon Persky for the excessive spoilage of star wheels in view of the measures taken by the respondent to correct its process of'manufac- ture. Forrer testified that- immediately after Persky's discharge he had the milling machines moved to his 'department and that thereafter these operations were performed' under his ['Forrer's] immediate supervision. The suggestion_ is plain that what was needed was a change in supervision rather than a,.-change in workmen. Forrer was qualified as an expert on star 'wheel manufacture both by 30 years experience on tool and die work, and by his familiarity with the equipment used in the respondent's plant, a good part of which he had himself made. The testimony of Persky, Kenny, and Forrer agrees in stating that when the cutter used in milling slots becomes dull the effect is to widen the width of the cut made. Moreover, under such conditions the slots tend to open up unduly at the point of the entry of the cutter. Persky testified 'without contradiction and the undersigned finds, that under Gunn's supervision he was frequently directed to use the cutters beyond the time when in his judgment they should have been changed. The record suggests that Gunn was inclined to use the cutter over long because the setting up of the machine is a rather lengthy opera- tion. It will be noted that Gunn was not the set-up man, this task being assigned to Forrer. Persky, under Gunn's supervision, was using a cutter 881/2 thou- sandths wide. He testified, without contradiction, and his statement is accepted by the undersigned, that he had discussed with Gunn the desirability of using a somewhat narrower cutter Gunn agreed that this was a good suggestion, ,but the change was not made. Forrer testified that after the operation had been removed to his department the width of the cutter was reduced to 80 or 85 thousandths. It is clear that the responsibility for delay in making this change rests with the supervisors and not with employee Persky. Although Eggermann testified that the responsibility for hiring and discharg- ing employees was lodged" with him, Kaplan assumed full responsibility for the discharge of Persky. Eggermann, on Kaplan's orders, notified Persky of his discharge. When asked what was the governing reason for Persky's discharge, Kaplan replied : "Persky was discharged, on Wednesday he kept away from his machine, he ran over to the lathe hands and never attended to his machine cor- rectly, and neglected the work that was in the machine, and did the same thing on Thursday. That was why I laid him off." In oral argument the respondent's counsel stated that the materiality of the spoilage record "only comes in in con- firming the bona 'ides of the complaint of Forrer." ' The undersigned notes that the period of observation of Persky at his work was very brief covering no more than 11/2 days and that the extreme penalty of discharge was imposed at once without preliminary admonition or warning. The record contains -unrefuted u Eggermann's testimony was • "Not one man ever left that-employ unless I say so." l CENTURY PROJECTOR CORPO'R'ATION 647 evidence to show that at. a later date other employees openly canvassed the plant for the Machinists and that their absence from their' machines or other work place incurred no disciplinary action whatever. SUMMARY AND CONCLUSION Evidence in the record shows that Persky's work record was good and was so regarded by the respondent until the end of June 1942. He had been regarded as an essential worker, had been told that his work would be steady and had been given three wage increases within a year. The last became effective June 29, 1942. About this time Persky became outstandingly active in the United's organization campaign. His lunch time solicitations and union arguments may reasonably be inferred to have come to the knowledge of -the respondent. This is a small plant with a well acquainted force, many of whom had long service and were on familiar terms with the supervisors. Although Kaplan and Egger- mann denied all knowledge prior to July 10 of union activities in the plant it is noteworthy that their surveillance of Persky's actions in the shop covered July 8 and 9. These we're the days when the United. activities first came out in the open and became productive of_ results. Nine applications for membership were received on the 8th and 18 on the 9th. On the 9th Persky was warned in the shop that his union activities had attracted the attention of Kaplan. The testi- mony of Kaplan and Eggermann corroborates this evidence ,to the extent that they stated that at this time they were observing Persky's-actions closely. More- over, Kaplan's first reaction to Blair's approach : "Are you going to strike?" indicates knowledge of union activity in the shop. After consideration of these facts in connection with the events of July 10 and the discharge of Decker and Morrison, next considered, the undersigned finds that Henry Persky was dis- criminatorily discharged on July 9, 1942, because of his union membership and activity and that his discharge was intended to discourage membership in the United and had that effect. b Eugene Decker was hired by the respondent in July 1941 as, a milling machine operator-in the production department. He had' been engaged in similar occupations for a period, of over 25 years. His record in the respond- ent's plant was entirely clear. Eggermann testified, "I have no complaint on Decker. He was a good milling machine man ; he would be there today hadn't he left our employ. 'I have no complaint against Decker,' none whatsoever." Decker's initial wage was 85 cents an hour. At his request he was given a 5-cent an hour raise "before Christmas" and a further 5-cent raise on March 11, 1942 Decker's period of union activity was brief. He did not join the United until the evening of July 9. At this time, as noted above, he became chairman of the union committee of which Morrison and Persky were members. On the morning of July 10 he shared in the solicitation of membership applications and this activity carne tinder the observation of Kaplan. Later lie was intro- duced to Kaplan by Blair as the chairman .of the union committee. On both occasions when Decker successfully asked for a raise he had stated to Eggermann that in case he could not be given a raise he would expect to be given a release.12 Some 3 weeks before his discharge on July 10, Decker began a campaign for another raise. After receiving his weekly pay on July 8, Decker inquired : "How about that raise?" and on July 9 at about 6 o'clock, which was quitting time,''he again demanded, that Eggermann either give him a raise '- As noted above, Persky successfully used similar tactics on July 2, 1942. ,648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD' or a release. Decker testified that Eggermann closed this conversation by scat-, ing,that he would have to think it over.18 Eggermann's version of this conversation varies, in essential details., He testified that he discussed the matter with Kaplan' about 3 or 4 o'clock that afternoon and that they had agreed that,, it would, be,impossible to give Decker a raise and they would be compelled to give him a release. As Eggermann states the conversation of July 9, Decker at this time said : "All right I will take the release." Eggermahn further testified that it was plain that Decker was leaving since "he moved his tools and his apron, his clothes, away from his machine." Eggermann stated that he made a memorandum for his pay roll clerk to the effect that Decker was leaving the respondent's employ. Kaplan testified that the conversation at 6 p. in. on July 9took place under' his observation although he did not hear what Eggermann said to Decker. However, he testified that he saw Decker after talking to Eggermann at quit- ting time run "to his machine and was sore, and grabbed his old clothes and brought them back to where his tool box'was, and checked out." Kaplan denied that Decker was introduced to him as chairman of the union committee on the morning of July 10. However, he stated that Decker was near by during his conversation with Blair. Decker rode up,to• the 'plant,-which was 'on the fifth' floor, in the-same elevator as Kaplan. Decker, Kaplan, and Eggermann agree in stating, and the undersigned finds, that Decker found his card in the rack, punched in and began preparation for his day's' work. There is conflict of testimony between Eggerman and Kaplan regarding what took place on Kaplan's entrance into the plant on the morning of July 10.' Eggerman testified that Kaplan then said, "Fine state of affairs . . . looks like the boys want a union." Eggerman's reply was to the effect that "I had no good unions to give away, there was no good unions to give away." Kaplan denied that any reference was made to unions that morning. The undersigned' after considering the demeanor of the witnesses, the attendant circumstances,' and the record in general has rejected Kaplan's denial and accepts Eggermann's statements are substantially correct. While Decker was,preparing for work George Kaplan, son of General Man` ager Kaplan and an inspector in the plant,- came to'Decker at his machine and requested him' to come to the office since Kaplan's father wished to see him. Decker stated that Kaplan then said to him, "You asked for a release. I release you [or released you]. Get out of here." Kaplan's version of his statement is closely similar. "Last night you asked for a raise or a release. You'got your release. Why did you run over there to work?" Kaplan stated that Decker then said, "Yesterday I quit and today I want to work." As stated above, the undersigned accepts the testimony of Blair, Persky, Decker, and Morrison who stated that Kaplan was told, during the conver- sation before the plant that Decker was chairman of United's committee. Fur- ther, the-undersigned rejected Kaplan's denial and accepts Eggermann's testis mony to the effect that Kaplan said on entering the plant that it looks like the boys want a union. Eggermann's reply plainly indicated his own anti= union attitude. It is clear that Decker's tactics on seeking a third raise was a repetition of bargaining technique twice before successfully used. Decker "Decker was asked whether he thought -this •congersationdiffered ,in significance from the other requests made for a raise. He replied : "I don't think that was, because if be had told me "definitely, 'You don't get it; that is all there is to it; here is your release; I give you a release, go ahead;' I would have take my clothes and go home right away, because I get a job any time, I had the money what he paid me, I could get a job any place." CENTURY PROJECTOR CORPORATION 649 was a forthright witness, giving clear indication of accurate memory and his specific detailed testimony was not shaken in any detail by repeated cross- examinations The conflict in Kaplan's and Eggermann's testimony and the incomplete character of Kaplan's account of the conference before the plant on July 10, has a damaging effect on Kaplan's credibility. Eggermann as a wit- ness lacked specificity and frequently manifested inaccuracy of memory. The failure to remove Decker's card from the clock rack and the fact that Kaplan, made no reference to the termination of Decker's employment on the morning of July 10 when he stated to Blair that Persky was no longer employed in the plant supports Decker's version of events at quitting time on July 9. The undersigned, under these circumstances, accepts Decker's testimony and rejects that of Kaplan and Eggermann. It is clear that Decker did not quit his em- ployment but reported for work on July 10 and would have worked that day but for the intervention of Kaplan. The undersigned finds that the respondent on July 10 after Kaplan observed Decker's solicitation of union memberships and learned that he was chairman of the shop committee, seized upon the pretext furnished by Decker's bargain- ing technique in asking for a release as an alternative to a raise and discharged Decker. The undersigned finds that the discharge was-motivated by, Decker's union activity, membership, and his service as chairman of the shop committee, The discharge was discriminatory and intended to discourage and did discourage membership in the United. - c Neil Morrison was hired by the respondent on June 26, 1942, as a bench hand in the assembly department at a 'wage of 70 cents an hour. As noted above, he initiated the union activity in the plant, was responsible for the securing of application blanks- and enlisted Persky in United's campaign. He became a member of the union committee and on July 10 was introduced to Kaplan in that capacity. At that time also his activity in soliciting- union memberships came under Kaplan's observation. On July 10, about a quarter before six in the evening Eggermann came to him and told him that the plant "was very slow" and laid him off. 'At this time,. as Morrison testified, there had been.no diminution in the amount-of work available. He was at that time wiring frames and left 12 or 15 such jobs un- finished. Moreover, .4 or 5 days before his discharge , according to Morrison's undenied testimony, accepted by the undersigned, Eggermann came to him stating that he could use a few more men and asked whether Morrison could get them from the firm whose employ he had just left. - Eggermann and Kaplan explained that they had expected to get a certain government contract about this time but that delays had been encountered and the contract was not in fact secured until September 16. Hence, they decided that it would be necessary to start laying off employees. It further appears that no one was hired to take Morrison's place when he left the plant. There is nothing in the record to show that any other workers were laid off on the same date as Decker and Morrison. The record shows, however, that an apprentice, Jack Sherman, was hired on July 9, the day preceding Morrison's discharge. Another apprentice, Henry Zwisohn,'had been in the respondent's employ only since 'June 15. These two together with a third apprentice, Stephen Kaspezak, were retained until August 14, more than a month, after Morrison's lay off, before being released for the stated reason : "Lack of work." It thus appears that on July 9 and 10 all three of the men who had been .most active in the union, campaign for membership were either laid off or discharged. In the case of neither Decker nor Morrison was there,any alle- gation of inefficiency or inattention to their duties. The anti-union attitude 650 DECISION'S OF NATIONAL LABOR RELATIONS BOARD of Eggermann was evidenced by his testimony that he had told Kaplan that there were no/good unions. In the case of Kaplan it is a reasonable inference that his long standing membership and service as a union official in an affiliate of the A. F. of L. would prejudice him against' accepting a C. I. 0. organization in his plant. The undersigned finds that the discharge of Henry Persky on July 9; of Eugene Decker on July 10 and the lay-off of Neil Morrison on that date, which, since he was never recalled, was in effect a discharge, were intended to•have and did have the effect of discouraging membership in the United. By thus discharging •Persky, Decker, and Morrison the respondent discriminated in regard to their hire and tenure of employment and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section .7 of the Act. , B, The refusal to bargain; other interference, restraint and coercion 1. The appropriate unit The complaint alleges that all production and maintenance employees of the respondent employed at its Brooklyn plant, exclusive of clerical employees, engineers, technicians, and supervisory employees, constitute a unit appropriate for collective bargaining within the meaning of Section 9 (b) of the Act. All parties agree, and the undersigned finds, that Superintendent, Eggermann and Clerks Leo McSherry and William Smith should be excluded from the appro- priate unit. The parties are further in agreement, and the undersigned finds, that Ewald Boecking, a designer, should be,excluded. The evidence shows that Boecking has technical training as an engineer. His duty is to design all projector parts and he has charge of the respondent's patents. Boecking occupies a separate office and is paid on a different basis from the other employees." The parties are in disagreement as to the inclusion in or the exclusion from the appropriate unit of four quasi-supervisory foremen or set-up men, two expediters, two draftsmen, an inspector, a packer and truck driver, and the shipping 'clerk. The United desires that these employees should be excluded, while the respondent and the Machinists desire their inclusion. The United contends that Robert Forrer, Arthur Downing, Fred Hamm and Nori Gunn are foremen and by virtue of that position should be excluded as supervisory employees Forrer, Downing and Gunn are designated on the respondent's pay roll as set-up men; Hamm is called an assembler. Witnesses called by the respondent contended that these men are not properly termed supervisory em- ployees but rather are engaged in production work on practically the same basis as the other employees. However, Forrer, who was the only one of the four who was called-as a witness, when asked : "What is your employment?" readily answered, "I am foreman of the tool and die department." Employees called as witnesses by the Board, when asked "Who is your foreman?", named each of the four several times. Moreover, both Eggermann and Kaplan, testifying for the respondent, .made frequent references to their foremen or key men in the various departments It appears that these men give out work and supervise its execution by the employees in their respective departments. Their recom- inendations are given consideration in the case of hiring, transferring or dis- charging employees. Thus Forrer, testifying as to the circumstances of Persky's transfer from the tool and die department to Gunn's production department, said "Well if I had gone to the office and said,,'I can't use him,' naturally they 14 In negotiations with the Machinists detailed below Boecking was excluded from the unit adopted. CE'\TURY PROJECTOR CORPO'RA'r'I01'^ 651 would have said, `We lay him off"' Eggermann testified that these four- men were the highest paid employees in their, respective departments. He further said, "Naturally, I get all my information from my key men.", and again; "any wrongdoing in any department you refer it right to the set up man or key men that we have." While these employees work on production during the time not occupied with their supervisory duties they are clearly shown to be supervisory over some four to ten men each The undersigned finds that Forrer, Downing, Hamm and Gunn should be excluded from the appropriate unit. The draftsmen, Frank Zoechling and Hans Mayer work in a separate office under the immediate supervision of Designer Boecking. They have no other duties than their work as draftsmen and since they are withdrawn from the other employees and are engaged in technical operations the undersigned finds that they should be,excluded from the appropriate unit. The expediters, Hyman Schwartz and George Bennett, are charged with the duty of seeing that various jobs are promptly put in production and move steadily through the production processes They keep records of the time put in by each employee on the jobs and of the spoilage record of each employee as the work proceeds. They have no responsibility for inspection of the work performed, or for the efficiency of the employees. However, since their work is largely clerical, is directly connected with management, and their interest is thus more closely bound up with that of the employer than of the employees„ the undersigned finds that they should be excluded from the unit. George Kaplan is the son of General Manager Sam Kaplan and is classified on the pay roll as an inspector. He is charged with responsibility for the final inspection of the projectors before they are packed for shipment and has charge of all government work in the tool and die department. In the execution of his duties he is more frequently iii the office than in the plant. On occasion he transmits the orders of his father to the employees and as the evidence shows is-regarded by the employees as a "boss" whose instructions are to be carried out The undersigned finds that George Kaplan n should he excluded, from the appropriate unit. ' William Erdman is classified on the pay roll as a "packer-driver." He is occupied on alternate days in packing goods and in driving the single .truck operated-by the respondent. His hours, pay and working conditions are similar to that of the production employees and his interest. in the benefits of collective bargaining is analogous to that of the other workers in the plant. Consequently, the undersigned finds that he is properly included in the appropriate unit. Ruben Cohen is called a "gear cutter" on the pay roll but his duties as,of July 13 were those of a shipping clerk. Both Cohen and Erdman worked directly under Eggerman's supervision Cohen's duties as shipping clerk are not clerical. He has very slight responsibility for the keeping of shipping records. As described in the evidence, his duties are very largely those of a packer The undersigned finds that he is-included in the appropriate unit. The undersigned finds that at all times material herein the production and maintenance employees of the respondent employed 'at its Brooklyn plant, exclu- sive of the superintendent, two clerks, the designer, two draftsmen, four fore- men or set-up men, two expediters, and one inspector, but including the packer- driver and the gear cutter or shipping clerk as named above, constituted and that they now constitute a unit appropriate .for the purposes of collective bar- gaining with respect to rates of pay, wages, hours of employment, or other 15 George Kaplan was not included id the unit adopted by the respondent and the Machinists. 652 DECISIONS OF NATIONAL LABOR RELATIONS' BOARD conditions of employment and that said unit insures to employees of the respondent the full benefit of their right to self-organization and collective bargaining and otherwise effectuates the policies of the Act. 2. Representation by the Union of a majority in an appropriate unit A pay roll as of July 10, 1942, furnished by-the respondent carries the names of 99 employees. This list, however, does not include Henry Persky and Eugene Decker who, as found above, had been discriminatorily discharged on July 9 and July 10 respectively and therefore under the Act retained their status as employees. From the total number of employees should be deducted in accord- ance with the findings next above, the superintendent, two clerks, the designer, two draftsmen, four working foremen, two expediters, and one inspector, a total of 13 Thus the appropriate unit includes S8 employees To establish majority representation the United must show designations in excess of 44. At the hearing the United submitted a total of 55 application for membership cards. The names of all the employees named thereon (with the exception of Persky and Decker) were found on the pay roll submitted by the respondent le Eleven of these employees appeared as witnesses and identified their signatures and, with exceptions noted below, stated that they had signed the cards^on or before July 13, 1942. As to the, other individuals, satisfactory proof was given that they had signed the cards presented on the dates indicated thereon and that they were at the time of signing employees of the respondent. Sydney Schaller, a bench' lathe employee of 6 months tenure presents a pos- sible exception: He testified that on July 2, 1942, he sent a letter to the United asking for a withdrawal card. Schaller had been a member of the United since May of 1942 and was not one of the employees whose membership was secured during the organization campaign in the respondent's plant. The re- quested ^ withdrawal did -not become effective until some -time in August and, under the rules of the United, Schaller was required to pay and did pay, dues to -the date of withdrawal. In the' case of John Anderson; a profiler, employed by the respondent for 4 years, and' Reginald Walker, an assembler, some doubt arises because of their testimony as to the -date upon which their cards had been signed. Anderson testified that he signed on.the 15th of July, "if not later." The date July 3, 1942, -was placed- on his card by someone other than the signer. However, since Anderson further testified that his best recollection was that he also signed a) Machinists application card on July 15, 1942, the undersigned places little credence in this witness' memory of -the date on which he signed the United application card. ' In answer to the 'question, "When did you sign this card?", Walker testified, "As nearly as I- can- recollect, •I would say it was on the 14th of July." Walker declared that, the date'was placed on the, card by someone other than himself. However, the undersigned' finds no discrepancies either in the handwriting or in the appearance of the penciled writing between the date, July 10, 1942, and the other entries on this card. The respondent did not assail the authenticity of the signatures nor did-it contend that the signers were not employees of the respondent on the dates carried by the cards . The undersigned does not find ,it necessary to discuss these discrepancies at length since even if all cards is Charles Hoffman is carried on the pay roll as Samuel' Hoffman. His occupational classification on the pay roll is that given on his application card. At, the hearing it was shown that the pay roll was in error, as to his given name. CE'NT'URY PROJECTOR CORPOR'ATI'ON 653 brought in question should be rejected, the United would still have a substan- tial majority. - The undersigned finds that the United was on July 13, 1942, and it is the duly designated representative of a majority of the respondent's employees in • the appropriate unit and that pursuant to Section 9 (a) of the Act it was and is the exclusive representative of all the employees in such unit for the purpose of, collective bargaining with respect to rates of pay, wages, hours of employ- ' went, and other conditions of employment. 3. The refusal to bargain As noted above,17 United Organizer Blair, accompanied by Shop Committeemen Decker, Persky and Morrison, requested recognition of General Manager Kaplan as the exclusive bargaining representative of his employees on the morning of July 10, 1942. Kaplan arbitrarily refused to discuss this request. On the fol- lowing day the United sent a letter to Kaplan by special messenger repeating -the request. Since the letter was sent collect and carried a charge of 80 cents, Kaplan was perhaps justified in refusing to receive it. 'A letter dated, July 10, 1942, stating that a majority of the respondent's employees had joined the United ,and requesting a conference for the purpose of collective bargaining, was sent to 'Kaplan by registered mail. The post office notations show that this letter was refused by Kaplan on July 13, 1942. It is,clear that Kaplan was aware that these letters were from United since he admitted refusing these letters and stated that he thought they were concerned only with the United's contention that Persky should be reinstated. The envelope of the registered letter, which is in evidence, carries a , return address showing that the letter had been sent by 'Local No. 475 of the United. Kaplan admitted that he had noted this fact on the occasion when he refused the letter. On July 23 the Regional Office of the Board arranged a conference between Kaplan, Eggermann and their attorney Hicks, as representative of the respond- ent, attorneys Scheiner and Roth for the United and Organizer Sullivan for the Machinists. This conference was concerned with the United's contention that certain employees discharged, including Persky, Decker and Morrison, should ,be reinstated and with endeavors to initiate collective bargaining between the -United and the respondent. At the close of the conference Scheiner made two proposals ; that the discharges should be submitted to arbitration, and that the question of the United's majority should be resolved by the Board checking the union cards against the respondent's pay roll. It is agreed that the United refused to submit the cards to Kaplan himself. While Kaplan did not admit that this card check proposal was made to him on that occasion, he did testify ,that Scheiner proposed to submit his cards to the Board's Field Examiner. The evidence indicates that Kaplan's understanding of the Board's procedure In card checks was limited. Kaplan's testimony as to his attitude reads : "I think I insisted that they go through with the charges, but that I had no knowl- edge at that time of any union." -Further the testimony indicates that this con- ference was somewhat heated and that -both. Eggermann and, Kaplan were "excited." As a result of proposals made on the 23rd, Scheiner accompanied by a United _official named Creegan went to Kaplan's New York City office by appointment on the 27th of July. Kaplan was the only participant in this conference who - appeared' as a, witness. -u His testimony,, which is accepted, by the. under- signed, was to the effect, that he refused to talk in Scheiner's presence in the 17 See page 4, supra. 654 DECISIONS OF NATIONAL `LABOR RELATIONS' BOARD absence of his own attorney . On Schemer's proposal Creegan then talked to Kaplan without Schemer being present, The only matter discussed was the question of the reinstatement of the three discharged employees and no con- structive result was obtained. On July 31, a further -conference was held at the Board's Regional Office, attended by Kaplan, Eggermann and Hicks and by representatives of-the United. Very little testimony was offered as to the occurrences at this conference. It appears, however, that the discussion then held covered the same matters as the conference on July 23 and that the meeting was similarly unproductive of con- structive results. On August 7 the Board's Regional Director notified the re- spondent,that the United had withdrawn its petition previously entered into with the Board "For the reason that there is no question of representation in that the union represents a clear majority of your production employees and you have refused to bargain with the Union in violation of Section 8 (5) of the Act." This letter also came to the attention of the Machinists. Inasmuch as the respondent entered into a contract with the Machinists on September 30, 1942, during the period when the United claimed rights of exclu- sive representation in the respondent's plant and since this contract has been brought in question by the Board's complaint , it is necessary at this point to con- sider the Machinists' campaign of organization and the respondent 's relation thereto. The Machinists ' representative, Sullivan, admitting during the hearing that on July 13 his organization had but one member in the plant, Louis Diamond. Diamond had been a member of the Machinists for some years but was among those who signed a United application card . The evidence shows that, with Diamond's assent, his Machinists book was taken to United 's headquarters where on this evidence he was excused from the payment of -an initiation fee. Diamond's application to the United is dated July 9, 1942 . Sullivan attended the conference at the Board on July 23. He testified that at that time he had 20 or 22'applications for membership which he submitted as proof that he had a substantial interest in the proceeding . He took little part in this conference since he was not interested in the question of reinstatement of the discharged employees, and had not at that time any claim to recognition as a bargaining agent. , However, he noted a statement made to the ,-effect that Kaplan had A. F. of L. affiliations . Sullivan presented his business card to Kaplan assuring him that, "If I represented a majority of his people , I would be out doing collec- tive bargaining." ` ' II 1 On August 6 Sullivan submitted to Daniel House, a Board Field Examiner, 43 application cards for membership in the Machinists . Only 17 of these cards cards were dated. The dates ran from, July 18 to 30. House gave Sullivan a statement covering these facts and added , "According to Mr. Sullivan all signers -are currently employees of Century Projector Corp. at its Brooklyn plant." On August 23 Sullivan sent a letter to Kaplan by registered mail, claiming that a majority of the men employed had become members of the Machinists and asked that a date be set for a conference. Kaplan accepted this letter but did not answer it. Early In September Sullivan , accompanied by a committee of the employees saw Kaplan at his office in the plant. At this time Sullivan presented credentials acceptable to Kaplan showing that he was a representative of the Machinists . When Kaplan suggested that he had no proof that Sullivan rep- resented ' a ,majority of, the .employees - Sullivan told Kaplan that he "would send a committee into his plant and give him all the proof he wanted , by calling a little demonstration' downstairs in the street. ' If that was the kind of proof 'he wanted, I did not recommend it; but if he wanted proof, I was going .togive it to him." ` CENTURY PROJECTOR CORPORATION 655 On September 22, Sullivan wrote what lie described in his testimony as a "pretty strong letter," and' mailed it to Kaplan. This threatened strike action unless a date to negotiate a working agreement was set before the 26th. As a result of this letter Sullivan and his"committee met with"Kaplan; 'Eggermann and Mrs. Kaplan18' in several conferences. Sullivan collected the membership. books and submitted them to the respondent's representatives. They were 70 in number and all were found authentic. Mrs. Kaplan, in her capacity of office manager, checked them against signatures kept on file. After discussion of the Union's demands and rejection by the Machinists of a counterproposal made by Kaplan, agreement was reached. A contract was signed on September 30, 1942, which includeda closed-shop provision reading: "The employees covered by the agreement shall be as a.condition of employment members in good standing of_ Lodge #434 of District #15 [of the Machnii'sts]." Uncontradicted testimony accepted as true by the undersigned, was given by Seymour Zwisohn, formerly an apprentice employee, but at the time of the testi- mony a soldier in the United States Army, to the effect that the Machinists' representatives, Fred Anderson, a repair man, and Charles Schwartz, an assem- bler, canvassed the employees for the Machinists at their work places during working hours within Kaplan's hearing and observation. Zwisohn himself had been several times solicited while at work by these Machinists' representatives. The respondent did not deny this testimony but in the oral argument claims credit for itself for this evidence of lack of interference with union activities. George Beller, an employee in the production department, testified and the undersigned finds, that Foreman Gunn asked, during working hours whether Beller,was going„to,join the A.',F., of -L. .saying further, ',Most-of the fellows are joining up." s Summary and Concluding Findings - The evidence established that when the respondent learned of the United's organizational activity in its plant it discharged Persky, Decker and Morrison, the members of the United's shop committee and the only three employees prominent in the union movement. This action. of the respondent effectively scotched the United's 'campaign. Thirty-seven applications were secured on July '9 and 10, while only 3 of a total of 55 applications for membership in evidence were received after July 10, the date on which Decker and Morrison were discharged. On July 13 the United's letter asking for recognition and a conference for collective bargaining was refused and on July 23, 27 and 31 conferences between the respondent and the United, arranged through the Board's Regional Office, were unproductive of results. Throughout this period the respondent main- tained an uncooperative attitude toward the efforts of United to establish a basis for collective.,bargaining. ,However, when the Machinists entered the plant IS Mrs. Kaplan was secretary of the respondent. 19 Foreman Forrer testified that he had belonged to the C. I. 0. before he was employed at the respondent's plant. He said further : "I never was in favor of the C. I. 0. That is one thing I state right here now." When questioned about his participation in the Machinists ' campaign Forrer became a reluctant and at times evasive witness. He ad- mitted joining the Machinists "around September or something like that " While he pro- tested that he was not an 'agitator : "didn't never coax anybody," and that he "didn't talk unionism all day long," it appears from his testimony that he talked of .the Union movement during working hours with the men in his tool and die department. Since he was anti-C.' I. 0. and joined the Machinists the tenor of his conversations on unionism cannot be doubtful. Forrer further admitted having talked with Eggerman about the activities of'the Machinists . Nothing appears in the record to indicate that the respond- ent made any 'move to restrain such union ' talk by its supervisors during working hours in its plant. 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their partisans solicited memberships in the presence of the respondent's super- visors and under the observation of Kaplan. These activities admittedly were not interfered with by the respondent. There is a striking and significant contrast here between the surveillance and discharge of Persky and the freedom, allowed those soliciting for the Machinists. Foreman Forrer admitted that he , was opposed to the C. I. O. and that he discussed union matters in the plant with the employees. under his supervision. Foreman Gunn, as found above, openly made suggestions that an employee join the A. F. of L. Under these circum- stances membership in the Machinists cannot be deemed to have resulted from the free desires of the employees. On the contrary, the undersigned finds that- the-employees in seeking such membership were influenced by'the interference, coercion and favoritism practiced by the respondent through its supervisory officials in the plant. The respondent's refusal to bargain -is thus 'established', by, its refusal to recognize the United's representatives on the morning of July 10; by its dismissal of the three members of the •United's committee on that and the preceding day; by its refusal to receive the letters which it admittedly knew were from the United ; by its non-cooperative attitude at conferences on July 23, 27 and 31; and by favoritism shown the Machinists' representatives during that organization membership campaign. 0 The undersigned finds that on July 13, 1942, and thereafter the respondent, , refused to bargain collectively with the United as the exclusive representative of its-employees in an appropriate unit in respect,to rates,of pay, wages, hours. of'employment and other conditions of employment and' thereby interfered ' with, restrained and coerced its employees in their exercise of the rights guaranteed by Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in 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 ob structingcommerce.and the,free flow of commerce. V. THE REMEDY The undersigned having found that the respondent has engaged in certain unfair labor practices will recommend that it cease and desist therefrom and, take certain affirmative action designed to effectuate the policies of the Act and, to restore as nearly as possible the conditions which,existed prior to the com- mission of the unfair labor practices. ' , - The undersigned has found that the respondent discriminated in regard to the hire and tenure of employment of Henry Persky, Eugene Decker and Neil Mbr- rison, because of their union membership and activity. To effectuate the policies of the Act it will be recommended that the respondent offer Eugene Decker and Neil Morrison immediate and full reinstatement to the former or substantially, equivalent positions without prejudice to their seniority and other rights and privileges and make them whole for any loss of pay they may have suffered by reason of the respondent's discrimination against them by payment to each of them of a sum of money equal to the amount which he-would normally'have 2 Matter of,,Chicago Apparatus , Company, and,,Federation of Architects, Engineers, • - Chemists and Technicians, Local 107, 12 N. L.,R. B. 1002. ' •• i CENTURY PROJECTOR CORPORATIONS 657 earned as wages from the date of his-discharge to the date of the respondent's offer of reinstatement, less his net earnings 21 during said period In as much as Persky has been inducted into the military service of the United States and is accordingly not available for immediate reinstatement it will be recommended that the respondent, upon application by Pesky within forty' (40) days after his discharge from the armed forces of the United States, offer him reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges. It will be further recommended that the respondent make Persky whole for any loss of earnings he may have suffered by reason of the respondent's discrimination against him by payment to him of a sum of money equal to the amount he would normally, have earned as wages during the periods (1) between the date of his discharge by the respondent and the date of his induction and (2) between a date five (5) days after Persky's timely application for reinstatement and the date of offer of reinstatement by the respondent, less his net earnings 22 during those periods. The undersigned has found that the respondent refused to bargain collectively. with the United Accordingly the undersigned will recommend that the re- spondent cease and desist from such unfair labor practice and to effectuate the policies of the Act, bargain collectively, upon request, with the United as true exclusive bargaining representative of its employees within the appropriate unit set forth above. The undersigned ,has. found that the 'respondent, aided and, encouraged the Machinists while discouraging membership in the United and that the contract signed on'September 30, 1942, with the Machinists was a result of such unfair labor practices. In order to restore the status quo and to free the employees of the respondent from these restraints upon their freedom in self-organization, it will be recommended that the respondent withdraw and withhold recogni- tion from the Machinists as the representative of any of its employees for the purposes of collective bargaining until such time as the said Machinists may be certified as their representative by the Board Since the contract between the respondent and the Machinists represents the fruits of the respondent's unfair labor practices and is a device to perpetuate its success, it will ne recom- mended that the respondent cease and desist from giving effect to said contract as well as to any extension, renewal, modification or supplement thereof, and to any superseding contract which may now be in force. However, nothing in said recommendation shall be taken to require the respondent to vary the wage, hour, seniority and other substantive features of its relations with the em- ployees themselves which. the respondent may have established 'in conformity with the said contract with the Machinists or' any extension, renewal, modifica- tion or supplement thereof or to prejudice the assertion by the employees of any legal rights they -may have thereunder.- f ai By "net earnings" is meant earnings less expenses, such as for transportation, room, and hoard, incurred by an employee in connection with obtaining work and working else- wheie 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 Sair,mill Workers Union, Local 2590, 8 N L. If. B. 440. Monies re- ceived for work performed upon Federal,, State, county, municipal, or other work-relief projects shall be considered as eainmgs. See Republic Steel Corporation v. N. L. R. B., 311 U. S 7. 22 See footnote 21, sepia 123 'Matter, of Louis P Cassott d. b.` a. Central Paint d Varnish Works' and Local 13129, Paint, Varnish and Allied Products Derrision, United Mine Workers of America, Dist. 50, et at, 43 N. L. R. B. 1193. 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The undersigned has found that the respondent interfered with, restrained' and coerced its employees in the exercise of the rights guaranteed them by the Act. It is plain , therefore , that the respondent must cease and desist from interfering with; restraining and coercing its employees in the exercise of such- rights and the undersigned will so recommend. -Upon the basis of the above findings of fact and upon the entire record in the case, the undersigned makes the following: Conclusions of Law 1. Local 475, United'Electrical, Radio & Machine Workers of America, C. I. 0., and District, 15, International Association of Machinists, A F of L., are labor organizations, within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Henry Persky, Eugene Decker and Neil Morrison, and thereby discouraging membership in Local 475, United Electrical, Radio & Machine -Workers of America, C. I. 0, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 3. At all times material herein the production and maintenance employees- of the respondent employed at its Brooklyn plant, exclusive of clerical em- ployees, engineers, technicians and supervisory employees, with the various. exclusions and inclusions, more particularly stated, above, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 4. Local 475, United Electrical, Radio & Machine Workers of America, C. I. 0., was on July 13, 1942 and at all times thereafter has been the exclusive repre- sentative of all employees in such unit for the purposes of collective bargain- ing, within the meaning of Section 9 (a) of the Act. 5. By refusing on July 13, 1942, and thereafter, to bargain collectively with Local 475, United Electrical, Radio & Machine Workers of America, C. I. 0., as the exclusive representative of its employees in'the above described unit, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 6. By interfering with, restraining and coercing its employees in the exer- cise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the above, findings of fact and conclusions of law, the undersigned recommends that the respondent, its officers, agents, successors, and assigns shall: 1. Cease and desist from: (a) Discouraging membership in Local 475, United Electrical, Radio & Machine Workers of America,-C. I O ; or any other labor organization of its employees, by discharging any of its employees or in any other manner dis- criminating in regard to their hire and tenure of employment or any term or ,condition of their employment; . (b) Refusing- to bargain collectively with Local 475, United Electrical, Radio, & Machine Workers of America, C I. 0., affiliated with the Congress of Ilidus- trial Organizations , as the exclusive representative of its employees in the 1 CENTTJRY PROJECTOR CORPO'RATI'ON1 659 unit described above in respect to rates of pay, wages, hours of employment or other conditions of employment ; (c) In any other manner interfering with, restraining or' coercing its em- ployees in the exercise of 'the right to self-organization, to form, join or assist labor organizations, to bargain collectively, through 'representatives of their own choosing and to engage in concerted activities for the 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) Offer to Eugene Decker and Neil Morrison immediate and full reinstate- ment to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges ; (b) Make whole Eugene Decker and Neil Morrison for any loss of pay they- may have suffered by reason of the respondent's discrimination against them by payment to each of them of a sum of money equal to that which he nor- mally would have earned as wages during the period from the date of his dis- charge to the date of the respondent's offer of reinstatement, less his net earn- ings during said period. (c) Upon application by Henry Persky within forty (40) days after his discharge from the armed forces of the United States, offer him immediate and full reinstatement to his former or a substantially equivalent position without prejudice to his seniority or other rights, and privileges; (d) Make whole Henry Persky for any loss of earnings he may have suffered by reason of the respondent's discrimination against him by payment to him of a sum of money equal to the amount he normally would have earned as, wages curing the periods (1) between the date of his discriminatory discharge by the respondent and the date of his induction into military service, and (2) between a date five (5) days after Persky's timely '4 application for reinstatement and the date of respondent's offer of reinstatement, less his net earnings during each of these periods ; (e) Upon request, bargain collectively with Local 475, United Electrical, Radio & Machine Workers of America, C. I. 0, as the exclusive representative of all employees within the appropriate unit set forth above, with respect to rates of pay, wages, hours of employment and other conditions of employment ; (f) Withdraw and withhold all recognition from District 15, International Association of Machinists, A. F. of L., as the representative of any of its em- ployees for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment and other conditions of employment unless and until that organization has been certified by the National Labor Relations Board as' the representative of respondent's employees, within an appropriate unit ; (g) Post immediately in conspicuous places at its plant at 1 Junius Street, Brooklyn, New York, 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 paragraph 1 (a), (b), and (c) of the aforesaid recommendations; (2) that the respondent will take the affirmative action set forth in paragraph 2 (a), (b), (c), (d), (e), and (f) of these recommendations; and (3) that the re- spondent's employees are free to become or remain members of Local 475, United Electrical, Radio & Machine Workers of America, C. I. 0., and that the respondent }vill not discriminate against any employee because of membership in or activity on behalf of this organization ; ati As provided in paragraph 2 (c) of these recommendations. 5 3164 7-4 3-vol. 49--4 3 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (h) Notify the Regional Director for the Second Region in writing within ten (10) days from the date of the receipt of this Intermediate Report, what steps the respondent has taken to comply herewith. It is further recommended that, unless on or before ten (10) days from the receipt of this Intermediate Report, the respondent notifies said Regional Director 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. I 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 2S, 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 he relies upon, together with the original and four copies of a brief in support thereof. As further provided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10). days from the date of the order transferring the case to the Board. Dated January 30, 1943. CHARLES E. PERSONS, Trial Examiner.