Gilfillan Bros., Inc.

In the Matter of GILFILLAN BROS., INC. A CORPORATION and INTER- NATIONAL ASSOCIATION OF MACHINISTS, DISTRICT LODGEf #94, FOR AND ON BEHALF OF LODGE #311. Case No. 21-C=281.Decided November 13, 1943 DECISION AND ORDER On September 11, 1943, the Trial Examiner issued his Intermediate Report in the above-entitled proceeding. He found that the respond- ent had not engaged in unfair labor practices as alleged in the com- plaint, within the meaning of Section 8 (3) of the Act, but that.the respondent had engaged in and was engaging in certain unfair labor practices within the meaning of Section 8 (1) and (2) of the Act, and he recommended 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 filed exceptions to the Intermediate Report and a brief in support of its exceptions. Neither the I. A. 31. nor the Association filed exceptions or a brief. Pursuant to notice and at the request of the respondent, a hearing was held before the Board at Washington, D. C., on October 28, 1943, for the purpose of oral argument. The respondent and the I. A. M. were represented by counsel and participated in the hearing. The Board has considered the Intermediate Report, the respond- ent's exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner subject to the following clarifying statement. While no single fact set forth in the Intermediate Report, con- sidered alone, justifies the conclusion that the Association is a com- pany-dominated labor organization, under all the circumstances taken together, including particularly the financial assistance given by the respondent to the Association, the activity of leadmen 1 in behalf of that organization, and the circumstances leading to and surrounding the execution of the 1943 contract, asset forth in the Intermediate Report, we are convinced and we find that the respondent dominated 1 Including Margaret Goebel. 53 N. L. R. B., No. 104. 574 GILFILLAN BROS., INC. 575 and interfered with the formation and administration of the Associa- tion and contributed support to it. The respondent has moved to dismiss the case on the ground that the National Labor Relations Board Appropriations Act, 1944,2 pre- cludes the Board from proceeding herein, since the complaint as amended seeks to set aside as illegal a contract between the respondent and the Association executed in May 1943.' In support of its conten- tion, the respondent argues that the 1943 contract is an agreement which has been in existence for 3 months or longer without complaint being filed,4 since that contract is a mere continuation of a contract between the same parties executed in April 1942. We. find no merit in, the respondent's contention. Although the 1943 contract recites on its face that the parties intended to continue in existence the 1942 contract, the 1943 contract is a negotiated new contract containing substantive provisions with respect to terms and conditions of em- ployment not found in the preexisting contract.' Under the cir- cumstances we are of the opinion that the 3-month limitation period became operative on the date of the signing of the new contract. Thus, the 1943 contract has not been in existence for 3 months or longer with- out complaint being filed, within the meaning of the 1944 Appropria- tions 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, Gilfillan Bros., Inc., and its officers, agents, successors and assigns, shall : 1. Cease and desist from : (a) In any manner dominating or interfering with the administra- tion of Gilfillan Employees Mutual Association, or with the forma, tion or administration of any other labor organization of its em- 2 Title IV, Act of July 12, 1943, P. L. 135, 78th Cong, 1st Sess. The Appropriation At contains the following provisions . "No part of : the funds appropriated in this title shall be used in any way in connection with a complaint case arising over an agreement between management and labor which has been in existence for 3 months or longer without complaint being filed Provided, That, hereafter notice of such agreement shall have been posted in the plant affected for said period of 3 months, said notice containing information as to the location at an accessible place of such agreement A here said agreement shall be open for inspection by any interested person " 3 The complaint was amended on July 7, 1943 . While neither the charge nor the first amended charge filed herein on March 8 and May 5, 1943, respectively, directly attacked the validity of any contract, they included allegations of unfair labor practices with respect to the Association, within the meaning of Section 8 (2) of the Act. 4 Under a ruling of the Comptroller General of the United States , B-35803 , dated July 29, 1943, the provision in question limits the use of funds to those cases in which charges have been filed within 3 months of the execution of a labor agreement , but prescribes no limita- tion as to the time within which a complaint may be issued by the Board. 5 These include provisions relating to wages. grievance machinery , extra pay for holiday work. and .vacations with pay. 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees, and from contributing support to Gilfillan Employees Mutual Association or to any other labor organization of its employees; (b) Recognizing Gilfillan Employees Mutual Association as the representative of any of its employees for the purpose of dealing with the'respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment; (c) Giving effect to the contract of May 1, 1943, with Gilfillan Em- ployees Mutual Association, or to any modification, extension, or renewal thereof ; (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through rep- resentatives of their own choosing, and to engage in concerted activ- ities 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) Withdraw all recognition from Gilfillan Employees Mutual Association, and completely disestablish that organization, as th'; representative of any of the respondent's employees for the purpose of dealing with the respondent concerning grievances, labor disputes, rates of pay, wages, hours of employment, or other conditions of em - ployment; (b) Post immediately in conspicuous places in its plant in Los Angeles, California, 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); (c), and (d) of this Order; and (2) that the respondent will take the affirmative action set forth in paragraph 2 '(a) of this Order; (c) Notify the Regional Director for the Twenty-first Region in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint as amended be, and it hereby is, dismissed insofar as it alleges that the respondent dis- criminated with respect to hire and tenure of employment, within the meaning of Section 8 (3) of the Act. INTERMEDIATE REPORT Mr. William B. Estei man , for the Board. Nourse & Jones, by Mr. Paul Nourse and Mr. Everett W. Thompson of Los Angeles, Calif., for the respondent. Mrs. Myrtle M. Vole and Mr. Bennie C. Dale, of Los Angeles, Calif., for the I. A. M. Mr. Phillip L. Wilson, Jr., of Los Angeles, Calif., for the Association. 1 GILFILLAN BROS., INC. STATEMENT OF THE CASE 577 Upon amended charges duly filed on May 5, 1943, by International Association of Machinists, District Lodge #94, for and on behalf of Lodge #311, herein called the I. A. M., the National Labor Relations Board, herein called the Board, by the Regional Director for the Twenty-first Region (Los Angeles, California), issued its complaint dated May 22, 1943, against Gilfillan Bros., Inc., Los Angeles, California, herein called the respondent, alleging that the respondent had en- gaged in and was engaging in unfair labor practices within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and ( 7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accompanied by notices of hearing thereon were duly served upon the respond- ent, the I. A. M., and also upon Gilfillan Employees Mutual Association , herein called the Association. With respect to the unfair labor practices the complaint alleged in substance that the respondent : ( 1) through various officers , agents, and supervisors spon- sored, promoted, assisted, and interfered with the formation of the Associa- tion, dominated and interfered with its administration, and contributed support thereto ; and that various collective bargaining agreements executed between the respondent and the Association at various times from 1937 to 1943 were illegal, and should be set aside ; (2) discourage its employees from affiliating with or being active on behalf of the I. A. M. by making uncomplimentary statements to the employees regarding the I . A. M.; stating that union mem- bership would not serve to better their conditions of employment , but would in fact render such conditions less favorable ; referring to members and officials of the I. A. M. as racketeers and undesirable foreigners ; threatening to cancel smoking and other privileges and to reduce or eliminate overtime work ; and by discriminating between the I. A. M. and the Association with respect to the use of company bulletin boards; (3) on February 22, 1943, discharged and has since failed and refused to reinstate Bess Allison , Anna Cox, Myrtice DeShazo, Mary Elsenius, Daisy Mix, Ella Richardson , Mary Sharman , and Alice Taylor, because of their membership in, and activity on behalf of, the I. A. M. Pursuant to notice, a hearing was held at Los Angeles, California, from June 30 to July 16, 1943, before the undersigned, Charles W. Schneider, the Trial Examiner duly designated by the Chief Trial Examiner. The Board, the re- spondent, and the Association were represented by counsel and the I A. Al. by representatives , and all parties participated in the hearing . Full opportunity to be heard , to examine and cross-examine witnesses , and to introduce evidence hearing on the issues was afforded all parties. At the opening of the hearing the Association filed a motion to intervene, which was granted by the undersigned to the extent of the Association's in- terest in the proceedings . The respondent filed an answer denying the com- mission of the alleged unfair labor practices . During the course of the hearing the respondent and the Association moved to dismiss the complaint on the ground that the Appropriation Bill of 1944 had deprived the Board of juris- diction to proceed.' The undersigned denied these motions. During the hear- ing counsel for the Board moved, without objection , to amend the complaint. The undersigned granted the motion! At the conclusion of the hearing the I National Labor Relations Board Appropriation Act, 1944, Title IV, Act of July 12, 1943, P. L. 135, 78th Congress, 1st Session. 2 The effect of the amendment was to delete from the complaint all allegations that con- tracts between the respondent and the Association were illegal , other than a contract alleged in the complaint to have been made on or about May 1, 1943 The amendment averred that the latter agreement was invalid and should be set aside 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD parties argued orally before the Trial Examiner, but stated that they did not desire to file briefs. Upon the entire record in the case, and from his observation of the 'wit- nesses, the undersigned makes, in addition to the above, the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Gilfillan Bros, Inc., is a California corporation engaged in the production of war materials. Prior to 1940, the respondent manufactured radios and refrig- erators. During 1942, more than 11 percent of the' materials purchased by the respondent, amounting in value to more than $100,000.00; were'received from sources outside the State of California. These purchases were made 'in the performance of contracts with the United States Government. During the "same period the respondent shipped to points outside the State 'of California, products valued in excess of $100,000.00, amounting to 28 percent of the re- spondent's total volume of production in 1942. •' ' '" II. THE ORGANIZATIONS INVOLVED' I ' ' ,International Association of Machinists, District Lodge #94 and Lodge #311, and Gilfillan Employees' Mutual Association, are labor organizations ad- mitting to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Domination of and Interference with the Associ ation; Events prior to 19411 Early in 1937 the United Electrical, Radio and Machine Workers of America, Local 1421, an affiliate of the C. I. 0., began an organizational campaign among the respondent's employees. At about the same time, several employees ap- proached John R. Semple, then ' the respondent's personnel manager, and asked his advice on how to form an unaffiliated union. Semple referred the. em- ployees to the library and to Roberts' Rules of Order. Subsequently the As- sociation held its first meeting in the respondent's plant. Semple made the arrangements for the use of the plant for that meeting' On May 1, 1937, Local 1421 filed a petition with the Regional Office of the Board, requesting certification as collective bargaining representative of, the respondent's employees. A consent election was held on May 19, 1937, with Local 1421 and the Association on, the ballot The election was won -by the Association, which was then certified by the Regional Director as the bargaining agent of the employees. About August, 1937, the respondent entered into, a collective bargaining agreement with the Association. Various renewal con- tracts have been negotiated from time to time since. The latest of,these agree- ments was executed about May 10, 1943, effective May 1. , Within a short time after the organization of the Association, the respond, ent,began to contribute to the Association the proceeds of various vending machines located in the plant. This, income had previously been divided be- tween the respondent and the owner of the machines. Thereafter, the respond- 8 Semple testified, that the Association's organizers told him that they had no money, and that he then had space cleared on the upper floor of the plant, where the Association met. - GILFILLAN BROS., INC. 579 ent continued to receive the proceeds but made periodic remittances thereof to the Association' That arrangement has continued down to the present time.' In the summer of 1937, the respondent sponsored a picnic for the employees. In 1938 the Association asked and received permission to become the sponsor of the picnic for that year. The Association's name appeared on the publicity advertising the picnic. It was unable, however, to finance the affair adequate- ly. Semple thereupon asked President Gilfillan to underwrite whatever deficit the Association incurred, in order that the standard set by the picnic of 1937 could be maintained. Gilfillan agreed. The respondent's vice president, Sparks, induced various merchants to donate prizes. All employees and their families and friends were invited to attend. The respondent subsequently liquidated a deficit of from $100 to $200 incurred by the Association in sponsoring the picnic. 4 The 1941 charges On May 6, 1941, Local 311 of the I. A. M. filed charges alleging that the respondent had discriminately discharged an employee, had "encouraged and interfered with the formation" of the Association and had otherwise inter- fered with, restrained and coerced its employees. On, the recommendation of Field Examiner Cameron, and with the approval of the Regional Director, the case was subsequently settled and the charges withdrawn. Pursuant to the terms of the settlement, the respondent on November 11, 1941, in a letter to the Regional Office, stated that it would (1) "instruct its foremen and leadmen not to accept places on committees of labor organizations having members in the employ of [the respondent] and not to influence the employees with respect to union affiliations in any other manner;" (2) " . . . not in any manner domi- nate-or interfere with the administration of the . . . Association or any other labor organization [of its employees] ;" and (3) post the statement for a period of sixty days. The respondent immediately posted in the plant a carbon copy of the letter. Events of 1943 About January 10, 1943, the I. A. M. began an organizational campaign among the respondent's employees. Handbills and authorization cards were distributed at the gates of the plant. On February 17 and 26, open meetings were held by the I. A. M. at a hall near the plant for the purpose of explaining the I. A. M. to the respondent's employees. By late February a substantial number of the employees had signed I. A. M. authorization cards or applications foi- membership. On February 22, the night shift of women employees in the burr and rework department of the machine shop was abolished. Of the 20 employees in the 4 These findings are based on the testimony of Semple. He testified that the Association was "constantly short of funds" and that a committee came to him and asked that the proceeds of the machines be contributed to the organization. Semple then arranged with the respondent's president, S. W. Gilfillan, for the transfer of the income. ,c Semple testified that at that time the income from the machines was about $12.00 a month. Semple left the respondent's employ in 1939. For the period from July, 1941, through March, 1943, the Association's income from dues was $532.46. During the same period, the respondent paid over to the Association, from the receipts of Coca Cola and candy machines, the sum of $333.10. At the time of hearing, the respondent was also car- rying on its books an account payable to the Association, in the amount of $30.00, repre- senting income from candy machines only. $15 .00 of that sum was for such income from January to March, 1943 ; the remainder represented income after March . The account did not include receipts from Coca Cola. Dues collections and vending machine income for other periods were not disclosed. 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD department 6 were transferred to the day shift, the remainder were laid oft.' The lay-offs were made on the basis of seniority. On February 23, 1943, the I. A. M. filed with the Regional Office of the Board a petition claiming that the I. A. M. represented a majority of the repondent's production and maintenance employees and requesting an investigation and certification of representatives. On February 27, the respondent and the Asso- ciation received notice from the Regional Office of the filing of the petition. About March 6, the officers of the Association met with S. W. Gilfillan, presi- dent of the respondent, in the latter's office, to discuss the renewal of the 1942 contract between the Association and the respondent. According to the testi- mony of Otto Stegner, Vice-President of the Association, Gilfillan asked how the Association was functioning, and whether it was in "good order" ; and stated that if it was not, it should "get on its toes" and "combat" the election : which the I. A. M. was demanding.? According to the testimony of Association president, Roy Johnson, Gilfillan stated that he would not enter into a contract with the Association without assurance that it represented a majority. Johnson told Gilfillan that he would ascertain how many members the Association had. Several days thereafter, according to Johnson, when Gilfillan was "making the round" through the shop, Johnson told him the number of employees who had paid dues to the Association during the month of March .8 On March 8,' the I. A. M. filed charges alleging that the respondent had dominated and interfered with the administration of, and contributed support to, the Association ; and further alleging that by the lay-offs of February 22, the respondent had discharged its employees and discriminated against them be- cause of their membership in and activities on behalf of the I. A. M. On April 12, the I. A. M. sent the respondent a letter stating, inter alia, that because of the unfair labor prdetice charges, the I. A. M. had "temporarily and without prejudice" withdrawn its petition for certification ; but that the I. A. M was the represent- ative of the respondent's employees, and that any further collective bargaining between the Company and the Association would be "without legal force and effect" and would be "protested" by the I. A. M. The 1942 contract between the ,respondent and the Association provided that it should terminate on April 30, 1943. On April 29, the respondent entered into an agreement with the Association extending the 1942 contract for a period of 30 days to June 1, 1943. Except for the statement made by Johnson to Gilfillan, related above, as to the number of employees who had paid Association dues dur- ing March, no proof of majority was furnished by the Association., Sometime between May 5 and 10, 1943, the Company entered into a new con- tract with the Association effective May 1, for a period of 1 year, and continuing 6 The circumstances surrounding these lay-offs are discussed more fully infra, Section III, B. - These findings are based on the testimony of Stegner on direct examination . On cross- examination, Stegner testified that Gilfillan in substance said that if there was to be an election , he did not want to enter into any contract until he knew which organization repre- sented the employees. The testimony of Roy Johnson, president of the Association, who testified later in the hearing, was similar to that of Stegner on cross -examination . Stegner did not, however, retract the specific statements he attributed to Gilfillan, nor did Johnson deny that they were in fact made . The undersigned accepts Stegner's direct testimony as to what Gilfillan said. 8 Johnson did not state what figures he gave Gilfillan. He had previously testified that 294 employees paid dues to the Association during March. However, Association dues col- lections in February totaled only $36.75, and in March $53 25. Dues are $.25 monthly. The collections would thus represent 147 dues payments in February and 212 in March. The respondent employs in excess of 450 employees. 0 GILFILLAN BROS., INC. 581 thereafter subject to 30 days notice of termination. This contract substantially revamped the respondent's wage structure and provided for wage increases. Use of the respondent's premises by the Association Use of the respondent's premises by the Association for solicitation of member- ship and collection of dues was widespread. Harley Bucknell, a lion-supervisory employee in charge of the too] crib in the machine shop, regularly and openly collected dues for the Association while on duty in the tool crib, to the knowl- edge of, and without objection from, the supervisors. On one occasion when Bucknell was absent from the tool crib, Alice Taylor, ah employee in the burr department, was told by Margaret Goebel, leadlady, or forelady, over the burr department employees on the night shift, to pay her dues to Roy Johnson, which Taylor did.' Johnson also collected dues on various other occasions. Associa- tion memberships were openly solicited during working hours with no attempt at concealment and without rebuke from the supervisors. On the other hand, when General Foreman Walters apprehended an employee soliciting for the I. A. M. in the washroom, he told the employee that "that was one A. F. of L. rule-that they were specifically told not to [violate]." '0 The Association's monthly meetings were held during working hours. Notices announcing these meetings were posted on the plant bulletin boards. The day shift ended at 6 p. in. The night shift began work at that time. Association meetings, lasting an hour or more, were held at 5:30 p. m. in order to catch both shifts. The employees were excused from work without pay in order to attend the meetings. Superintendent Cramer, when asked by Leadman George Nelson whether the employees should be allowed to attend the Association meet- ing of January 4, was told by Cramer that they would shut down. When Nel- son asked if that was necessary, Cramer answered that it was, that "as an ofli- cial of the Company," lie could not say anything, but that the employees should all go to the meeting in a body ; that they might get a raise out of it and keep some other union from coming in." Nelson then instructed his employees to go to the meeting. Leadlady Goebel told employees that they were expected to go to Association' meetings.'2 Goebel regularly solicited memberships for the Association among the e Leo Pfleger, treasurer of the Association , testified that Leadman Oswald Lundberg, Loretta Schwartfeger and Otto Stegner during 1942 and 1943 turned over to him money derived from dues collections. The supervisory status of these employees and of Goebel and Johnson is discussed infra 10 This finding is based on Walters' testimony. During the rest periods, which was time paid for by the company, there was some sporadic I. A. M. solicitation , but, except for one such incident cited by Walters , there is no evidence that it came to the attention of the supervisors. 11 This finding is based on the testimony of Nelson . Cramer testified that when notices of Association meetings were posted in the plant, he would be "flooded" with questions, such as "do we have to go '" "Should we go ?" "Are you going to shut down the plant cad make us go"' ; and that he told the employees that they did not have to go. However, lie testified that he probably did say to Nelson that "personally as an official of the company, [I] can't say anything, but that they should all go over there "; that "personally , if they expected to get any benefit from any association they should forfeit something to it. Therefore , I think they should go to it." Asked whether he told Nelson that the em- ployees should go to the meeting in a body ; that they might get a raise and keep out some other union , Cramer's testimony was "Not that I recall, no," and "I don't think so." 12 This finding is based upon the testimony of Mary Elsenius, Alice Taylor, Myrtice DeShazo, and Ella Richardson. Goebel testified that she attended the meetings and that the girls always accompanied her ; that she never told them that they had to go, but might have said that "it was time to go if they were going. " The undersigned does not credit Goebel's denial. I 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD girls under her.' Foreman Brussow, a supervisory employee with authority to discharge, collected Association dues.14 The supervisory status of leadmen The Board contended , and the respondent denied, that ]eadmen in the machine shop arersupervisory employees . The following persons took part in . Association activity while occupying the positions of lead employees : Margaret, Goebel, whose activity had been discussed heretofore ; James Clark, former night milling machine, leadman, who was elected to the Association grievance committee in January or February f943.w Oswald Lundberg, day milling machine leadman, and a former president of the Association , to whom Bucknell regularly turned over, for transmission to Pfleger , Association dues which Bucknell had collected. Bucknell testified - that he had been collecting Association dues "near to a year," and,that he began to do so at the request of Lundberg ; Al (A. V.) Bleuel, present night milling machine leadman , who was a member of the Association committee which negotiated the 1943 contract with the respondent, and whose signature appears thereon as a representative of the Association ; Rog Johnson, acting or temporary leadman on the milling machines , swing shift, who is president of, the Association and has participated prominently in all its activity ; 11 and Walter 13 Anna' Cox testified that Goebel told her, "we have a union of our own . If you w ant to join go to the tool crib and pay your dues." Elsenius testified that shortly after she was employed in November , 1942, Goebel asked Elsenius and Long, another employee, whether they belonged to,the Association . Elsenius asked what the Association was. Goebel replied, "That"is the employees union and everyone is expected to join." Elsenius then said that she was not in favor of company unions but that she "would join if it were com- pulsory." Goebel then told Elsenius to "Go to the tool crib and sign up with Mr. Bucknell." Taylor testified that she was asked by Goebel whether she had paid dues to the Association. When Taylor said that she had not, Goebel told her to go to Bucknell and join. Taylor then joined because she thought it was compulsory . Richardson testified that during the first week of her employment she was asked by Goebel whether she had joined the Associa- tion. When Richardson replied that she had not , Goebel told her to go to Bucknell who would take her application and give her a card. DeShazo testified that several days after she was employed , Goebel suggested that DeShazo see Bucknell about joining the Association DeShazo did not do so at that time. Some time afterward Bucknell sent word to DeShazo that he ,wanted to see her in the tool crib. DeShazo then joined the Association. DeShazo further testified that in February Goebel asked her whether her dues were paid up in the Association DeShazo told Goebel that she did not intend to pay any more dues Goebel thn said that DeShazo had no reason to object to paying dues since at the only meeting which DeShazo attended she had won a War Bond . Goebel testified that she was a member of the Association and attended most of the meetings and stated that she would speak to the girls about joining the Association after they "were there for a while" and tell them that,'"if they cared to join to go down to Bucknell at the tool crib and he would explain it to them." The undersigned credits the above mentioned testimony of Cox, Elsenius , Taylor, Richardson , and DeShazo . The 1942 contract provided that new employees were to become members of the Association after 4 week 's employment, and old employees within 90 days from the execution of the contract "without coercion on the part of management". In practice, the provision requiring membership as a condition of employment was not,enforced 14 Brussow signed an I . A M. authorization card. There is no evidence that he engaged in any I A M. activity. 16 The testimony of Johnson was that Clark did not act on the committee . The under- signed does not deem that fact to be controlling , in view of Clark's election at an 'open meeting of the Association. ' 11 The respondent's evidence with respect to"the status of Johnson, was that he was made a temporary leadman in July , 1942 because the respondent was unable to secure a competent leadman; that Johnson was appointed with the understanding that he would exercise no supervisory authority and would occupy the position only until a competent leadman could be secured ; that he did not receive a leadman's pay ; that several men were thereafter tried out in the position, but that for various reasons they proved unsatisfactory ; that in Febru- ary, 1943; when a competent leadman was secured, Johnson was transferred to a turret lathe as an operator , without any change in pay. From September 13, 1942, to February 28,1943, Johnson received raises aggregating $.141/a per hour. The testimony of Goebel, GILFILLAN BROS., INC. 583 Scheid,- who since February 7, 1943, has been general foreman of the swing shift, and prior to that -,uas a leadman on the automatic screw machines. Late in 1940 the plant was destroyed by fire. In the following June, after its reconstruction, Scheid was appointed at an Association meeting, as a "com- mittee of one" to arrange for the installation of new vending machines. Scheid spent several days consulting with vendors. When the machines were installed he took charge of them and arranged for the income to be sent to the respondent, for the credit of the Association. Johnson, Lundberg, and Bleuel were paid by the Association for time lost from work while on Association business. Under General Superintendent Cramer, in the machine shop are 3 general foremen, one in charge of each shift, and having authority to discharge. Under each of the general foremen on the day and night shifts are 4 to 5 leadmen or foremen," each having charge of from 7 to 20 employees.18 There are no leadmen on the swing shift. Some of these leadmen also have set-up men under them. Night General Foreman Walters testified that the set-up man is subordinate to the leadman, and that the latter is "boss." Leadmen have no authority to hire or.discharge. They are hourly paid and, under the terms of the 1942 and 1943 contracts, receive 15 cents more per hour than "their setup•[or] top man." 19 Leadmen set up the machines, run off several sample parts, check them for correction, and, if the result is satisfactory, turn over the machine to the operator. If the operator has sufficient experience to set up his own machine, the leadman oversees the setting up, and checks the final result before the operator begins production. After the machine is in operation, the leadman returns at intervals to check quality and blue print tolerances and, in general, oversees the operation. Except on the automatic screw machines, the leadman normally does no production work. According to the respondent's testimony, leadmen were created in 1941 because of the inability to secure experienced operators who could set up their own machines. Vice-president Sparks testified that their only authority over the operator is to report to the foreman unsatisfactory work or violation of the leadmen's instructions; and that the foremen are instructed to make their own investigation of complaints by the leadmen before disposing of them. Superin- tendent Cramer testified that when leadmen complained to him concerning opera- tors, he made his own investigation. However, General Foreman Walters relied on his leadmen to ascertain the facts respecting an employee's standard of performance; consulted with them respecting decisions, allowed them "a good bit to say," and gave weight to their opinions. In the burr department, under Leadlady Goebel, there were from 15 to 20 girls, mainly inexperienced, to whom Goebel assigned work and gave instructions. Goebel frequently selected employees from this group to do machine work when the machine leadmen requested extra help. HoWyever, when she could not spare Nelson, Richardson, and Hines, discloses that whatever limitations were imposed on Johnson's actual authority, he was regarded in the plant as a leadman. The undersigned finds that he occupied such a position from July, 1942 to February, 1943, while president of the Association 17 Witnesses used both terms in describing these employees . The 1943 contract refers to them as "foremen." For the purpose of clarity they will be uniformly referred to herein as lei dmen 18 Equipment in the machine shop consists of 14 automatic screw machines , 14 turret lathes, 10 milling machines, and 43 drill presses. At the time of the events herein, there was a leadman for each of those groups of machines. Goebel's burr department also com- prised part of the machine shop. 19 The 1943 contract provides that set-up men are to be paid "at least $ 10 more than the top men under them." j 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the girls, Goebel would refuse to permit their transfer, unless ordered to do so by the foreman. Leadman Nelson recommended to Walters the discharge of it number of employees. One or two of-these were transferred to the day shift. The remainder were discharged Walters testified that he believed that he followed all of Nelson's recommendations. Goebel reported two employees as incompetent. They were discharged. Leadman Lundberg "recommended" discharges and gave opinions to his supervisors, concerning employee's performances, which were given weight 2° By the settlement agreement of 1941 the respondent agreed to "instruct its fore- men and leadmen not to accept places on committees of labor organizations . . . and not to influence the employees with respect to union affiliations in any other manner." The agreement obviously constituted it recognition that the status of leadmen was such that prominent union activity by them was incon- sistent with the respondent's duty to maintain neutrality in the matter of employee organization. . The posting of the settlement agreement served notice of that fact on the employees. Other factors, also, suggest the identification of leadmen with management in the eyes of the employees, the respondent, and the Association. Thus the contract of 1942 referred to employees as being "under [the] supervision" of leadmen, and significantly provided that the respondent should have "complete control over the leadmen as to their selection and working conditions." (Italics added.) Moreover, it is evident from the testimony that some of the employees regarded leadmen as their superiors,' or "bosses." General Foreman Walters considered and gave weight to the opinions and recommendations of leadmen with respect to the work of men under them, and Lundberg's opinions were solicited by his superiors. It is evident from the foregoing facts that lead employees in fact exercised such authority as to effect changes in the status of employees, or effectively recommended such action. The undersigned therefore finds that the lead em- ployees were, at all times material herein, supervisory employees. In addition, the undersigned finds that, irrespective of the supervisory status of lead em- ployees, the other employees were justified in inferring, and did in fact infer, that the leadmen represented and spoke for the management, and that, for that reason also, their activities are attributable to the respondent. Schwartfeger, Pfieger, and Stegner Counsel for the Board contended that the activities of Loretta Schwartfeger, Leo Pfleger, and Otto Stegner are attributable to the respondent. Loretta Schwartfeger was employed by the respondent on March 16, 1942. After working for 5 weeks on the burr bench she was transferred to inspection on the night shift. On May 31, 1943, she became a confidential filing clerk. From a starting wage of 50 cents per hour, Schwartfeger's pay was increased by various stages to 95 cents. In the inspection department, Schwartfeger instructed 8 or 9 inspectors, secured blue prints and gauges for them, and checked their work. At times she also did some inspecting. Assisting Schwartfeger was another girl whom Schwartfeger described as her "assistant." The assistant's work consisted 21 In an affidavit which he made to a Field Examiner of the Board, prior to the hearing, Lundberg stated that, "I did not have authority to fire on my own but I did have authority to recommend the dischaige of employees At the hearing, Lundberg denied that he .11 had authority to recommend discharge, and testified that by the statement in the affidavit he meant that he could "`suggest" discharge. He also testified that his superiors con- sulted with him with respect to the calibre of work of the operators under him, and that he "suggested" raises for some. It is evident that Lundberg's opinion must have carried some weight, since it was solicited. The undersigned so finds. GILFILLAN BROS., INC. 585 of "helping the girls, getting their gauges," and giving them instructions. Later Schwartfeger was transferred to the day shift. There she had 20 girls, and another assistant. Schwartfeger collected dues for the Association during work- ing hours. The undersigned finds that she performed the duties of a leadwoman 21 Leo Pfteger has been treasurer of the Association since 1941. From 1920 until 1940 he was a foreman in the machine shop. In the fall of 1940 he left the respondent's employ. On January 29, 1941, he returned as a toolmaker at $1.15 per hour. He is presently engaged in a secret project in connection with the war. He shares an office with another employee, but spends most of his time in the plant. There are no employees under him. Since he returned to the respondent's employment, Pfleger's wages have been increased by various stages to $1.55 an hour. The undersigned finds no substantial evidence that at any time material herein, Pfleger's employment was such to warrant attributing his activities to the respondent. Otto Stegner is vice president of the Association, and a member of its grievance committee. He signed the 1943 contract as a representative of the Association. He is classified as a "final inspector." His duties consist of the inspection of work as it comes from various parts of the plant, ascertaining from accompanying instructions what further processing the parts require, and dispatching them to the appropriate departments or outside contractor. Schumer, inspection "fore- man," is Stegner's immediate superior. Two employees, Hazel Smith and Ben Houtz, work with Stegner. Smith verifies job and part numbers. Stegner gives her most of her instructions. Houtz is under Al Dion, who is in charge of main- tenance on Stegner's floor. Houtz's job is to move heavy articles for Stegner at the latter's direction, as well as to do moving for various other persons on the floor. The undersigned finds that there is no substantial evidence to warrant attrib- uting Stegner's activity to the respondent. Conclusions as to domination and support Through Semple, the respondent provided the facilities for the organization of the Association. Later, when the Association needed funds, the respondent supplied a treasury by assigning it the proceeds of the vending machines. In 1938, the picnic sponsored by the Association was actually financed by the re- spondent. Thus, at critical stages in the Association's development, the respond- ent assisted in bringing it into existence, assured its continued existence by providing funds for its administration, and enhanced its prestige among the employees. Notwithstanding that, in the settlement agreement of 1941, the respondent agreed that it would not dominate or interfere with the administration of the Association, it nevertheless continued to permit the maintenance of vending machines in the plant, and even performed the function of fiscal agent for the Association. It is to be noted that from July 1941, to March 1943, the vending machines provided 40 percent of the Association's income.22 21 The above findings are based on the testimony of Schwartfeger , who was called as a witness by the Board . She testified that she did not know whether she was a leadwoman, and that when employees asked her whether she was she informed them that she did not know. Her pay roll record classifies her as "inspection" during the time in question. a The undersigned does not regard as significant the fact that the settlement contained no agreement by the respondent that it would cease contributing support to the Association. If the contribution of sums from the vending machines is deemed to have been outside the scope of the agreement, the settlement did not litigate the issue. If, however, the matter was within the scope of the settlement , the respondent's action, in continuing the arrange- 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ' Moreover, implicit in the settlement agreement was the understanding that the participation of leadmen in the affairs of labor organizations was to be confined to membership, and that the respondent would take effective steps to prevent their assuming ' prominent roles therein . Nevertheless, thereafter Leadlady • Goebel actively solicited the employees under her to join the Association , and told them that they were'expected to attendAssociation meetings . Goebel's approach was such that some employees concluded that ' membership in the Association, and at- tendance at meetings, was compulsory . Leadman Lundberg assisted in' the collection of dues ; Clark was on the Association grievance committee , Bleuel,, a member of the negotiating committee , Scheid, the Committee on vending ma- chines ; Schwartfeger collected dues ; and Johnson became president . But% the respondent took no remedial action. The employees were justified in inferring that the respondent's passive attitude implied approval of the lead employees' conduct :a . In order to further the policies and the administration of the Act, 'the Board will ordinarily give effect to settlement agreements; respecting unfair labor prac- tice charges, and will not consider evidence of unfair practices antedating the settlement and 'contemplated therein ." Any ' such agreement;- however , neces- sarily contemplates that the respondent will not thereafter engage in-the unfair labor practices which were the , subject of ' the settlement.' Where such prac- tices are resumed, effectuation of the-policies of the Act requires that the Board not' be precluded from giving consideration to events occurring, prior to 'the settlement.'-' • 1, '' 11 The fact that the Association participated in the 1937 election and,was there- after certified by the Regional Director is not a defense to the present , charges. Unfair labor practices were neither in issue ' nor litigated in that ' proceeding 26 After the settlement agreement the respondent continued its arrangement with the Association with respect to vending machine income ; permitted lead employees to take prominent part in the administrative , and promotional -activi- ties of the Association and to be members of its committees ; permitted open and widespread membership solicitation ' and dues collection ' in the plant during working hours ; arranged its operating schedule to accommodate Association meetings ; and encouraged employees to attend , those meetings . Thereafter, with knowledge of the fact that the I. A. M. claimed to represent its , , em- ployees, the respondent entered into a new contract with the Association without adequate proof that the Association represented a majority. Upon the whole record, the undersigned finds that the respondent has dom- inated and interfered with the formation and administration of the Associa- tion and contributed support thereto, and that it thereby interfered with', restrained and coerced its employee$ in the exercise of the rights guaranteed by Section 7 of the Act. It is further found that the respondent's contract of May .1 , 1943, with the Association, is an agreement made with an organization ment, constituted a persistence in unfair labor practices which the respondent warranted by the settlement that it would not resume. Cf. Corn Products Refining Company, 48 N. L. It. B. 193. - " :11 21 That the leadmen were fully aware of the impropriety of their leading activity in the Association is evident from Lundberg's testimony. He resigned as president of the Asso- ciation when he became a leadman. In addition, Richardson testified, without denial from Johnson, that early in January Johnson said to her, "I am going to have to resign as president [of, the Association] or go back to operating a machine because I shouldn't be holding an office in a company union and holding a position as foreman." Richardson's testimony is credited. , m Godchaux Sugars, Inc., 12 N. L. R. B. 568. zs Picker X-Ray Corporation, 12 N. L. It. B. 1384, 1935. , Hicks Body Company, 33 N. L. R. B. 858, 877 ; Picker X-Ray Corporation, supra. GILFILLAN BROS., INC. 587 not freely,choseu by the employees of the respondent as their. representative for the purposes of collective bargaining, and constitutes an illegal interference with the rights, guaranteed employees in Section 7 of the Act. In the undersigned's opinion, the respondent's favor and support, have so permeated the affairs of the organization as to prevent its functioning as an independent bargaining agent. Until the momentum supplied to the Associa- tion by the respondent's contributions, approval, and encouragement, has been dissipated, the employees will be deprived of type truly independent and unin- fluenced representation which the Act demands. When the respondent's influence has been dispelled, the employees will be free to determine for themselves the representation they genuinely desire. B. The alleged discriminatory discharges On February 22, 1943, without advance notice, the respondent abolished' the night shift in the burr and rework department, consisting of some 20 employees, including Goebel. The complaint alleged that the respondent thereby discharged Bess Allison, Anna Cox, Myrtice DeShazo, Mary Elsenius, Daisy Mix, 'Ella Richardson, Mary Sharman, and Alice Taylor because of their membership in and activities on behalf of the I. A. M., and has since failed and refused to rein- state them. Of these eight, all but Cox signed I. A. M. bargaining authorization cards'-? As to Allison, Sharman, and Mix, counsel for the Board stipulated that the respondent had no knowledge of any union membership or activity by them until the hearing. Of the remaining four, Richardson wore an I. A. M. button in the plant, and DeShazo passed out I. A. M. cards 28 Cox, Elsenius, DeShazo, Richardson, and Taylor were solicited by Goebel to join the Association. All but Cox'joined.' About the middle of February, DeShazo told Goebel that she did not,intend to pay dues in the Association any longer. There is no evidence as to the union affiliation or activity of the other persons on the burr bench. The lay- offs occurred at the peak of the I A. M.'s organizational drive. The I. A. M. was most active on the machine shop night shift, where the majority of the employees wore I. A. M. buttons. Of the burr bench employees, however, only Richardson wore, a button. As has been indicated heretofore, the burr bench employees were frequently assigned to machine operation when, for absenteeism or other reasons, extra help was needed on the machines. About February 12, Walters had a conversation with President Gilfillan, during which Gilfillan said that it might be necessary to run a somewhat smaller night shift. Gilfillan also asked Walters whether he had seen any "A. F. of L." buttons displayed in the plant. When Walters answered that he had paid no attention, Gilfillan said that if it was necessary to have a union to win the war, he was willing to have one ' , On the evening of February 22, 1943, Cramer informed Walters that the burr and rework night shift was to be discontinued, and that certain of those em- ployees were to be laid off. Walters asked Cramer if Richardson was among them. Cramer replied that the lay-offs would be in accordance with seniority. When Walters suggested that Richardson was a good worker, Cramer answered that "that was the set-up." He then turned over to Walters the employees' ' n Cox was asked on the night of February 22 to join the I. A. M. She promised that she would join on the next day. 28 Richardson, however, had a "heated" conversation with Roy Johnson about February 18, after Richardson began to wear her I . A M. button . Richardson testified that Johnson attempted to "convert" her. - 29 These findings are based on Walters' uncontradicted testimony, which is credited. 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pay checks and availability slips. Six of the employees, those having the greatest seniority, were transferred to the day shift, some to the burr bench, some to inspec±ion.30 Walters told the remainder that they were being laid off. When Richardson asked the reason, Walters told her "because of shortage of work and in accordance with seniority," and stated that they would be called back when work picked up. Richardson replied that that was not the reason, and pointed to her union button. ,During the latter weeks of ttiheir employment, Richardson, Taylor, Cox, and Elsenius, had been assigned to machine operation for substantial periods. The last 8 days of Elsenius' employment, and the last 6 of Taylor's were spent wholly on the drill presses. Richardson worked on the burr bench only 12% hours from February 4 to February 22. The remainder of that period she was on the milling machines and the drill presses. The respondent contended that the shift was abolished because of a lack of work. The shift has never been resumed. Vice-President Sparks, former General Foreman Hoenes, and Superintendent Cramer, testified that in February the amount of work available for the machine shop fell off due to lack of materials." The burr bench was selected for the cut, according to Sparks, because it was made up of inexperienced women employees. Sparks made the decision to abolish the shift ; Cramer determined which of the employees should be transferred. The respondent's. work records disclose that peak employment was reached about the middle of December, 1942. From an index of 100 at that time, It dropped to 90.4 during the week ending February 27, 1943. From that point it declined to a low of 80.4 on March 27. Thereafter, it climbed to 86.1 on May 22, dropped to 84 3 on June 12, and then rose to 90.7 on June 19.82 Nine additional employees who were classified as of the burr department had their employment terminated between February 23 and February 27 n Lucille Macbeth, assistant head of the personnel department, testified that as employment became available she attempted to contact by telephone the 30 The Association contract provided for the allocation of work according to,seniority. 31 Hoenes testified that he informed Sparks several times that work was extremely slack in the drill press and burr department, and that he had "a dickens of a time to keep people busy," while on the mills, automatics, and turret lathes there was ample help ; and that the burr department was "overloaded" with employees. Cramer testified that there was a shortage of materials prior to February 22, and that he discussed with Sparks the cutting down of-the force. 32 The testimony of Sparks, Hoenes and Walters indicates that the total amount of rework available has now fallen off because of a change in production policy, whereby defective work is now largely, returned to the department from which it originated, instead of being repaired in the rework department, as was formerly the case There is also credible testi- mony that the total amount of burr work available has also fallen off due to several factors : (1) performance of that work by outside contractors supplying finished parts to the re- spondent; and (2) a new process for burring has been developed which, to a large extent, eliminates the necessity for manual work These factors do not appear, however, to have become substantial by February 22. 13 A breakdown of the respondent's records reveal the following teiminations and hirings in the burr department after February 22 : February 27------------------ 9 April 17- ------- ------ 2 March 6------------------ 1 April 24---------------------- 1 March 20------------------ 2 May 1---------------------- 1 April 10------------------ 1 May 8---------------------- 2 Hirings March 13------------------ 2 April 24---------------------- 1 March 20------------------ 2 May 1---------------------- 2 March 27------------------ I 1 May 8----------------------- 1 GILFILLAN BROS., INC. 589 employees who were laid off on February 22; that some had no phones, and those she made no further effort to contact; that some had secured other em- ployment ; and that others she was unable to reach personally, but left word that there were jobs available. Macbeth's recollection was that she began to call these employees early in April. Sometime in June, Anna Cox received a call from the respondent informing her that there was a job available for her." Elsenius was called by Macbeth on May 31 and asked if she wanted a job. She replied that she was working. Allison returned to the plant 2 or 3 days after the lay-off and asked for work. She was told that she would be called when there was a job available. Approximately 2 weeks later, Macbeth called Allison and offered her a job on the day shift doing inspection work. Allison declined the day job and asked to be put on nights. Some time thereafter, Macbeth again called Allison and offered her a job on the night shift. Allison returned to work on May 14. About 2 weeks after the lay-off, Emma Ulrich, who was one of those laid off, applied for work, and was told that there was no opening. She returned again about a week later and was then put to work on the burr bench on the day shift. Richardson and DeShazo testified that they had not been informed of any telephone calls from the respondent. The contention of the Board was that the respondent abolished the entire night burr and rework shift in order to discourage 'union activity. However, the respondent's position that during January and February there was a shortage of materials, and a consequent reduction in the amount of work available, is supported by the evidence that during the early part of 1943, employment did fall off. If the respondent was intent on discouraging union activity, it is not evident why it should have selected the burr and rework employees for dis- criminatory treatment. Other than Richardson, no employee in the department wore an I. A. M. button, and only DeShazo engaged in any overt union activity ; whereas, among the night shift as a whole, the majority of the employees wore I. A. M. buttons. The Board's contention is therefore reduced to the proposition that the employees were discharged without regard to the union membership or activity of the group, or of the individual employees involved, in order to dis- courage such activity generally. The undersigned does not find that proposition persuasive. Were that the respondent's motive, it seems probable that all the employees on the shift would have been laid off. Instead, one third of them were transferred. Since the transferees were the senior employees, and since except for Richardson and DeShazo, evidence of open union activity among the whole group is totally absent, there is no basis for concluding that the retention of the transferees constituted a discriminatory selection. Similar considerations weigh against the inference that the respondent might have seized upon the falling off of work as a pretext for wholesale and unnecessary discharges. The testimony of Sparks, Cramer, and Hoenes, with respect to the reasons for the lay-offs, is therefore credited.' 94 Cos called at the plant in response to the notice and told Personnel Manager Nevins that she would require steady work because her husband was an invalid. Nevins replied that he could not guarantee the duration of the employment. 30 Leadman, Nelson left the respondent's employ on March 6, 11 days after the lay-offs. He had frequently borrowed Taylor and Elsenius for work on the drill presses. He testified that after February 22, he had "quite a bit to do", could have used the girls, and asked Cramer for additional help ; and that about a week later Cramer gave him three ex- perienced employees . Nelson's testimony is not necessarily inconsistent with the re- spondent's. Since a number of the burr employees were used at times on the machines, it IF understandable that some temporary dislocation might result from their lay-offs. That Nelson's shortbandedness was such a temporary condition is evident from ( 1) Walters' testimony that on the drill presses at the present time "we have just a few fellows work- ing" ; (2 ) the lead position left vacant by Nelson has not been filled. 559015-44-vol. 53-39 590 DECISIONS OF ; NATIONAL LABOR RELATIONS BOARD During the period from February 23 to May 14, 19 more persons were laid off in the burr department, while 9 were hired. Five of the latter 9 (including Ulrich) were hired during March, and before Macbeth began, according to her testimony, to recall those who had been laid off. Twelve of the 19 separations also occurred during that period. No explanation was offered by the respondent as to why the laid-off employees were not offered the 4 vacancies. Ordinarily, that fact might suggest that the failure to recall was discriminatory. However, during the same period, Ulrich and Allison, the only 2 who returned and asked for re-employment, had been offered it. The undersigned views the failure to recall any of the laid-off group during March as negativing the probability that discrimination was being practiced against those whose union affiliations the respondent may be presumed to have known, namely Richardson and DeShazo. The offers of re-employment to Ulrich and Allison negative the inference that the failure to recall during March was a mass discrimination. For these reasons, and because of the absence of evidence of substantial union activity among the group as a whole, the undersigned is not persuaded that the failure to recall was discriminatory. The undersigned therefore concludes and finds that there is no substantial evidence to support the allegation that the lay-offs of February 22 were intended to discourage union activity, or that the respondent has failed and refused to reinstate any of the employees. It will be recommended that that allegation be dismissed. There is no evidence to support the allegations of the complaint that the respondent made derogatory and uncomplimentary statements to employees regarding the I. A. M.; or referred to members and officials of the I. A. M. as racketeers and undesirable foreigners ; and no substantial evidence to support the allegations that the respondent stated to employees that union membership would not serve to better their wages or conditions of employment, but would in fact render such conditions less favorable; threatened to cancel smoking and other privileges and to reduce or eliminate overtime work.; or denied the use of company bulletin boards to the I. A. M. while permitting their use by the Association. The undersigned will recommend that those allegations also be dismissed. 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 obstructing commerce and the free flow of commerce. v. THE REd1 EDY Having found that the respondent has engaged ,in unfair labor practices, the undersigned will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. ° The undersigned has found that the respondent has dominated and Interfered with the formation and administration of, and has contributed support to, the Association. The effect and consequences of the respondent 's domination of, interference with, and support of the Association, as well as the continuing recognition of the Association as the bargaining representative of its em- ployees, constitute a continuing obstacle to the free'exercise by the respondent' employees of the rights guaranteed to them in the Act. Because pf the respond- GILFILLAN BROS., INC. 591 ent's illegal conduct with regard to the Association, that organization is incapable of serving the respondent's employees as a genuine collective bargaining agency. Accordingly, the undersigned will recommend that the respondent disestablish and withdraw all recognition from the Association as representative of any of the respondent's employees for the purpose of dealing with the respondent con- cerning grievances, labor disputes, wages, rates of pay, hours of employment or other conditions of employment. The contract effective May 1, 1943, between the respondent and the Association, embodies recognition of that organization as ,exclusive bargaining representative of the respondent's employees. Since such contract represents the fruit of the respondent's unfair labor practices, the undersigned will recommend that the respondent cease giving effect to it or to any other existing contract between it and the Association or to any modifica- tion or extension thereof. Nothing in these recommendations, however, shall be construed as requiring the respondent to vary its wage, hour, and other sub- stantive features of its relations with its employees which the respondent may have established in conformity with such contracts, as extended, renewed, modi- fied, supplemented or superseded. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. International Association of Machinists, District Lodges Nos. 94 and 311, and Gilfillan Employees Mutual 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 Gilfillan Employees Mutual Association, and contributing support 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 interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 5. The respondent has not engaged in unfair labor practices within the mean- ing of Section 8 (3) of the Act. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusiops of law, the under- signed recommends that the respondent, Gilfillan Bros., Inc., its officers, agents, successors and assigns shall : 1. Cease and desist from : (a) In any manner dominating or interfering with the administration of Gilfillan Employees Mutual Association, or with the formation or administration of any other labor organization of its employees, and from contributing support t hereto ; (b) Recognizing Gilfillan Employees Mutual Association as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment ; (c) Giving effect to the contract of May 1, 1943, with Gilfillan Employees Mutual Association, or to any modification, extension, or renewal thereof; 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) 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 collec- tive bargaining, or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : (a) Withdraw all recognition from Gilfillan Employees Mutual Association, and completely disestablish that organization as the representative of any of the respondent's 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) Post immediately in conspicuous places in its plant in Los Angeles, Cali- fornia, 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 recommended that it cease and desist in paragraph , 1 (a), (b), (c ), and (d ) hereof ; and' (2 ) that the respondent will take the affirmative action set forth in paragraph 2 (a) hereof; (c) Notify the Regional Director for the Twenty-first Region in writing within ten (10 ) days from the date 'of receipt of this Intermediate Report, what steps the respondent has taken to comply herewith. It is further recommended that the complaint be dismissed insofar at it alleges that the respondent : violated Section 8 (3) of the Act: made derogatory and uncomplimentary statements to employees regarding the I . A. M.; referred to members and officials of the I. A. M. as racketeers and undesirable foreigners; stated to employees that union membership would not serve to better their wages or conditions of employment, but would in fact render such conditions less favorable ; threatened to cancel smoking and other privileges and to reduce or eliminate overtime work ; or denied the use of company bulletin boards to the I. A. M. while permitting their use by the Association. It is further recommended that unless on or before ten (10 ) days from the receipt of this Intermediate Report,'the respondent notifies said Regional Direc- tor 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, Rochambeau Building, Washing- ton, 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. CHARLES W. SCHNEIDEB, Trial Examiner. Dated September 11, 1943.'