Simmons Co.

In the Matter of SIMliroNs COMPANY, A CORPORATION and ADOLPH J. ZURGA Case No. 2-C-4886.Decided December 29, 1943 DECISION AND ORDER On September 13, 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, ana recommending that it cease and desist from the unfair labor practices found 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 support- ing brief; Adolph J. Zurga, upon leave granted by the Board, filed an answering brief. Oral argument in which the respondent, Zurga, and Simmons Elizabeth Employees' Union, Inc., an unaffiliated labor organization, herein called the Union,' participated, was-bad before the Board at Washington, D. C., on October 28, 1943. The Board has considered the rulings of the Trial Examiner at the hearing and finds that no prejudicial errors were committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the respondent's brief and exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the exceptions, additions, and qualifications noted below : 1. The Trial Examiner found, as part of the background, that the respondent assisted the Union in various ways. We concur in these findings, but we do not agree, on the basis of the record, that the respondent's assistance to the Union included the granting of per- mission to the Union to use its bulletin boards and the payment to employees, on one occasion, for time spent at a meeting of the Union. The Trial Examiner's findings in these respects are hereby reversed. 'At the oral argument, the Union, although not theretofore a party to the proceeding, requested and was permitted to intervene as amicus curiae. 54 N. L. R. B., No. 24. 130 SIMMONS COMPANY 131 2. We agree with the Trial Examiner that Zurga was discharged because of his union and other concerted activities. For several years prior to January 23, 1942, Zurga was the most active champion of the demands of the Union and the most vigorous opponent of the positions of the respondent. Zurga's militancy in behalf of the Union manifested itself in his criticism of those union leaders who, he thought, were not acting in the best interests of the members, and in his acceptance and effective handling of many offices in the Union .2 When Zurga's leadership in the Union terminated, he lost little time in engaging in further union activities. He became chairman of the Simmons Organizing Committee and was outstand- ingly active in a vigorous C. I. O. organizational campaign conducted at the respondent's plant from the early part of March until the consent election of May 12, 1942. After the C. I. O. had lost the consent election to the Union, Zurga, though less prominent in the C. I. O.'s behalf, maintained his interest therein and told the re- spondent's employees that the C. I. O. was coming back to the plant. He also continued his efforts in advancing the welfare of the respond- ent's employees through self-organization and collective bargaining. Thus, on August 30 and September 15 he attended meetings of the Union, raised strenuous opposition to the terms of a proposed contract between the Union and the respondent, and objected to the methods being used by the Negotiating Committee to effect ratification of the document. ' His efforts resulted in the elimination of the swing shift provision from the contract and in a vote by the membership post- poning action on the contract until.a general membership meeting could be convened on September 20 for that purpose. No such meet- ing was held. Nevertheless the contract was signed; and Zurga's union activity was thereupon interrupted by his abrupt discharge on September 24. The respondent was well aware of Zurga's union and concerted activity. Zurga met frequently with the respondent while serving on various committees of the Union, and the respondent admitted that he was "quite active" and "very efficient" as a member of the Union's Board of Trustees and as chairman of its Grievance Committee. The respondent admittedly knew of Zurga's very active part in the vigorous 2 Particularly noteworthy in this respect are ( 1) the incident in March 1941 in which Zurga , then a member of the Guevance Committee, charged that committee with "negli- gence" in the performance of its duties and upbraided , the chairman for not supporting him in pressing a 6 months old grievance before the respondent, and (2 ) the occasion on May 27, 19 41, in which he charged the president of the Union with "poor leadership and negligence" and requested his resignation . The first incident eventuated in the resignation of-the Grievance Committee and the appointment of a new Grievance Committee with Zurga as chairman ; while the second incident resulted in the president 's resignation and in Zurga s election as vice president of the Union and chairman of its first Negotiating Committee. 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. I. 0. organizational campaign. As found by the Trial Examiner, the respondent also knew of the role'he played in effecting the resigna- tion in 1941 of the Union's Grievance Committee and of the Union's president; was apprised of the fact that the refusal of the Union to ratify the proposed 1942 contract, when it was first presented, was due to Zurga's opposition; 3 and was aware of his intention to renew his organizational efforts on behalf of the C. I. 0. following the May 12 election 4 It is clear that Zurga's activity in the Union, the organization favored by the respondent to represent the greatest proportion of its employees, and his activity in behalf of the C. I. 0. were opposed by the respondent : the former, because it interfered with the Union's tractability; and the latter, because it menaced the Union's very exist- ence. Thus, in July 1941, Zurga's activity evoked concededly un- founded charges 5 against him by the respondent. At that time, Ham- ilton made apparent the respondent's resentment towards Zurga, by stating to him in the presence of the Grievance Committee, of which he was the chairman, "I don't have anything on you this time . . . but if ever I do, I will get you no matter how long it takes." The respond- ent resented the time spent by Zurga on grievances. This is implicit in Work Manager Chaffe's statement that he had "checked the records of previous delegates or trustees and compared the record," and that ever since Zurga had become chairman of the Grievance Committee "the amount of hours put in for trustees' work went up high." This antip- a we agree with the Trial Examiner that, in view of the frequent meetings between the Board of Trustees , as well as the Grievance Committee of the Union , and the respondent, "realistic appraisal of human conduct warrants the finding that the changes and the rea- sons therefor were discussed by the committee and the trustees with the respondent " Moreover, we regard as material in this respect the testimony of Gilroy , manager of the respondent's Atlantic Division , that "in meetings with the trustees they don't always tell you what is going on but you sense they might be having trouble " In addition , the exist- ence of a close relationship between the Union and the respondent is implicit in Division Superintendent Coyle's reference to the' Grievance Committee on the day of Zurga's dis- charge , as "our Grievance Committee " ; in the respondent's ready release on the same day to employee Souza , chairman of the Grievance Committee , of the future production sched- ule, although Hamilton, assistant superintendent of the plant , testified that the various departmental superintendents had only an idea of production in their respective depart- ments, and in Personnel Manager wiltse's admission to Zurga in June 1942 , in answer to the latter's charge that the respondent had discriminated against him by not selecting him for vocational school , that his name had been considered several times and the Union had opposed sending him to school. 4 Like the Trial Examiner , we are of the opinion that such an inference is warranted by the record Thus, it is established by the ciedible testimony of Zurga that , during his conversation with Wiltse in June 1942 , ielative to his being sent to vocational school, Wiltse asked him whether he had settled down , explained further that he had reference to the "trouble" with the C. I 0 , and inquired whether Zurga thought that the C I O. "will come back in here " In addition, in view of the close collaboration between the Union and the respondent, it is reasonable to conclude , as we do, that the respondent was in- formed of the fact that members of the Union Negotiating Committee had impugned Zurga's motives in opposing the contract at the August 30 and September 15 meetings of the Union and had charged him with favoring the C L.0. and with seeking to weaken and divide the Union so that he could eventually get the C. I 0 into the plant 5 He was charged with the use of abusive language and unauthorized roaming about a department. SIMMONS COMPANY 133 athy toward Zurga continued apace after the C. I. O.'s loss of the consent election in May 1942. It was revealed most significantly in the initial by-passing of Zurga on the matter of sending him to vocational school; in Superintendent Frank Adam's warning on August 24 to Zurga, who was then newly assigned to his department, that "things [were] different" in his department from what they were "on the other side" in the mattress department, that there must be "no trouble," and that Zurga would have to behave himself; in Foreman Willig's state- ment to employee Marcel during the latter's conversation with Zurga on September 5 that "You are not allowed to talk to this fellow [Zurga]"; 6 in Foreman Tucker's remarks to Zurga on September 21, on the occasion of the latter's transfer to the cross-stitch department, that "things [were] a lot different" from what they had been, and that Tucker "wasn't going to stand for any monkey shines" ; and in the action of Tucker on September 22 in ordering Zurga to go home when one of his machines broke down, thereby ignoring the practice of allowing an employee to continue with one machine while the other was being repaired.7 Significantly, Zurga's "discharge' on • September 24, 1942, occurred shortly after his renewed activity in the Union had resulted in further interference with the Union's tractability, and had caused certain members of the Union Negotiating Committee to charge openly that Zurga was motivated by a desire to bring the C. I. O. into the plant. The respondent's contention at the hearing before the Trial Examiner that it discharged Zurga for several reasons including that of spreading false rumors is not supported by the evidence. It is clear, and we find, as did the Trial Examiner, that only the rumor incident was con- sidered by the respondent at the time of the discharge." Moreover, in our view of the case, we find it unnecessary to resolve the conflict in the testimony as to whether or not Zurga was spreading or circulating false rumors prior to his discharge. It is our opinion , and we find, 8 This incident occurred 6 days after Zurga had announced his opposition to the ratifica- tion of the proposed contract between the Umon^and the respondent. Indeed, Tucker was subsequently ordered by Division Superintendent Coyle to return Zurga to work on one machine , after the latter had complained to Coyle. 8 In making this finding, we have considered the matters set forth in the Intermediate Report, the testimony of Division Superintendent Coyle that the rumor incident was the sole cause of the discharge, and Personnel Manager Wiltse's testimony that only after the discharge did he learn of the down time incidents relied upon by the respondent to support one of its asserted reasons for the discharge Even assuming arquendo that the other reasons were considered by the respondent, we are convinced , and we find , that they are patently lacking in merit Their insignificance stems first from the respondent 's failure to make those reasons known to Zurga at the time of his discharge ; secondly, from the fact that, although Hamilton testified that after each of the incidents upon which these asserted reasons are founded the respondent decided not to discharge him but to give him another chance, it is nevertheless true that the re- spondent was curiously secretive above having given Zurga another chance , and at no time was Zurga admonished or told that he was being given another chance ; and thirdly, from the respondent's position at the hearing that none of these reasons standing along caused the discha, ge. 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that, even assuming the occurrence of the rumor incident, as urged by the respondent, it did not constitute the basis for discharging him and thereafter refusing to reinstate him. That this is so, is made strikingly apparent by Hamilton's testimony that "We don't just discharge employees for passing a rumor from one employee to another .. . when someone causes a disturbance in the entire department and there happen to be other incidents in connection with the rumor then it is time to think the situation over in its entirety." Indeed, by its partial, superficial, and inadequate investigation of the rumor incident, the respondent demonstrated that it was concerned only with the mere formality of establishing a record rather than with an attempt to deter- mine whether Zurga had been guilty of circulating false rumors. In the light of all the facts, we are convinced, and we find, that the rumor incident was seized upon by the respondent as a convenient pre- text for the discharge, and that the respondent was in fact motivated by its determination to rid itself of an employee who had trenched upon its favorable relations with the union in disregard of its desires, and whose persistent efforts might have resulted in the replacement of the tractable Union by the C. 1. 0. We find, upon the entire record, that, by discharging Zurga, the respondent has discriminated against him in regard to hire and tenure of employment, thereby discouraging membership in the C. I.O. and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. ORDER- Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Simmons Company, a cor- poration, Elizabeth, New Jersey, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in United Furniture Workers' of America, affiliated with the Congress of Industrial Organizations, or in any other labor organization of its employees, by discharging or refusing to reinstate any of its employees, or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of their employment; (b) 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 activi- ties, for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. SIMMONS COMPANY 135 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer Adolph J. Zurga immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority and other rights and privileges; (b) Make whole adolph J. Zurga for any loss of pay he has suffered by reason of the respondent's discrimination against him, by payment to him of a sum of money equal to the amount which he normally would have earned as wages from the date of his discharge to the date of the respondent's offer of reinstatement, less his net earnings during said period; . (c) Post immediately in conspicuous places in the respondent's plant at Elizabeth, New Jersey, 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) and (b) of this Order; (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a) and (b) of this Order; and (3) that the respondent's employees are free to become and remain members of United Furniture Workers of America, affiliated with the Congress of Industrial Organizations, or of any other labor organi- zation, and that the respondent will not discriminate against any employee because of his membership or activity in that or in any other labor organization; (d) 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. John J. Cuneo, for the Board. Mr. Raymond E. Hackett, of Stamford, Conn., and Mr. Jerry F. Hanak, of Kenosha, Wis., for the respondent. Mr. Harry Weinstock, by Mr. Reuben Turetsky, ' of counsel, ' of New York, N. Y., for Adolph J. Zurga. STATEMENT OF THE CASE Upon a charge duly filed on September 28, 1942, by Adolph J. Zurga, the National Labor Relations Board, herein called the Board, by the Regional Di- rector for the Second Region (New York City), issued its complaint dated June 9, 1943, against Simmons Company, a corporation, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor 'Although this name is spelled Turretsky in the record, and no correction was made therein, the Trial Examiner as informed by counsel at the hearing that the correct spelling of his name was Turetsky , and his name is so spelled in the brief filed by him on behalf of Zurga. 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD practices affecting commerce within the meaning of Section 8 (1). 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 respondent and Adolph J. Zurga. With respect to the unfair labor practices, the complaint alleged, in sub- stance, that the respondent: (1) from on or about March 1941, to the date of the complaint, urged, persuaded, threatened, and warned its employees to refrain from membership in and activity on behalf of United Furniture Work- ers of America, C. I. 0., herein called, the C. I. 0.,,and' to refrain from engaging in concerted activities for the purpose of collective bargaining or other mutual aid and protection; and (2) on September 24, 1942, discharged and thereafter refused to reinstate Adolph J. Zurga because he joined and assisted the C. I..0., "and/or engaged in other concerted activities for the purpose of collective bar- gaining or other mutual aid and protection, and/or because on or about August 30, 1942, indicated his opposition to the activities of Simmons Elizabeth Em- ployees' Union, Inc.," herein called the Union In its answer dated June 14, 1943, the respondent admitted the allegations of the complaint as to the nature of its business but denied that it had engaged in any unfair labor practice. Pursuant to notice, a hearing was held from June 28 through July 2 and from July 6 through July 10, 1943, before the undersigned, the Trial Examiner duly designated by the Chief Trial Examiner. The Board, the respondent, and the complainant were represented by counsel and participated in the hearing. All parties were afforded full opportunity to be'hetird,•to examine a1ii cross.examine witnesses, and to introduce evidence bearing on the issues At the close of the hearing, a motion by the Board to conform the complaint to the proof as to dates, spellings, and similar formal matters was granted without objection. The parties, upon request of the undersigned, argued orally before him. They were also given an opportunity to file briefs with him and the respondent and the charging party each filed one. Upon the record thus made and from his observation of the witnesses, the- undersigned makes the following: - I FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent is a Delaware corporation having an executive office in New York City. It has a plant at Elizabeth , New Jersey, which is the only plant in- volved in this proceeding. It is engaged there in the manufacture , sale, and dis- tribution of mattresses,,springs, =sleeping . surfaces, -gas. engines , parachutes, shells, and related products. Between 80 and 85 percent of its products are manufac- tured for the United States Government . During the period from about June 1, 1942, to June 1, 1943 , the respondent, in the conduct of the business at its Eliza- beth plant , purchased raw materials valued at more than $1,000,000. Approx- imately 75 percent of these materials came from points outside of the State of New Jersey. During this same period , the respondent manufactured more than $1,000,000 worth of finished products at its Elizabeth plant. Approximately 75 percent of these products were shipped to places outside of the State of New Jersey. The respondent concedes that it is engaged in commerce within the meaning of the Act at its Elizabeth plant It presently employs about 1200 persons there. II. THE ORGANIZATIONS INVOLVED Simmons Co-operative Union, unaffiliated, was a labor organization within the meaning of the Act and admitted to membership employees of the respondent. SIMMONS COMPANY 137 , Simmons Elizabeth Employees' Union, Inc., unaffiliated, and United Furniture Workers of America, affiliated with the Congress of Industrial Organizations, are labor organizations within the meaning of the Act and admit to membership employees of the respondent. M. THE UNFAIR LABOR PRACTICES A. Background The Union was organized at the respondent's plant sometime in June 1937. Although the respondent claims that it favors no labor organization, it has assisted the Union in various ways. For example, it has permitted the Union to use its bulletin boards for the posting of various notices. Furthermore, its fore- men have given employees notices of meetings of the Union. The collection of dues on behalf of the Union, in the plant, during working hours, has been per- mitted. Employees have been allowed time off to attend the Union's meetings and have been paid for the time so spent on one occasion. Further, the respond- ent has permitted the Union to participate in the selection of some employees who were to be sent by it to a training school. As z1hown hereinafter, the respondent has allowed the Union to distribute its literature in the respondent's plant, but has refused that privilege to the C. I. O. B. Interference, restraint and coercton• About-April 10, 1941, the Board of Trustees of the Union, which was composed of departmental respresentatives of the respondent's employees, met with rep- resentatives of the respondent to discuss a new contract. Norman Thomas Gil- roy, then manager of the respondent's Atlantic division and the highest official at its Elizabeth plant, said, according to Zurga's testimony, that he "did not see where" the Union was serious in presenting its wage demand for a 10 percent general increase Zurga, whose discharge is hereinafter discussed and who was one of the Union's trustees, said that if the Union "did not get anything, it might be a good idea to get an outside organization." Gilroy replied that he saw no reason why the respondent should have any "trouble" with any outside organ- ization, since it had been' having good labor relations with its employees for a period of years. He said, further, that they were "one happy family" and that the respondent would do everything it could to "keep it so." 2 During the second or third week of March 1942, while a C. I. 0 organizational campaign hereinafter referred to, was in progress, Peter Albert Willig, the fore- man in the border room of the mattress division at the respondent's Elizabeth plant,' asked Zurga if he thought the C. I. O. had a chance to get into the plant. Zurga replied in the affirmative. Willig then said that he did not see why there was a desire to make any change since he thought that the independent union was "doing pretty good." ` The respondent had a rule prohibiting any union activity on company time or property, except for the holding of conferences with management. In the contract 2 Gilroy testified that he -did not remember making these statements, although he ad- mitted that he might have done so. Zurga was a vei y frank witness, he appeared to be unusually honest, and the undersigned was especially impressed with his trustworthiness. The undersigned credits Zurga upon whose testimony these findings are based ? According to the testimony of Gilroy, the work of the foremen in general was entirely supervisory and they were considered "a part of management" The undersigned finds that Willig was a supervisory employee for whose conduct the respondent is responsible. " Willig did not deny that he had this conversation with Zurga. He merely testified that he did not recall any special conversation with Zurga about the C. I O. The undersigned credits Zurga , on whose testimony these findings are based. 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of July 1, 1942, between the Union and the respondent, the Union agreed to abide by this rule, and the employer agreed to discourage, without discrimination, organizing activity of any kind on its time or property by any group or organiza- tion, including the Union. Gilroy testified that this section of the contract was directed at the International Association of Machinists at the Elizabeth plant, since there was considerable friction between the Union and the I. A. M on the matter of jurisdictional rights He also testified that the respondent's policy was to discourage union activity at all times on the company property. One morning, about a week prior to a consent election conducted by the Board on May 12, 1942, Zurga had been distributing C. I. O. literature in the plant before he went to work. After Zurga had begun his work,` Foreman Willig went to see him at his machine and told him that an order had been received that no more of "these" pamphlets were to be distributed. Zurga asked Willig if the rule against distribution of literature applied generally or only to Zurga. Willig asked what he meant and Zurga called Willig's attention to the fact that pamphlets of the Union were at that very moment being distributed a short distance from them by Ernest Williams' Willig said he knew nothing about Williams. Zurga saw Williams continue to distribute the Union's literature outside of the latter's own department for about an hour after Zurga had been warned by Willig.' At ap- proximately the same time that Willig spoke to Zurga, Salvatore Scurese, then a foreman in the respondent's coil spring department, came to the conveyor belt at which John L. Grondin and -Edward Forster, both members of the Simmons Organizing Committee, and others were working., Grondin testified that Scurese said, "If you fellows are caught giving out any more CIO pamphlets, you will find yourselves outside looking in," while Forster testified that Scurese said, "You fellows better watch your step, or you are going to find yourselves on the outside looking in." Grondin also testified that during the pre-election campaign he saw literature of the Union distributed in the plant, and that he had never heard that any objection had been made to such distribution. This testimony was undenied. The undersigned has found that the respondent , through supervisory em- ployees, told some of its employees that it saw no reason why it should have "trouble" with an outside union, that they were "one happy family" and that the respondent would do all it could to "keep it so,", and that it told another employee that it saw no reason why there was a desire to make any change in collective bargaining representatives since the independent union was "doing pretty good." It has also been found that the respondent had a general rule against union activities at its plant even on the employees ' own time ; that it had, through some of its foremen, refused to permit the C. I. O. to distribute union literature on company premises while permitting such distribution by the Union; and that it had warned employees that they would be discharged if they were caught distributing any more C. I. O. pamphlets. The undersigned, there- fore, finds that by these statements and threats , by the adoption of a general rule against union activity on its property , and by the discriminatory enforce- ment of a rule against the distribution of union literature on its premises," the respondent has interfered with, restrained , and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 6 Zurga was the chairman of the Simmons Organizing Committee, which was conducting the pre-election campaign for the C I 0 " Zurga was, later that morning, given one of these pamphlets by Williams. 7 Willig did not deny that he told Zurga to stop distributing literature . He merely testi- fied that he did not recall doing so. The undersigned credits Zurga on whose testimony these findings are based. " Matter of Tabsn-Picker & Co . and International Ladies' Garment Workers' Union (Ameri- can Federation of Labor ), 50 N. L. R; B. 928 , and Matter of United Steel Fabricators, Inc. (Wooster, Ohio ) and International Association of Machinists (A. F. L.) and Independent Metal Workers Union, 50 N . L. R._B. 752. SIMMONS COMPANY C. The discharge of Zurga 1. Zurga's union activities 139 About the middle of 1938, at a general membership meeting of the Union called to discuss a new contract with the respondent, Zurga pointed out that the previous contract had not been signed and that the vacation promised in that agreement had not been granted. He recommended that the Union demand a signed contract and charged that the Board of Trustees were "yes men." As a result of these remarks, Zurga was made a member of a committee to confer with the respondent concerning vacations. In January 1939, Zurga became a member of the Union's Board of Trustees and retained that position until January 23, 1942. While he was a member of that Board, he became its spokesman, the most active champion of the demands of the Union, and the most vigorous opponent of the positions of the respondent.' In March 1941, Zurga was appointed to the Union's Grievance Committee. He soon discovered a long standing grievance9 which had been previously discussed with the management on several occasions, without avail. At a meeting be- tween the Grievance Committee and Walter Edward Hamilton, who was then known as a conciliator for the respondent, this grievance was brought up for discussion. Hamilton said he could do nothing about it because it was too old. Zurga then took up the discussion with Hamilton and a "stormy session" ensued between them. None of the members of the committee supported Zurga. The next day, at the request of Zurga, a meeting of the Board of Trustees was held. Zurga charged the Grievance Committee with "negligence" in the performance of its duties and complained particularly that the chairman did not support him. The committee thereupon resigned and a new one, of which Zurga was made chairman, was appointed. Soon thereafter the new committee obtained a favorable settlement of the grievance which resulted in the payment to the employee of about $200. Zurga continued' to be chairman of this committee until January 23, 1942. During the period of his chairmanship he presented about 100 grievances to the respondent, approximately half of which were at least 6 months old. Ultimately Zurga, at the respondent's suggestion, became a one-man Grievance Committee and toward the end of his service on the com- 'mittee spent all of his time adjusting grievances. On various occasions,, while Zurga was chairman of the Grievance Committee, Hamilton and William H. Chaffe 1° complained to Zurga that he was spending too much time on grievances. Chaffe once said that he had "checked the records of previous delegates or trus- tees, and compared the record," and that, ever since Zurga had become chairman of the Grievance Committee, "the amount of hours put in for trustees' work went up high." At one time, Hamilton told Zurga that he did not believe Zurga should be paid time and a half for overtime work on grievances. To this sug- gestion Zurga replied that, as long as there were grievances, they would have to be taken care of. About May 22 or 23, 1941, at a general meeting of the Union, Zurga read the respondent's counterproposal to a demand of the Union for a wage increase, and informed the members of the respondent's refusal to take seriously the Union's demand for a 10 percent raise. He told them that if they expected their negoti- 0 This grievance concerned a failure of the respondent to pay an employee the established rate of pay for her operation and was 6 months old. 10 From May 1, 1941, until August 15, 1941, Hamilton was the respondent's Assistant Plant Superintendent and also handled labor relations Since May 1, 1941, Chaffe, as Works Manager for the respondent at its Elizabeth plant, has held the second highest managerial position, and has been in full control of production there. 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ators to get anything for them from management they would have to give the negotiators "a big stick." Further, he submitted for discussion the question whether a strike vote should be taken. It was decided to take such a vote, and it was taken on May 20, under the auspices of the Labor Relations Committee of the Mayor of Elizabeth. Ninety percent of those voting favored a strike, and -the respondent was thereafter notified of the result by letter from the secretary of the Union. The strike never materialized, and on June 2 the Union and the respondent resumed negotiations at which Zurga presented the Union's proposals and was the principal spokesman for the Union. On May 27, 1941, at a meeting of the Union's Board of Trustees, Zurga charged George E. Casler, president of the Union, with "poor leadership and negi-gence" and requested that he resign. He did so. At this meeting, Zurga NA as elected vice president of the Union and chairman of its first Negotiating Cormnittee.11 On January 23, 1942, the Union's Board of Trustees, including Zurga, resigned from all offices held by them in the Union because the members of the Union would not support their demand for an increase in dues with which to carry out the Union's expanded program. Early in February 1942, Zurga, on behalf of himself and several members of the "former" Board of Trustees, telephoned the C. I. O. headquarters.12 As a result of this telephone conversation a meeting was held, the Simmons Organiz- ing Committee, of which Zurga was made chairman, was created, and a vigorous. C. I. O. organizational campaign, in which Zurga took the most active part, was carried on at the respondent's plant from the early part of March 1942 until the consent election was held May 12, 1942.13 He distributed many C. I. O. pam- phlets 14 both outside and inside the respondent's plant, some of which he dis- tributed during working hours ; he assisted in the holding of C. I O. meetings outside the plant; throughout the campaign he wore C. I O. buttons conspicu- ously displayed on his work clothes; he solicited about 100 of the respondent's employees on behalf of the C. I. O. and obtained about 50 signatures to its application cards, one of which he also signed.16 Some of the soliciting and signing was done on the respondent's property, but none of it was done on company time. Zurga ceased to be prominent in,union activities from the time of the holding of the election on May 12, 1942, until about August 30, 1942, though during that period he told employees of the respondent that the C. I. O. was coming back to the plant.'6 On that day, at a general membership meeting, Charles Holste, a member of the Union's Negotiating. Committee, read and commended "Prior to this time the Board of Trustees had been the Union's bargaining agency. -Zurga in 1941 was also chairman of the Union's Grievance and Safety, Health, and Sanita- tion Committees and a member of its two-man Organizational Committee. 12 In 1939, Zurga, on behalf of the respondent's employees, had investigated the possibil- ity of a C I 0 organizational campaign at the respondent's plant, but the undertaking "fizzled out." Zurga also tallied to the C. I 0. representatives in 1940 and 1941 about organizing the' respondent's plant. There is no evidence that the respondent knew' of these organizational efforts of Zurga. "The Union won this election • 641 voted for the Union, 230 for the C. I 0 , 76 for the American Federation of Labor, and 3 for no union 14 Names of members of the Simmons Organizing Committee,, including Zurga' s, appeared on many of the pamphlets 15 The signing "was contingent upon whether or not the Local would be established," and no dues were paid. 16 This finding is based in part upon the testimony of Helen Schindler Levy, one of the respondent's employees, who, in answer to the question whether Zurga had not said he would "get the C. I 0 in," replied, "Yes, I heard him say that the C. I. 0 was going to come back in again, but he didn't say it directly to me " SIMMONS COMPANY 141 the new contract which had been agreed upon by the Union and the respondent, and told the members that they should have enough confidence in the committee to back it and accept the contract. A motion to accept the contract was made. At that point Zurga took the floor. He objected to the proposed wage scale and to the seniority and swing-shift provisions, the latter of which would have eliminated overtime. He also took issue with Holste as to his statement that the contract contained the Little Steel formula. Holste challenged Zurga's state- ments and said that he knew that Zurga still favored the C. I. 0., that he did not have his "feelings for the people in the plant," and that all he "was worrying about was to disrupt them as much as possible" so that he could eventually get the C. I. O. back into the plant. Zurga moved that the contract should be renegotiated with management and that thereafter there should be another full membership meeting to consider ratification of the contract. He supported his motion by the point that there had previously been no general membership meet- ings to consider the contract, as had formerly been the practice, and that, there- fore, the members should not be expected to ratify the contract at that time. Though no one else spoke in favor of Zurga's motion, all of the members except the negotiators supported it. On September 15, a meeting was held at the Union headquarters for em- ployees in the shell department. They were told that, though the committee could not get a better wage rate, the management had agreed to eliminate the swing shift from the proposed contract. Again, Zurga opposed the ratification of the contract on the ground that the meeting had been confined to the employees in the shell department. He moved that a general membership meeting be held the following Sunday, so that all members of the Union could have a voice in the ratification or rejection of the contract. Jesse Souza, a member of the Union's Negotiating Committee, said that the only reason Zurga wanted a meeting of the full membership was to show the weakness of the Union and to have it divided so that he "could get the CIO in again." Holste added that Zurga seemed to be doing all the talking and that he could understand Zurga's purpose. When Zurga asked him what he meant, Holste replied, "You know ; you are still working for the CIO, and you are trying to get them to take over." When Zurga's motion for a general meeting was put to a vote, all of those present except the, negotiators voted for it. Notwithstanding this vote, the contract was signed soon thereafter by representatives of the Union without the holding of any further meeting. The respondent knew that Zurga had been active on behalf of the C. I. O. in 1942 Gilroy testified that he knew that the C. I. O. was carrying on a campaign during March, April, and May, 1942, through an organizing committee; that he knew the men who were identified with the campaign, and that he saw Zurga in front of the plant handing out C. I O. circulars Virgil J Wiltse, the respondent's personnel manager,'' testified that he knew Zurga's name was on C I. 0 circulars which were passed out during this campaign, and that he saw Zurga outside the plant assisting in the setting up of a public address system in connection with the organizing activities. It has already been noted that Zurga wore C I. O. buttons on his work clothes during the campaign. It was known to several of the respondent's employees, including some members of the Union's Negotiating Committee, that, even after the May 1942 election, Zurga still indicated his intention of organizing the plant for the C. I. O. Upon the basis of the foregoing facts and upon the entire record, the under- 17 Wiltse, since August 1, 1941, has been the respondent's personnel manager and has handled labor relations . He has authority to hire generally and can discharge clerical employees in the personnel office. 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD signed is convinced and finds that the respondent knew of Zurga's intention to renew his organizational efforts on behalf of the C. I. 0. following the May 12, 1942 election. That the respondent knew of Zurga's connection with, and activities on behalf of, the Union as a member , trustee, and member and chairman of the Grievance Committee , cannot be questioned , in view of his frequent contact with officials' of the respondent Hamilton admitted in his testimony that he recognized that Zurga was "quite active" and "very efficient." as a member of the Union 's Board of Trustees and chairman of its Grievance Committee . While there is no direct evidence that the respondent knew of the role which Zurga played in connection with the resignation of the Union's Grievance Committee and of its president in 1941, it had frequent conferences with the Committee , as well as with the Board of Trustees, one of whose members was always the Union's president, and realistic appraisal of human conduct warrants the inference that the changes in the presidency and in the membership of the Grievance Committee and the reasons therefor were discussed by the Committee and the Trustees with the respondent. It is equally true that, although there is no direct evidence establishing that the respondent knew that the refusal of the Union to ratify the proposed 1942 contract, when it was first presented , was due to Zurga's strenuous opposition , again the inference is warranted that this situation was discussed by members of the Negotiating Committee with officials of the respond- ent during the course of the renegotiation of the contract , and that they were informed of Zurga 's activities at the August and September , 1942, Union meetings. Therefore, the undersigned finds, upon the basis of the foregoing facts and upon the entire record, that the respondent knew that Zurga was responsible for the resignation of the respondent' s president and Grievance Committee in 1941 and that it likewise knew of Zurga's effective opposition to the 1942 contract. 2. Threat of discharge and discriminatory treatment of Zurga About the end of July 1941, Fred Lindsley, shift superintendent in the shell department , who was in full charge of operations during his shift, asked Zurga why he was roaming around Lindsley 's department. According to Lindsley, Zurga thereupon used abusive language to him as well as to Robert B. Post, superintendent of the mattress division. As a result, a complaint was made against Zurga and a conference was held between the Union's Grievance Com- mittee and Hamilton , representing the respondent . Zurga had contended that his duties as chairman of the Grievance Committee took him into the various departments in the plant , and that he was there investigating a complaint. After discussing the complaint against Zurga, the respondent was satisfied that neither Lindsley nor Post could substantiate the charge against him and it was thereupon dismissed . Furthermore , Works Manager Chaffe conceded in his testimony that he had agreed with the- Committee at that meeting that Zurga was absolutely within his rights in going into other departments "on legitimate complaints." At the close of'the meeting , Hamilton said to Zurga, according to the latter's testimony , "I don't have anything on you this time . . . but if I ever do, I will get you no matter how long it takes." Zurga replied, "Walter, any time you get something on me, I will be in the shop." Hamilton denied the statement . attributed to him by Zurga. He testified , however, that what he probably said at the time was, "0 . K. boys, you win this one. I will get you on the next one." His explanation for this statement was that, after he became labor relations representative of the respondent, it was "quite customary" for him to use this expression as "a closing gesture" in discussing SIMMONS COMPANY 143 a grievance or complaint with the committee since, as he put it, in the handling of labor today it is a matter of "give and take." According to him, the statement was intended to apply, not to the individual involved in the grievance or com- plaint, but, rather, to the matter in dispute. Edward Forster, who was also a member of the Union's Grievance Committee at the time and who was present (luring this conference, corroborated Zurga's testimony as to this occurrence. The undersigned finds that Hamilton made the statement attributed to him by Zurga substantially as testified to by him.'B Early in 1942, the respondent decided to send some of its employees to a vocational school in connection with its conversion to war work. All employees were furnished with questionnaires. Zurga filled out one of them and stated therein that he had had experience with punch and drill presses prior to his employment with the respondent In May, all of the cross-stitch operators were interviewed by the respondent to determine their aptitude and the desirability of sending them to school. Zurga, who had had over 3 years experience as such an operator, but who, for i few weeks had been a tick supplier, was not inter- viewed. Though Wiltse admitted that Zurga had more formal education, more seniority, and more experience than some others who bad previously been chosen to go to school, Zurga was not selected until June, after he had told Chaffe that he thought he was being discriminated against.. Chaffe sent Zurga to see Wiltse. Wiltse told Zurga that, at conferences between representatives of the Union and of the respondent, Zurga's name had been coiwidered several times and that the Union opposed sending Zurga to school. Wiltse also asked Zurga if he had settled down. When Zurga inquired what he meant, Wiltse replied, "Well, you know the trouble we have been through." Zurga asked Wiltse what he meant by "trouble" and he said, "You know; the CIO". Although Zurga had already been definitely selected by Cbaffe to go to school, Wiltse told Zurga to see the Union committee which had been set up to interview potential trainees. Zurga asked who was running the program, the Union or the respondent. Wiltse made no direct reply, but said, "You go on over and see the committee, and if they want to let you go to school, let them take the credit for it.iY9 Zurga was enrolled in the school soon thereafter. When Zurga first attended the school, Primmer, instructor in charge of the machine shop, told him that there was to be no organizing in the school, and later told Zurga that he knew about his activities in the C. I. O. at the re- spondent's plant, and that he would not tolerate that in his school. About the end of July, Primmer gave Zurga a job requiring the use of a chuck wrench. Since Zurga could find none, he asked Primmer if he had one. Primmer told Zurga to find one. Again being unsuccessful in his search for a wrench, Zurga asked Primmer if he would get one for him Primmer then told Zurga to make one. Zurga replied that he had never made a chuck wrench, but that, if Primmer would tell him how to do it, he would try to make one. Primmer then grabbed Zurga by the arm and started to walk him toward the door. Zurga told Primmer to let go of him and added that, if Primmer had anything to say to him, he should say it, but that he should not manhandle him. There- upon, Primmer said, "You are suspended ; I don't want you around here." Later, at a conference between Zurga, Martin Corcoran, director of the school, and >B Both Zurga and Forester, impressed the undersigned as being convincing and credible Witnesses On the other hand, Hamilton 's testimony contained self-contradictions and the undersigned does not credit him 19 These findings are based on the testimony of Ziirga . Though Wiltse denied that he made some of the statements , in view of inconsistencies and self-contradictions in his testimony, the undersigned was not impressed with these denials and therefore credits Zurga's testimony as to this incident. 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Woodin, another official of the school , Corcoran asked Zurga if he had at- tempted to organize the school for the CIO , and, upon Zurga's denial , told him that Primmer had sent him home because he was attempting to organize the trainees . Zurga explained that there would be no point to organizing the students as they would go to various plants after finishing their studies, and Corcoran agreed with him. During this conference, Zurga gave his version of the incident between him and Primmer , and Corcoran said that, if those were the facts, Primmer had perhaps acted "a little hasty," but that for the sake of discipline Zurga could not return to Primmer 's class. After a telephone conversation between Woodin and Wiltse , who was in charge of the training program, Zurga was suspended for 1 week and thereafter went to another school?' On the afternoon of August 24, 1942, prior to completing his course, Zurga returned from the school in response to a telegram from the respondent and reported to Frank Adams, shift superintendent of its shell department. Later that afternoon he went to Adams' office at the latter's request. Adams told Zurga that, since he had never worked for him before, he wanted Zurga to understand that things were different in his department than they were "on the other side," in the mattress department. Asked by Zurga what he meant, Adams replied that the "stuff" that was going on across the street was not going to be permitted in his department and that, if Zurga expected to get along, there must beano trouble, since Adams would not stand for it. He said that if Zurga intended to stay he would have to behave himself.21 About September 5, 1942, toward quitting time, John Marcel, an inspector in the shell department, who had no work to do at that time, came over to Zurga's machine and began to talk with him After he had talked to him about 2 or 3 minutes, Foreman Willig told Marcel, "You are not allowed to talk to this fellow. Get over by your machine," Marcel asked Willig, "Since when can't I talk to anybody around here?" Willig replied, "There is no talking. Go on over to your machine." zz Marcel thereupon went to consult his trustee, Her- bert Haskell. He and the trustee had a conference with Adams, Lindsley, and Willig. At the conclusion of the conference, Haskell told Zurga that Marcel was wrong and that there was to be no talking on the job. Willig admitted that it was a custom for men to go from one machine to another and have conver- sations and that talking was permissible, but that too much time should not be spent at it. Further , Zurga testified that he never knew of any rule con- cerning talking in the shell department and that most of the operators and inspectors used to talk to each other "when they had a lull in the production:" Gilroy testified that, although the respondent tried to "discourage unnecessary conversation," not related to work, there was no "cut and dried rule" against talking to a fellow-employee on the "next machine" or an inspector "alongside" him. Zurga was subsequently transferred to the cross -stitch department,' where he was employed under Foreman Lawrence Tucker. On September 21, 1942, Foreman Tucker told Zurga to stay at his machine and to "watch out" 20 No one from the school testified 21 These findings are based on the testimony of Zurga. Though Adams testified that he did not remember making some of these statements , his testimony was self-contradictory in part and the undersigned credits Zuiga. 22 These findings are based upon the testimony of Zurga Except for the fact that Willig testified that the conversation between Zurga and Marcel took about 10 minutes , rather than 2 or 3 minutes as testified to by Zurga, Willig generally corroborated Zurga's testimony on this point The undersigned credits Zurga. 23 There was no contention that his transfer was discriminatory and the evidence warrants no such finding. SIMMONS COMPANY 145 because things were different than they had been and that he "wasn't going to stand- for any ' monkey shines." When asked by Zurga what he meant, Tucker replied, "You know what I mean. I heard you saying around here before now, either you do or else." Zurga asked , him to explain this statement but was put off by Tucker with the remark , "You know what I mean."' The following day one of Zurga's two machines broke down . Zurga attempted to get a mechanic to repair the machine and on being informed that the mechanic was busy and did not know how long it would take to repair his machine, Zurga reported the situation to Tucker. Tucker thereupon told Zurga that he would not pay him for his down time .' Zurga asked Tucker why he was not going to pay him for his down time and Tucker replied, "Well , go ahead home; that is all there is . . . You go ahead home. I am not going to pay you any down time." Zurga remonstrated with Tucker, arguing that there were people on the job with less seniority and that he felt he should be allowed to continue working. When Tucker refused to altar his decision , Zurga reported at the office of Superintendent Michael James Coyle, Sr., in charge of the mattress department . Zurga related what had transpired between him and Tucker, following which Coyle telephoned to someone in the plant . After this telephone conversation was concluded , Coyle informed Zurga that a needle in the machine had been in backwards ," that the machine was all right and that Zurga could go back to work. When he returned to his department he found a mechanic still working on the machine which had broken down, and this machine was not in running condition until the following day 27 Zurga was paid for his down time on this occasion. Zurga's discharge followed 2 days later. It is evident, from all the facts set forth above that the respondent favored the Union as the labor organization to represent the bulk of its employees; that Zurga was the leader of the C. I. O. pre-election organizational campaign ' These findings are based on the testimony of Zurga. According to Tucker's testimony, he said that he told Zurga, "We are working here, you and I, and we just want us to get to understand one another. . If you are going to work for me, we will just hit the ball together," and that Zurga replied, "I guess that's all right ; I guess we understand one another that much." In view of inconsistencies in Tucker's testimony, the undersigned was not impressed with this explanation and therefore credits Zurga's testimony 2E Down time is the period of inactivity of a machine during working hours, which re- sults without fault of the operator. Under the terms of the contract between the Union and the respondent, in general, any down time in excess of 20 consecutive minutes was paid for by the respondent at the regular average rate of pay for the period of 12 weeks immediately preceding. 21 In view of the fact that operators sometimes inserted their own needles in their machines, this might indicate some negligence on the part of the operator Zurga testi- fied, however, that if the needle had in fact been inserted backwards, he would have known it, as the machine would not have stitched the border. He testified that he knew of no defective borders and that none were returned to him as defective. Although Tucker first testified that the needle was twisted or in backwards, he later testified that that was not the case on September 22. Moreover it would have taken less than a minute to change a needle, but, according to Zurga's testimony, his machine was not in running condition until the following day. 27 These findings are based on the testimony of Zurga. Tucker admitted in his testimony that he told Zurga to go home, but stated that he said, "Zurga, what seems to be the trouble? Those machines are in good running condition. If you cannot take care of them any better than that, why don't you put on your hat and coat and go home?" He testified further that Zurga said that that was all right with him. However, he also testified that, after this conversation, Zurga went to see Coyle and that Coyle telephoned Tucker to put Zurga back to work. This admission would seem to be wholly inconsistent with Tucker's testimony that Zurga had acquiesced in Tucker's order that he go home. Although Coyle testified that he did not recall talking to Zurga on September 22, Tucker's testimony would seem to confirm Zurga's statement that he talked with Coyle on that day. The undersigned therefore credits Zurga. 567900-44-vol. 54-11 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at its plant in'1942, that he continued to plan the return of the C. I. O. to the respondent's plant even after the election ; that he was responsible for the resignation of one of the Union's presidents and of one of its Grievance Com- mittees, on the ground that they were not energetically representing the interests of the employees ; that' he subsequently became a trustee, and the chairman of the Union's Negotiating and Grievance' Committees, and that he was the most active member of the Union in pressing the demands of the Union against the respondent and in opposing the respondent's position ; that, 'less than 60 days before his discharge, he alone successfully spoke against a proposed contract which the Union's Board of Trustees praised and asked the members to ratify ; that the respondent knew of these facts, and resented- what it considered his interference with the former tractable conduct of the Union in its relations with the respondent ; that the respondent threatened Zurga's dis- charge; and, that, in several instances, it treated him discriminatorily. Under such circumstances, the allegations of the complaint as to Zurga's discharge must be sustained in the absence of a clear showing that his discharge was not based upon union, or other concerted, activities. 3. The respondent's contentions concerning the discharge of Zurga , The respondent at the hearing, as well as in its answer,- contended that Zurga was discharged for inefficiency, careless and unsatisfactory work, abusive language addressed to co-workers, and the circulation of false rumors of pending lay-offs and work stoppage. The only reason for discharge stated in Zurga's Termination of Service Notice was : Undesirable Spreading False Rumors effecting (sic) the Production & Moral (sic) of the Dept. - In support of Zurga's discharge on the ground of inefficiency and unsatis- factory work, the respondent attempted to show that, while he was employed in the shell department, Zurga's volume of production was low and that a certain operation in connection with the banding of shells was defective. Although there was some evidence from the respondent's witnesses, Adams, Chaffe,' and Willig, to support these claims, no complaint was ever made to Zurga by the respondent's supervisory officials that any of his shells had been rejected, and, the day after it had been alleged that he had spoiled 75 to 100 shells on the banding machine, he continued to work on the same machine and there was no evidence that any of the shells produced on that machine had been rejected that day. An attempt was also made by the respondent through Wiltse to establish that Zurga's visits to the first aid department during the period that he was working in the shell department were excessive, as evidence of his carelessness and inefficiency. However, in view of Wiltse's admission that the rules of the company required employees to report, and to receive first aid treatment for, all injuries, however slight, this evidence was not impressive Moreover, there was no showing by the respondent that Zurga's visits to the first aid department were excessive, compared with those of other employees in the same department at or about that time. Further complaints by the respondent of unsatisfactory work were based on the claim that Zurga had excessive down time and that his conduct at the vocational school was objectionable. Although it is true that Zurga had had a great deal of down time even after he ceased holding office in the Union, his down time was never seriously questioned, except on one occasion. As to this occasion, after a conference between Zurga and Coyle, Zurga was paid not only SIMMONS COMPANY 147 for the down time in dispute, but also for the time which was involved in adjusting the grievance arising out of it. The respondent asserted that it might justifiably complain of improper be- havior of Zurga while he was at the school, since, during that. period, he was in the employ of the respondent and was paid wages. , His behavior there, of which the respondent complained, consisted of his making suggestions concern- ing the running of the school, of his failing to do his share of the cleaning, and of an incident which resulted in his suspension. It is undenied that he made the suggestions complained of and that they were originally rejected, but soon after they were made they were adopted. Wiltse testified "that, while he was visiting Zurga's school, he was told that Zurga would not clean up his machine and do his share of the sweeping. He admitted, however, that he never spoke to Zurga about this. As has been fully set forth (supra, •p. 11), Zurga was suspended for a week without pay for an incident occurring at the vocational school about the last of July 1942. However, Gilroy, who held the highest executive position at the respondent's Elizabeth plant, admitted that Zurga was not discharged because of his suspension, and Wiltse, the respondent's personnel manager, and Chafe, its works manager, admitted that he was not discharged because of anything that occurred at the school. The contention that Zurga had used abusive language to his coworkers 28 was based on an incident which occurred sometime in February or March, 1942, when Zurga is alleged to have called George Kilburg, a mechanic in the cross- stitch department, a "God damn Nazi " According to Zurga's testimony, one of his machines was "down" and he requested Kilburg to repair it. When Kil- burg apparently showed some undue delay in doing so and engaged in con- versation with someone else, Zurga repeated his request to him to repair his machine. According to Zurga, Kilburg thereupon replied, "Oh, is that thing down again? You are deliberately breaking these machines . . I am going to have you investigated by the FBI." An exchange followed in which Zurga asserted that he was a native born citizen, while Kilburg was of German extraction. Kilburg retorted that he was as good a citizen as Zurga or bet- ter, and repeated the charge that Zurga was deliberately breaking the cross- stitch machines. Zurga, according to his own testimony, then told Kilburg, "Look here, you are z no good Nazi, so far as I am concerned." Zurga claimed that Kilburg then reached behind him where he had his tools and made a threatening gesture as if to strike Zurga with a wrench.29 Subsequently,.Ham- ilton, without inquiring of Zurga who started the argument, said to him, "Adolph,, as far as your personal feelings, outside of your regular line of work is con- cerned, I wish you would hold that until you get outside of the plant property." Nothing further was said to Zurga by the respondent about this incident. Although the respondent contended that Zurga was discharged for an accumula- tion of reasons, it is significant that the respondent's supervisory officials did not contend that Zurga was -discharged because of his inefficient and careless work which, in fact, had never been complained about prior to the hearing; be- cause of his abusive language to his fellow employees or supervisors ; because of his conduct at the vocational school, or for any reason other than that stated in his termination notice, namely, that be was undesirable-spreading false 28 The charge that Zurga had used abusive language to Superintendents Lindsley and Post has been referred to hitherto. These superintendents were unable to support this charge m Kilbuig's memory concerning this incident was very poor and his testimony in general was vague, evasive, and inconclusive. The undersigned credits Zurga's version of this incident and these findings are based on his testimony. a 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rumors affecting production and morale in the plant. It is possible to inter- pret Zurga's Termination of Service Notice as indicating that the general ob- jection to him was that he was undesirable, and that the particular objection to him was that he had spread false rumors. However, the undersigned is convinced and finds that this was not the interpretation intended by the re- spondent, especially in the light of Hamilton's testimony. Thus, Hamilton tes- tified that, after his decision to discharge Zurga, he told Coyle "to discharge Zurga on the grounds of passing false rumors throughout the department, af- fecting the morale and production of the departmmt, as an undesirable em- ployee ; told him to fill that in onto the termination slip." Thereupon, Coyle instructed Tucker to prepare Zurga's Termination of Service Notice. When Hamilton received the notice he discovered that the only reason stated therein for Zurga's discharge was that he was `.undesirable " He thereupon telephoned Coyle_ and asked him if he was sure that that was the way he would make out a termination slip. Coyle replied that Zurga was an undesirable employee and had been spreading false rumors, and that he thought the word "undesirable" would cover it. Hamilton then told him "it should be clarified" for the employ- ment record so that anyone who took over Wiltse's duties in the future "would have some knowledge as to the actual dismissal." At another point in his testi- mony, he said he told Coyle that in the termination notice there should be "at least some inkling what his discharge was surrounded by, other than the one word 'undesirable."' Therefore, Hamilton himself added, under the word "unde- sirable,:" the words "Spreading False Rumors effecting (sic) the Production & Moral (sic) of the Dept." Hamilton when asked to make a complete statement of the reason or reasons for Zurga's discharge, replied, "I made my decision on the climaxing incident, which was on the day of September 24, and the background of the shell` incident, the Kilburg incident, his down time, had a connection with the actual dis- charge, but the actual discharge was based on the incident of the 24th. That was the disturbance that was caused in the tick room" (Emphasis added). When asked further whether he had testified that he had discharged Zurga for no incident except the incident which occurred on September 24, he stated that he had so testified. He further stated that his testimony was that after each of the incidents which had been suggested by the respondent as a ground for Zurga's discharge, except the one occurring on September 24, he had decided not to discharge him but to give him another chance.'° In view of all the facts, and particularly in view of the admissions of super- visory employees of the respondent, the undersigned finds that the only reason relied upon by the respondent for Zurga's discharge,, at the time thereof, was its contention that he had spread false rumors of impending lay-offs, and had thus affected production'and the morale of the employees. The next question to be considered, therefore, is whether Zurga did in fact circulate false rumors of impending lay-off s among employees of the respondent and whether the respondent reasonably believed that he had done so when it decided upon his discharge. - Zurga testified to the following facts. On September .23, 1942, Josephine Dunay, trustee for employees of the tick room, which was part of the mattress department, asked Zurga to interpret the lay-off clause in the contract between the respondent and the Union. Zurga inquired why she did not go to the Union's officers to get the information, since he was no longer a trustee. Dunay replied that she wanted his interpretation, as he was familiar with it and could Go Hamilton further testified that when , at the request of a field examiner for the Board who was investigating the case, he prepared a memorandum on Zurga, he "more or less" dug up every record against Zurga. SIMMONS COMPANY 149 give her a better one than "those guys." She further told him that' Helen Schindler Levy, then Helen Schindler, and Nellie Williams had been sent td work in the tick room, though before they came there had not been enough work for the girls who were there," and that she was going to see about having them laid off. Zurga interpreted the clause in question by telling her that, if the work in a department went below 32 hours a week for each employee, lay-offs of those having the lowest seniority could be demanded so that those remaining could, work 32' or more hours. He told her that under the circumstances she could demand that the girls mentioned by her be laid off. She told Zurga that she was going to have Coyle, superintendent of the mattress department, of which the tick room was a part, take care of the matter, and later Zurga saw her talking to Coyle? Soon thereafter Sophie Stephanie, an employee in the tick room, asked Zurgd what Dunay was talking to him about. Zurga told her. Later Helen Rotunno, another-employee in, the tick room, asked Zurga if Dunay was going to have Levy and Williams laid off. Zurga inquired why she did not ask Dunay: Rotunno replied that Dunay would not tell her anything, and Zurga agreed that this was probably so Zurga then told Rotuno of his conversation with Dunay.i About 3: 45 p. in. on the same day, after finishing her work, Levy stopped at` Zurga's machine and asked Zurga if he knew that Dunay was going to have her and Williams laid off." Zurga told Levy what he knew about the matter, whereupon Levy said that she did not care, as she had a job she could go to. However, she said she had been called back to work recently and she wanted to know why the respondent called back employees if they were going to lay them off. The next morning, September 24, Dunay can-.,e to Zurga and asked him what the idea was of causing trouble among the girls, and accused him of telling the girls they were going to be laid off. Zurga asked her what trouble she was talking about, but she walked away without answering. The testimony of Dunay and Levy as to these matters differs considerably from that of Zurga Dunay testified that she did not talk with Zurga on the afternoon' of September 23, and that, when she spoke to him on the morning of September 24, she asked him where he learned that the girls were going to be Maid off and he told her that it had been going on "off and on," and that when he had been hired for the job on the cross-stitch machine it was to last for only a few weeks. Dunay replied that that did not mean that the girls would be there only a few weeks and that she had heard that there was plenty of work. Zurga then told her that she! knew lie had never been wrong in what he had said and she replied, "Yes and no." She said that she would see Souza, and Zurga said "Why Souza?" (Souza had just replaced Chailes Holste as chairman of the grievance committee Levy, testified that when she talked to Zurga on the afternoon of September 23 she did not stop at Zurga's machine but that he called to her while she was about 20 feet away from him and that she did not inquire whether he knew that Dunay was going to have her and Williams laid off, but that lie asked her if she knew she was going to be laid off." The undersigned credits Zurga. "That this was the situation is supported by the testimony of Gilroy to the effect that in sane departments of tPe respondent's plant its employees had been working less than a normal number of hours in September 1942 " Neither Stephanie nor Rotunno testified and no explanation was offered for their not having done so sa Though Williams attended most of the hearing, she was never called to the witness stand 31 There were numerous self-contradictions in Dunay 's testimony . Though there were also some inconsistencies in Levy's testimony , more important , in determining the ac- curacy of her testimony as far as it was inconsistent with, Zurga's, was her admission of opposition to Zurga since he had become a supporter of the C I 0 . As to that she said, "I always liked him until he got implicated with the CIO, and then I just turned against him." She also said that Zurga had "created a lot of trouble with the CIO throughout the plant," and she was not in favor of it. -150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is undenied that, about an hour after Dunay talked with Zurga, Jesse Souza, the trustee for the mattress finishing department, came to Zurga and said to him, ".What's this I hear about you spreading rumors among the girls that they are going to be laid off " To this inquiry Zurga made no reply. Souza then told Zurga, "Well, you had better stop those rumors." To this Zurga said, "What are you going to do about it?" '° ahd Souza answered, "Just wait until this afternoon and see,how I stop you from making these rumors." On the morning of September 24, while he was on his way up to Hamilton's office, Coyle noticed Jesse Souza and Adolph Zurga having a heated argument, and' also observed quite a commotion in the tick room and small groups of girls scattered throughout the room engaged in conversation In the course of a discussion with Hamilton concerning production, Coyle mentioned the incident that he had observed in the tick room and was instructed to ascertain what the trouble was. He returned to his office to find Dunay waiting for him. Though she told him that Zurga had caused all of the girls to be upset by telling them*that they were going to be laid off and that the girls were demanding their releases, both Dunay and Levy testified that they had begun conversations with other women in the tick room concerning lay-offs, and Dunay conceded that only Levy named Zurga as the one who had told her of impending lay-offs. About this time Robert C. Greene, President of. the Union, and Souza came into Coyle's office with a request for the respondent's production figures. They were referred to-Hamilton who, upon being advised of the reason these were wanted, furnished them with the information which subsequently was communicated to the employees in order to reassure them about prospective work. As a result of the statements that were made by Coyle, Souza, and Greene to Hamilton, the latter and Wiltse went into the tick room to investigate the situation. Hamilton approached Dunay, who informed him and Wiltse of the conversation between Zurga and Levy and of the matter of the request by the employees for their releases. At the conclusion of their conversa- tion, Wiltse asked Dunay and Levy if they were willing to sign statements con- firming the conversations that they had had with Zurga. They agreed to do so, and, before Zurga's discharge, made such statements. Coyle went to Hamilton's office where the situation was discussed, and Coyle asked Hamilton what should be done about it. Hamilton, who, as far back as July 1941 had threatened Zurga with discharge, replied, "I have about made up my mind that I will have to let Mr. Zurga go." Coyle agreed that he was "in full accord." About 2, o'clock on the afternoon of September 24, Foreman Tucker notified Zurga to report to Coyle's office. As they approached Coyle's office, Zurga saw Jesse Souza leave by the door leading to the office.S" When Tucker and Zurga entered Coyle's office they were asked to wait until David Crocie, Zurga's trustee, 14 Although Zurga's reply to Souza's admonition to stop the rumors was ambiguous and, at first impression, might indicate that this was an admission on Zurga's part that he had spread rumors about lay-offs, Zurga, while admitting that he had made this statement in reply to Sotza , asserted that he had not been friendly with Souza nor on speaking terms with him, and that he had his arms full of felt which he was carrying to his machine at the time of this exchange. The undersigned finds that this statement was due to his unfriendliness and annoyance with Souza and should not be construed as an evasion or admission on the part of Zurga Zurga's candor in admitting in his direct examination that he made this statement favorably impressed the undersigned. 31 Two offices, one of which was Coyle's, could be reached through this door Though Coyle denied that Souza had been in his office at this time, the undersigned credits Zurga on whose testimony the finding is based. Souza did not testify. SIMMONS COMPANY 151 arrived .17 As soon as Crocie arrived, Coyle, without asking Zurga for any explana- tion in connection with the alleged rumors of lay-offs in the tick room, told Zurga, '•'Adolph, I am going to have to let you go." Zurga asked the reason for his discharge, and Coyle replied, "Well, you have been spreading false rumors, dis- rupting my production, and therefore you are an undesirable employee." Zurga thereupon asked him what the rumors were, and Coyle said, "Well, you told the girls down in the tick room that they were going to be laid off and they have been running up here for their releases and disrupting production, and there is nothing further I can do about it but let you go." Zurga replied, "That's that, I suppose." Coyle then advised Zurga, "Well, you have been in this game long enough, you know what to do about it." On further inquiry from Zurga as to what he meant, Coyle replied, "Why don't you go see our grievance committee?" 33 Coyle admitted that he gave Zurga no opportunity to defend himself against the charge that he had spread rumors concerning prospective lay-offs, until after he had told Zurga that he was "going to have to let [him] go." He ad- mitted that it would have been very easy for him to do so, but that he did not do so because he thought he already had enough information without dis- cussing the charge with Zurga, and that, e had given Zurga a chance to defend himself while he was in his office at the time of his discharge Coyle further admitted that Crocie had not been informed of the facts relating to Zurga's dis- charge before he was called into the conference, and that it was then only that Crocie was informed of the grounds for the discharge. Wiltse admitted that, although prior to Zurga's discharge he had called Dunay and Levy into his office and obtained signed statements from them concerning the spreading of rumors attributed to Zurga, he never talked to Zurga about it but relied entirely on the statements of Dunay and Levy. Crocie took no part in the conference and, as Zurga and Crocie left Coyle's office, the latter apologized to Zurga for not having been able to accomplish any- thing, asserting that he had known nothing about it until he was called to Coyle's office. Zurga assured Crocie that it was all right, and that, in view of the fact that Crocie was a new trustee and not familiar with the grievance procedure, Zurga would present his grievance on his own behalf He was unsuccessful in his search for a member of the Grievance Committee that day, and the following day, September 25, called to see Coyle to ascertain more about the reason for his discharge and to see if he would reconsider his decision. Coyle told Zurga that he did not want to discuss it as there was nothing 'he could do about it, and recommended to Zurga that he consult with Souza, the new chairman of the Grievance Committee.39 Zurga attempted to contact Souza, without success. 31 While Zurga was a member of the Grievance Committee, the method of handling dis- charges was to have a meeting between the committee, the employee whose discharge was in question, and representatives of management, sometimes including the employee's fore- man. A discussion would thereupon be held as to whether or not the discharge was war- ranted This finding, which is based upon Zurga's testimony, is substantiated by the` terms of the contracts which were in effect during his membership on the committee. 38 This finding is based upon Zurga's testimony Although Coyle denied the use of the word "our" with reference to the grievance committee, the undersigned credits Zurga. Coyle testified that he told Zurga that if he thought he had been treated unjustly he knew what procedure to follow. He also testified that he pointed out that Zurga's delegate was there, and that he could take such steps as were necessary to present his grievance Ac- cording to Coyle, Zurga thereupon replied, "To hell with the delegate " Zurga denied that he made this statement. The undersigned credits Zurga 30 Coyle testified that on September 25 Zurga came to his office and told him that he had come to ascertain the reason for his discharge; that he had been upset the day before, and had not realized the charges against him ; and that that was one reason why he had said nothing in his own behalf. Coyle further testified that Zurga said that he was sorry "it" had happened, that he had a wife, that he had just bought a new house, and that he would like another chance. Zurga denied that he said he was sorry or asked for another chance. The undersigned credits Zurga. 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The undersigned finds that Zurga did not circulate false rumors of lay-offs among employees of the respondent. The credible testimony shows that he did not volunteer information concerning lay-offs and that he merely replied to the requests for information concerning the interpretation of the provision in the contract, regarding lay-offs, which Dunay had sought from him. This finding is supported by the admission of Dunay that Levy, who admittedly had "turned against" Zurga, ° was the only one who had complained that Zurga had, without solicitation, given her this information concerning lay-offs. Upon the entire record, the undersigned is convinced and finds that the re- spondent did not, in good faith, believe that Zurga was spreading or circulating false rumors regarding prospective lay-offs, but seized upon this ostensible reason as a pretext for discharging him and thereafter refusing to reinstate him. The undersigned further finds that Zurga was discharged by the respondent because of his militancy while active in behalf of the Union, because of his activity on behalf of the C. I. 0. during its organizational campaign, and the threat that he might renew a C. I. 0. organizational campaign in the plant, and because of his subsequent concerted activities in opposition to the Union on or about August 30, 1942 By thus discriminating in regardto the hire and tenure of employment of Zurga, the respondent has discouraged membership in the C. I. 0.,41 and has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in 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 obstructing commerce and the free flow of commerce. V THE REMEDY Since it has been found that the respondent has engaged in unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the respondent has engaged in a course of conduct calculated to interfere with, restrain, and coerce its employees in the exercise of the rights guaranteed them in Section 7 of the Act. It will, therefore, be recommended that the respondent cease and desist from such action It has been found, that the respondent discharged Adolph J. Zurga and thereafter refused to reinstate him because he assisted the C. I 0. and engaged in concerted activities for the purpose of collective bargaining and other mutual aid and protection It will, therefore, be recommended that the respondent offer the said Adolph J. Zurga immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges. It will be further recommended, that the respondent make the said Adolph J. Zurga whole for any loss of pay he may have suffered by reason of his discharge by payment to him of a sum equal to the amount which be would normally have earned as wages from the date of his discharge 40 ,See footnote 34, supra 41 The testimony of Levy that at a conference concerning this case, she told the field examiner for the Board that, since Zurga had been discharged, a few C. I. 0 supporters "kept their mouths shut" and that "they" had no trouble with them any more, lends support to this conclusion. SIMMONS COMPANY 153 to the date of the offer of reinstatement less his net earnings ,, if any, during such period.u 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. Simmons Co-operative Union, unaffiliated, Was a labor organization and Simmons Elizabeth Employees' Union, Inc., unaffiliated, and United Furniture Workers of America, affiliated with the Congress of Industrial Organizations, are labor organizations within the meaning of Section 2 ( 5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices , within the meaning of Section 8 (1) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Adolph J. Zurga, thereby discouraging membership in the United Furniture Workers of America, affiliated with the Congress of Industrial Organizations, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) 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. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the undersigned recommends that the respondent, Simmons Company, a corpora- tion, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in United Furniture Workers of America, affiliated with the Congress of Industrial Organizations , or any other labor organization of its employees by discharging or refusing to reinstate any of its employees or in any other manner discriminating in regard to their hire and tenure of employment or any other term or condition of their employment; (b) In any other manner interfering with , restraining, or coercing its em- ployees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : (a) Offer to Adolph J. Zurga immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority and other rights and privileges and make him whole for any loss of pay he may have suffered, by reason of the respondent's discrimination against him, by payment to him of a sum equal to that which he normally would have earned as wages 4213y "net earnings" is meant earnings less expenses , such as foi transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawful dis- charge and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett `Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L R. B 440. Monies received for work performed upon Federal , State, county, municipal, or other work -relief projects shall be considered as earnings See Republic Steel Corporation v. N. L R. B. 311 U. S 7. 1 54 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD from the date of his discharge to the date of the offer of reinstatement , less his net earnings q3 during said period; (b) Post immediately in conspicuous places in its plant in Elizabeth, New Jersey, 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) and ( b) of these recommendations ; (2) that -the respondent will take the affirmative action set forth in paragraph 2 (a) of these recommendations , and that its employees are free to remain or become members of the United Furniture Workers of America, affiliated with the Congress of Industrial Organizations , or any other labor organization and that the respond- ent will not discriminate against any employee because of membership or activity in that or any other labor organization (c) Notify the Regional Director for the Second Region in writing within ten (10) days from the receipt of this Intermediate Report what steps the respondent has taken to comply herewith. It is also recommended that unless , on or before ten ( 10) days from the date of 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 it 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, Washington , 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 per- mission to argue orally before the Board, request therefor must be made in writing to the Board within ten ( 10) days after the date of the order transferring the case to the Board. . CARL C. WHEATON Trial Examiner Dated September 13, 1943. 4e ,See footnote 42, supra.