Ever Ready Label Corp.

e In the Matter of EVER READY LABEL CORPORATION and UNITED PHOTO- GRAPHIC EMPLOYEES UNION, LOCAL 415, C. I. O. and THE NEW YORK JOINT COUNCIL OF INTERNATIONAL PRINTING PRESSMEN AND ASSISTANTS UNION OF NORTH AMERICA, PARTY TO THE CONTRACT Case No. C-2709 (2-C-4982).-Decided January 13, 19.44 DECISION AND ORDER On August 20, 1943-, the Trial, Examiner issued his Intermediate Re- port in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices. and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the respondent and the intervenor, The New York Joint Council of International Printing Pressmen and Assistants Union of North America, herein called the A. F. L., filed exceptions to the Intermediate Report and briefs in support of their exceptions. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was com- mitted. The rulings are hereby affirmed. Pursuant to notice, a hearing for the purpose of oral argument was held before the Board at Washington, D. C., on October 26, 1943, at which the respondent, the A. F. L., and United Photographic Em- ployees Union, Local 415, C. I. 0., herein called the C. I. 0., were repre- sented by counsel. Upon consideration of the entire record, we affirm and adopt the findings, conclusions, and recommendations of the Trial Examiner except insofar as they are inconsistent with our findings and conclusions hereinafter set forth. 1. Interference, restraint, and coercion The record shows that from the very outset of the C. I. O.'s organi- zational campaign, the respondent manifested its opposition and hostility to the C. I. 0., while at the same time urging its employees to join the A. F. L. Thus, on October 2, 1942, when the respondent learned of the dissatisfaction of its employees with the Ever Ready Employees Club and of their intention to organize through the 54 N. L. R. B., No. 82. 551 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. I. 0., President Hollaender, in the presence of Vice-President Taur- one, warned employee Salerno that the respondent would spend $10,000 of accumulated bonus money to defeat that organization., Before the C. I. 0. meeting scheduled for that night, and again on the evening following that meeting, the-pressmen were convened at the plant and addressed by Taurone and Hollaender,2 who pleaded with the employees not to join the C. I. 0. and urged that, if they desired to join a union, they should join a printe'rs' union rather than the C. I. 0., which was described as ,a "photographer's union." Ap- proximately 2 weeks later, the A. F. L. Printers Union made its appearance at the plant. Thereafter on numerous occasions, President Hollaender continued his anti-C. 1. 0. and pro-A. F. L. activities by disparaging the C. I. 0., its organizer and adherents; by wrongly and publicly accusing Salerno, an'active C. I. 0. adherent,. of having warned a fellow employee not to sign up with the A. F. L.; by threatening to discharge Salerno; by announcing that the respondent would not sign a contract with the C. I. 0.; and by advising the employees to join the A. F. L. Al- though it is not entirely clear from the record that Hollaender, in expressing his preference for the A. F. L., alluded to that organiza- tion by name beyond referring to it as a "printers' union," 3 the fact that the A. F. L. was then the only printers' union seeking to organize the respondent's employees left no doubt as to his intent.4 The respondent's efforts to defeat the C. I. 0. and establish the A. F. L. in the plant were intensified after the consent election of November 6, 1942, which resulted in a tic vote. As an object example of the lengths to which it was prepared to utilize its economic power against employees who had incurred its displeasure, the respondent, as set forth in the Intermediate Report, discriminatorily transferred and on November 24 discharged employee Katz because of the latter's refusal to renounce his allegiance to the C. I. 0. i Salerno's testimony to this effect was denied not only by Hollaender , as noted by the Trial Examiner, but also by Taurone. The Trial Examiner found, and we agree, that Salerno was a credible witness. Taurone's testimony in certain other respects was incon- sistent with a statement made by him to one of the Board's Field Examiners. Accordingly, we credit Salerno's testimony and find that Hollaender made the statement as testified by Salerno 2 The respondent conceded that at least the second meeting was prompted by the C. I. O. activities 3 The respondent did not deny that Hollaender advised the employees of his preference for a printers' union. Moreover; as noted in the Intermediate Report, Hollaender at one point in his examination testified : "I may have said I wanted the union. The fact remains I finally signed up with the union" ( emphasis supplied ). We find no merit in the re- spondent's contention, urged in its brief before the Board, that this testimony was stricken from the record by the Trial Examiner. The motion to strike was addressed to a portion of Hollaender 's testimony which immediately followed the quoted portion. 4In view of the conceded fact that there was no other printers' union in the field, we find no prejudicial error in the refusal of the Trial Examiner to receive proof on the ques- tion as to whether there was a C. I. O. printers ' union. EVER READY LABEL CORPORATION 553 Shortly before Christmas, Assistant Foreman Broschowitz, during working hours, called the C. I. O. employees individually into the respondent's main office; represented to them that he was acting for management; stated that President Hollaender would not sign a contract with the C. I. 0.; and urged that they all unite with the A. F. L. and "have one big family all over again." About the same time, Hollaender gave support to Broschowitz's representation that he was speaking for management, by advising the employees that he saw no occasion that year to attend the employees' annual Christmas party, stating, "we have 'a battle outside. I don't like it and would rather skip it * * * if 'they can spell out a sincere gift for me I will take it." Shortly after his initial refusal to attend the Christ- mas party, Hollaender, having been advised by a committee of em= ployees "that the spirit of unanimity was progressing," consented to attend the Christmas party where he'gave an address-in which he made Broschowitz an object of special praise and told the employees that the Board and the C. I. O. would be surprised to find that they were "all one big happy family." Immediately after Christmas, Broschowitz, on company premises during working hours and in sight of Plant Superintendent Sacks, solicited employee signatures to petitions renouncing the C. I. O. and affirming allegiance to the A. F. L. During this period, Hollaender disclosed his knowledge and, at the same time, indicated his approval of Broschowitz's activities, by suggesting to employee Weiseltier, according to the latter's credible and undenied testimony, that he advise the Board's Field Examiner that "because of the Christmas spirit everybody was one," and by interrogating Weiseltier as to whether Salerno had yet joined the A. F. L. Upon the foregoing facts, we are persuaded, and we'find, that Hollaender's original refusal to attend the Christmas party, his subsequent change of mind when advised that the "spirit of unanimity was progressing," and his praise of Broschowitz and reference to the C. I. O. at the Christmas party, all were timed and calculated to impress upon the employees that Broschowitz's activities during that period had, as Broschowitz had represented, the support and approval of management. In view of the foregoing and the fact that Broscho- witz's conduct was consistent with that of the respondent's higher officials, the employees had just cause to believe that Broschowitz was acting for and on behalf of management. Accordingly, we find that the respondent was responsible for the activities of Broschowitz and thereby contributed support and assistance to the A. F. L. According to the testimony of President Hollaender and Superin- tendent Sacks, the respondent at the outset of the C. I. O.'s organiza- tional campaign had issued a rule prohibiting union solicitation on company property during working hours, and had, moreover, on a 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD number of occasions strictly enforced this rule to prevent union solicitation by C. I. 0. employees. Nevertheless, as we have already found, Broschowitz was allowed the use of the respondent's office to interview employees during working hours for the purpose of bringing them into, the A. F. L., and was- permitted, without -inter- ference by the plant superintendent, to solicit employee signatures to A. F. L. petitions in the plant during working hours. This disparity in treatment accorded to the A. F. L. and the C. I. 0. in the respondent's application of its no-solicitation rule was in itself, as we find, an act of assistance to the A. F. L. After Broschowitz's activities had met with apparent success, the respondent openly continued its policy of favoring the A. F. L. Thus, in January 1943, while the question concerning representation of the respondent's employees was still pending before the Board, the re- spondent enhanced the prestige of the A. F. L. by permitting the A. F. L. organizer and attorney to be escorted through the plant dur- ing working hours in plain sight of all employees. A request made shortly' thereafter by the C. I. 0. attorney that his organization, be accorded like privileges was rejected. Moreover, in the face of the still undetermined representation proceeding, the respondent in Janu- ary `1943 commenced contract negotiations with the A. F. L., and thereafter openly continued such negotiations notwithstanding the fact that the C. I. 0. had filed with the Board a charge alleging, inter alia, that the respondent was illegally assisting the A. F. L. Although the respondent, acting on advice of counsel, had theretofore refused to execute a contract with the A. F. L. because of the pending Board proceedings, within a week,after the issuance of the original complaint herein, the respondent, without making any effort to terminate a "sit down strike" which had suddenly occurred, promptly called in the A. F. L. organizer, invited him to, address the employees, and entered into a closed-shop contract with the A. F. L.5 We find that the execu- tion of the closed-shop contract under the circumstances herein de- scribed constituted assistance to the A. F. L. proscribed by the Act e Upon the basis of the above-outlined facts and the entire record in the case, we are convinced and we^ find, as did the Trial Examiner, that the respondent aided, encouraged, and assisted the A. F. L., and, thereby, interfered with, restrained,,and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation ' The original complaint herein was issued on May 15, 1943 . On May 18, 1943, the C. I. O. withdrew its representation proceeding without prejudice . The closed-shop con- tract was signed on May 21, 1943 ° w. L. R. B. v. John Engelhorn & Sons, 134 F. ( 2d) 553 (C. C A. 3). EVER READY LABEL CORPORATION 555 of Section 8 (1).7 We further find that the closed-shop contract of May 21, 1943, having been executed with an organization unlawfully aided and assisted by the respondent, is illegal and void. We find no merit to the contention of the A. F. L. that the consent election agreement precludes the Board from finding that the A. F. L. was assisted by unfair labor practices. Katz's discriminatory dis- charge; Broschowitz's activities which were encouraged, supported and approved by the respondent; and the disparate treatment of the rival labor organizations, evidenced partly by the respondent's un-' equal application of its no-solicitation rule, its exclusive dealings with the A. F. L. during the pendency of the representation proceeding, and the execution of the closed-shop contract with the A. F. L. in the face of the pending Board complaint alleging unlawful assistance to it-all these were unfair labor practices which occurred after the elec- tion. There is no evidence that the consent election was intended by the parties or was approved by the Board's agents as a settlement of the respondent's prior unfair labor-practices. Nor does it appear that the Board's agents knew of the full nature and extent of the respond- ent's unfair labor practices at the time of the consent-election agree- ment. For the foregoing reasons, we find, in accordance with our established principles; that the election does not preclude an inquiry into and consideration of the whole of the respondent's conduct (in- cluding its conduct prior to the election) in determining whether or not the respondent has violated the Act with respect to the A. F. L.8 Nor do we find.any merit to the contention of the respondent and the A. F. L. that, notwithstanding the pending representation pro- ceedings and the charge of unlawful assistance to the A. F. L., it was proper for them to negotiate and eventually sign the closed-shop contract, because substantially all of the employees on December 28, 1942, had sigfinified in writing their repudiation of the C. I. 0. and r In so finding, we, contrary to the Trial Examiner , do not rely upon Foreman Hines' activities which the Trial Examiner attributed to the respondent because of his super- visory status Since it appears that production foremen in the respondent 's plant were engaged in the printing trades where foremen have traditionally been active in unions ; that they were eligible to membership in both the C. I. O. and the A. F. L ; that they were included in the unit stipulated by the parties in the consent election agreement, dated October 30, 1943, which was approved by the Regional Director ; and that they possessed no authority to hire or discharge employees-in view of all these circumstances and in the absence of any showing that Hines' action was authorized , approved , or ratified by the respondent, we do not find that the respondent is chargeable for the conduct of Hines. (Cf Matter of W. F. Hall Printing Co., 51 N. L. R B. 640; Matter of The Maryland Dry- dock Company, 49 N L. R. B. 733; Matter of Sam M. Jackson, et al., 30 N. L IL. B. 194, 217) As pointed out earlier in the text, our finding as to the respondent 's responsibility for the activities of Assistant Foreman Broschowitz is based not upon his supervisory status , as such, but upon the facts and circumstances surrounding his activities which, in our view, impel the conclusion that he was acting as the accredited representative of managemynt and that the employees had just cause to believe this to be the fact s See Matter of The Locomotive Finished Material Company , 52 N. L R. B. 922. Matter of Wickwire Brothers, 16 N. L. R. B 316; Matter of Houde Engineering Corporation, 42 N. L. R. B . 715, 724. 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their allegiance to the A. F. L., and on May 3, 1943, had • ratified in writing the proposed closed-shop agreement. In view of the un- lawful assistance rendered by the respondent to the A. F. L., we cannot assume that the respondent's illegal conduct did not induce the employees to repudiate the C. I. 0., join the A. F. L., and signify their assent to the proposed A. F. L. contract. On the contrary, it is reasonable to infer, and we find, that` the action of the employees, upon which the respondent and the A. F. L. rely, did not represent an expression of their free and untrammelled choice.° We have pre- viously held that when representation proceedings are pending before ,the Board, an employer with notice that another labor organization is claiming majority status cannot with impunity negotiate an ex- clusive bargaining contract with' a rival labor organization.1° We reach the same conclusion in this case although it appears that 3 days before the execution of the closed-shop contract, the C. I. O. withdrew its petition for certification, without prejudice to its right to refile it at an appropriate time. When the contract was made, the respondent was on notice that the C. I. 0., although it had withdrawn its petition, had specifically reserved its claim to majority status, and that a com- plaint alleging unlawful assistance had just been issued by the Board. The respondent's action in signing a closed-shop contract with the A. F. L., in the face of the service of'the complaint and notice of hearing, represented a flagrant disregard for the processes of the Act. 2. The discharge of Yasgur The Trial Examiner found, and we agree, that the respondent dis- charged David Yasgur on October 1, 1942, because, on behalf of a group of employees, Yasgur had presented to the respondent on Sep- tember 28, 1942, certain grievances relating to wages, hours, and other conditions of employment. President Hollaender in effect admitted at the hearing before the Trial Examiner that his decision to discharge Yasgur was made, at least in part, because of Yasgur's presentation I In this connection we have considered the testimony of employee Kamer to the effect that he willingly repudiated the C I. 0 , joined the A F L, and signed the instruments in question, and that neither Ilollaender nor anybody else connected with the manage- ment of the respondent requested him to do so, as well as the stipulation of the parties, made at the hearing to avoid cumulative testimony , that if all other employees who signed the instruments were called to testify , their testimony both on direct and cross-examination would be the same as Kamer's. Upon cross-examination , Kamer testified that he had heard Hollaender say in the shop, "If you are going to pick out a union , pick out a printer 's union " As we have found above , the "printer's union" referred to by Hollaender was the A. F. L. We find that this specific evidence counteracts the effect of Kamer's general testimony on direct-examination . Moreover, as we held in Matter of Donnelly Garment Company, 50 N. L. R. B. 241, general evidence of employees that they have joined an organization freely and without interference or coeicion does not overcome more positive evidence of interference and assistance by the respondent, and conclusionary evidence of this nature is immaterial to issues such as those presented in this case . See also N. L. R B v Link- Belt Co , 311 U. S. 584, 588. 10 Matter of John Engelhorn & Sons,.42 N., L. R. B. 866, 875, ent'd 134 F. (2d) 553. EVER READY LABEL CORPORATION 557 of such grievances. In addition to the facts set forth in the Inter- mediate Report, we note that Hollaender testified that the respondent's usual procedure when an employee spoiled a job was as follows: We caution him, we ask him to be careful. If a man is neglectful persistently, I suppose we take strenuous measures. The respondent did not warn Yasgur. According to Hollaender, his reasons were as follows : The reasons may be completely emotional-if a man comes into your office and tells you your plant is too well managed and there is a speed-up system, you resent it. When that man has expressed his opinions and neglects his duty and becomes careless, you would say he should not stay there any longer. Q. Wasn't his discharge the combined reason of his statement he made on the 28th with reference to management and his spoiled job, is that right? A. That is right. Although it is not clear from the record whether the C. I. 0. had yet appeared at the plant at the time of Yasgur's discharge or whether the grievances in question were sponsored by any union, the action of the pressmen in presenting their grievances through Yasgur consti- tuted, as we find, concerted activity for their mutual aid and pro- tection within the meaning of Section 7 of the Act. Upon the basis of the entire ' record, we find that Yasgur's participation in such con- certed activity was at least one of the motivating causes of his dis- charge and that, consequently, the respondent's action in discharging Yasgur violated not only Section 8 (1) of the Act, but also discouraged membership in a labor organization in violation of Section 8 (3).11 Section 2 (5) of the Act defines the,term "labor organization" to in- clude "any organization of any kind, or any agency or employee rep- resentation committee * * * in which employees participate and which exists for 'the purpose * * * of dealing with employers concerning grievances; labor disputes, wages, * * * or conditions of work" (emphasis supplied). The report of the Senate Committee which considered the Act explains that the definition of "labor organi- zation" was phrased "very broadly in order that the independence of action guaranteed by Section 7 of the bill and protected by Section 8 shall extend to all organizations of employees that deal with em- ployers * * *" (emphasis supplied)1a Here, the pressmen banded together and, through Yasgur as their spokesman, presented to the respondent grievances on their wages and hours of employment. • In n See Matter of Lone Star Gas Company, 52 N. L. R: B. 1058, and cases cited therein. is Senate Report 573, 74th Cong , 1st Session, p. 7. 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD view of Section 2 (5) and its broad purpose , it is clear, and we find, that the informal action of the pressmen in presenting a concerted demand concerning their wages and hours, in itself , constituted them a "labor organization" within the meaning of the Act.13 Accord- ingly, we find that by the discharge of Yasgur the respondent dis- criminated in regard to his hire and tenure of employment , thereby discouraging membership in a labor organization , and interfering with, restraining , and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. Moreover, whether the discharge of Yasgur be regarded as,a, violation of Section 8 '(1) or of Section 8 (3) of the Act, we find that it is necessary to order his reinstatement with back pay in order to effectuate the policies of the Act.14 3. The discharge of Katz The Trial-Examiner found that the respondent , on November 24, 1942, discharged Louis Katz, and thereafter refused to reinstate him, because of his membership and activity in the C. I.• 0., and that the respondent discriminated in regard to his hire and tenure of employment, thereby discouraging membership in the C. I. 0. and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. While in all other respects , we concur with and adopt the findings of the Trial, Examiner relating to Katz , we do not agree with the con- clusion of the Trial Examiner that Katz was reasonably justified in believing, on the basis of the respondent's letter of December 21, 1942, that his chances of reinstatement were no further advanced than before, and that he was not obligated, after his conversation with Taurone on December 24, to take any further steps toward securing reinstatement on January 10, 1943. Upon all the facts, we are of the opinion that the letter of December 21 , 1942, while not altogether free from ambiguity , was intended by the respondent as an offer to reinstate Katz on January 10, 1943, and that despite Katz's conversation with Taurone on December 24, 1942 Katz was remiss in not calling at the respondent's place of business on January 10, 1943, or at least in not making further inquiry of the respondent at or about that time. In view of Katz's inaction and apparent disinterest, we cannot say that the respondent after January 10, 1943, was not justified in assuming that Katz did not desire reinstate- ment. However, although Katz was negligent, it nevertheless ap- pears that he may have had cause for misinterpreting the letter of 13 N. L. R. B. v. Tovrea Packing Co., 111 F. ( 2d) 626, 629 (C. C. A. 9), cert. den. 311 O. S. 668. 14 Fort Wayne Corrugated Paper Co. v. N. L. R. B., 111 F. (2d) 869, 870-871 (C. C. A. 7) ; Mooresvalle Cotton Mills v. N. L. R. B., 110 F. (2d) 179, 182 (C. C. A. 4). EVER READY LABEL CORPORATION . 559 December 21, 1943, and may desire reinstatement. We shall there- fore direct that in the event that Katz applies to the respondent for reinstatement within 15 days after the issuance of the Order herein, the respondent shall offer him immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority and other rights and privileges. However, we shall limit the period for which the respondent shall make whole Katz for any loss of pay he may have suffered by reason of his dis- criminatory discharge, from the date of his discriminatory dis- charge until January 10, 1943, and in the event that Katz, pursuant to our Order, hereafter makes timely application for reinstatement, from a date 5 days after his timely application to the date of the respondent's offer of reinstatement:. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National. Labor Rela- tions Board hereby orders that the respondent, Ever Ready Label Corporation, New York City, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in United Photographic Employees Union, Local 451, C. I. 0., or in any other labor organization of its employees, by discharging or refusing to reinstate any of its em- ployees, or by discriminating in any other manner in regard to their hire and tenure of employment or any term or condition of their employment ; (b) Recognizing The New York Joint Council of International Printing Pressmen and Assistants Union of North America as the exclusive representative of its employees for the purpose of collec- tive bargaining, unless and until it shall have been certified as such by the National Labor Relations Board ; (c) Giving effect to its contract of May 22, 1943, with The New York Joint Council of International Printing Pressmen and As- sistants Union of North America, or to any extension, renewal, modification, or supplement thereof, or to any superseding contract which may now be in force; (d) Urging, persuading, intimidating, or coercing its employees to join the New York Joint Council of International Printing Press- men and Assistants Union of North America, or not to join United Photographic Employees Union, Local 415, C. I. 0., or to join or not to join any other labor organization; (e) In any other manner interfering with, restraining, or coerc- ing its employees in the exercise of the right to self-organization, to 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Board finds will effectuate the policies of the Act: (a) Offer David Yasgur immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges; (b) Make whole David Yasgur 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 during the period from the date of his discriminatory discharge to the date of the respondent's offer of reinstatement, less his net earnings during such period; (c) Upon application by Louis Katz within 15 days from the date of this Order, offer Louis Katz full reinstatement to his former or a substantially equivalent position, without prejudice to his sen- iority or. other rights and privileges; (d) Make whole Louis Katz for any loss of pay he has suffered or may suffer 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 during the period from the date of his discriminatory discharge to January 10, 1943, less his net earnings during such period, and by payment to him of a sum of money equal to the amount which he normally would have earned as wages during the period from a date five (5) days after his timely application for reinstatement to the date of the respondent's offer of reinstatement, less his net earnings during such. period; (e) Withdraw and withhold all recognition from The New York Joint Council of International Printing Pressmen and Assistants Union of North America as the exclusive representative of its em- ployees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment,+ or other conditions of employment, unless and until that organization shall have been certified as such by the National Labor Relations Board; (f) Post immediately in conspicuous places throughout its plant in New York City, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating: (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a), (b), (c), (d), and (e) of this Order; (2) that it will take the affirmative action set forth in paragraphs 2 (a), (b), (c), (d), and (e) of this EVER READY LABEL CORPORATION 561 Order; and (3) that the respondent's employees are free to become and remain members of United Photographic Employees Union, Local 415, C. I. 0., and that the respondent will not discriminate against any employee because of his membership or activity in be- half of that or any other labor organization; (g) Notify the Regional Director for the Second Region in writ- ing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. INTERMEDIATE REPORT Mr. Cyril W. O'Gorman, for the Board. Mr. Samuel M. Birnbaum, of New York, New York, for the respondent. Mr. David Lieberman, of New York, New York, for the Union. Mr. Max H. Frankle, of New York, New York, for the Intervenor. STATEMENT OF THE CASE Upon a fourth amended charge duly filed on May 26, 1943, by United Photo- graphic Employees Union, Local 415 (C. I. 0.), herein called the C. I. 0., the National Labor Relations Board, herein called the Board, by its Regional Director for the Second Region ( New York, New York ), issued its amended complaint dated May 27, 1943, against Ever Ready Label Corporation , herein called the respond- ent, alleging that the respondent had engaged in and was engaging in unfair labor 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 amended complaint , accompanied by a notice of hearing, were duly served upon the respondent, the C. I. O. and New York Joint Council of International Printing Pressmen and Assistants Union of North America, herein called the A. F. L.' With respect to the unfair labor practices the amended complaint alleged, in substance, that the respondent ( 1) from about November 1941 to the date of issuance of the amended complaint , disparaged and expressed disapproval of the C. I. 0.; interrogated its employees concerning their union affiliations; and .persuaded and warned its employees to join and assist the A. F. L. and to refrain from joining or assisting the C. I. 0.; (2) sponsored, maintained, and assisted the A. F. L. and, on or about May 22, 1943, entered into a closed shop contract with the A. F. L., although that organization was not the representative of the respondent's employees in the bargaining unit covered by the contract, in that the A. F. L. did not represent an uncoerced majority of the employees in such unit; ( 3) on or about October 1 , 1942, discharged David Yasgur because he engaged in concerted activities for the purpose of collective bargaining; in October and November, 1942, provided Louis Katz with less overtime employ- ment than he was entitled to, assigned him to more arduous work than he had previously performed, and, in November, 1942, discharged him, because of his union membership and activity. The respondent filed a answer dated June 11 , 1943, admitting some of the allegations of the complaint with respect to the nature of its business, but denying the commission of any 'unfair labor practices. 1 Also sometimes referred to as the Printers Union. 567900-44-vol. 54-37 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to notice, a hearing was held at New York, New York, from June 14 to 24, 1943, before the undersigned, Horace A. Ruckel, the Trial Examiner duly designated by the Chief Trial Examiner. The Board, the respondent, the C. I. O: and the A. F. L. were represented by counsel. All parties participated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses and to introduce evidence bearing upon the issues. On June 17 during the course of the hearing, the A. F. L. filed an answer in which it denied that it had been maintained or assisted by the respondent, and moved that the complaint be dismissed as to such matters. The Trial Examiner denied this motion, and granted a motion by the Board to strike certain averments of the respondent's and A. F. L.'s answers. 2 Upon the conclusion of the hearing the respondent moved to dismiss the com- plaint in its entirety, and the A. F. L. moved to dismiss those portions which pertained to the alleged assistance and support of the A. F. L. by the respondent. Rulings were reserved on both motions. They are hereby denied. The Trial Examiner granted, without objection, a motion by the Board to conform the complaint to the proof in formal matters, and a motion by the respondent similarly to conform its answer. The parties were advised that they might argue orally before the undersigned and might file briefs with the undersigned before July 8, 1943. None of the parties argued orally. Subsequently the under- signed extended to July 15 the time within which briefs might be filed. On July 13 the respondent filed a brief. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Ever Ready Label Corporation is a New York corporation having its principal office and place of business in New York, New York, where it is engaged in the manufacture, sale, and distribution of printed, gummed, paper labels. During the 6 months immediately preceding June 1, 1943, the respondent used, in the conduct of its business, materials consisting principally of paper, ink and photo engravings, to the approximate value of $120,000, of which approximately 75 per- cent was shipped to the respondent's New York City plant from points located out- side of the State of New York. During the same period the respondent shipped finished products to the value of approximately $420,000 from its New York City plant. Of these finished products approximately 40 percent was shipped to points outside of the State of New York. The respondent conceded that it was engaged in interstate commerce within the meaning of Section 2 (6) and (7) of the Act. II. THE ORGANIZATIONS INVOLVED United Photographic Employees Union, Local 415, and New York Joint Council of International Printing Pressmen and Assistants Union of North America, are labor organizations admitting to membership employees of the respondent. They are affiliated, respectively, with the Congress of Industrial Organizations and the American Federation of Labor. 2 These averments asserted, among other things , that the Board had been dilatory in conducting and in announcing the result of an election which was held among the re- spondent's employees, had wrongly determined a number of challenged votes, and had failed to conduct a run-off election. EVER READY LABEL CORPORATION- Jr63 III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion 1. The Club Ever Ready Employees Club, herein called the Club, was formed in 1935 among the respondent's employees. A constitution and by-laws were adopted which de- clared the purposes of the organization to be, among others, "to inculcate a spirit of mutual understanding with and loyalty to our employer ; to cultivate a feeling of brotherly harmony, entwining the virtues of honesty, sobriety and moral- ity ; - - - for the principle of `one for all and all for Ever Ready Label Corp.,'" and to discuss wages, hours, and other conditions of employment. Sidney Hol- laender, the respondent's president, was Honorary President of the Club. The Club remained the only labor organization in the respondent's plant up to the appearance of the'C. iI. O. in October, 1942. No contract was ever entered into between the Club and the respondent. In November 1941, however, the respondent executed a written agreement with those of its printing pressmen who had been in the respondent's employ 10 years or more. The agreement guaranteed wages for 50 hours per week, subject to the provision that when the hours actually worked per week were less than 50 in number , the pressmen would "owe" the respondent for such hours as they had been paid without work having being performed. During busy periods the pressmen were required to pay off such owed hours by working an equivalent number of hours without pay. During the summer of 1942 many of the pressmen became dissatisfied with this provision of the contract. This dissatisfaction came to a head when the respondent docked the wages of employees who did not work on Yom Kippur, September 21, including the pressmen. On September 28 the grievance com- mittee of the Club met with President Hollaender and other respondent officials, in the former's office, to discuss the matter. David Yasgur, a pressman whose alleged discriminatory discharge is hereinafter discussed, was also present. It is admitted that he had been selected by the pressmen to represent them in the matter of the wage deduction as well as to discuss the question of the guaranteed 50 hour week. Yasgur, on behalf of the pressmen, charged that the respondent was speeding up the presses, and that the 50 hour provision in the pressmen's contract had resulted in some of the pressmen owing the respondent as much as 100 hours in time. Hollaender accused Yasgur of "trying to run" the respondent's business and asked Yasgur if he thought the respondent was trying to drive a hard bargain with the employees, to which Yasgur replied that he did think so.. Both Hollaender and Yasgur became excited and Yasgur indorsed his current pay check over to the respondent in payment of a number of hours "owed" by him. Elias Salerno, president of the Club, told Hollaender that the employees were "fed up" with paying dues in the Club and asked : "Are we going to have col- lective bargaining? It (is) about time we came to an understanding;" to wliidt Hollaender replied : "Collective bargaining is a folly. There is no such thing as collective bargaining." 3 Salerno, told Hollaender that if the employees could not have collective bargaining "in the true sense of the word" the employees were "going to get an outside mediator as our collective bargaining," and Yasgur charged that the respondent did not believe in bargaining collectively. Hollaender reached for the telephone book and asked : "Do you want a union-I will get you a union," to which Salerno rejoined : "We don't want that kind. We want a union that will represent us truly." 3 This finding is based upon the testimony of Salerno and Milton Wieseltier, secretary of the Club. It was denied by Hollaender. The undersigned found Hollaender to be an evasive and unreliable witness and does not credit this denial. 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Growth of sentiment for the C. I. O. David Yasgur was discharged on October 1, under circumstances hereinafter more fully related. On October 2 he appeared at the plant with an organizer for the C. I. O. and informed the employees that an organizational meeting would be held that evening at a local hotel. A meeting of the Club which had been scheduled for the same evening was called off. Later in the day Hollaender called Salerno to his office and asked permission to speak at the scheduled meeting of the Club. Salerno told Hollaender that the meeting had been cancelled and that, instead, the employees were to meet at a local hotel "with the C. I. O. who will represent us." Hollaender sent for Taurone, the respondent's vice president in charge of production, and asked Salerno to repeat what he had said to Hollaender. Salerno told Taurone, "We will have no more meetings of the Ever Ready;- we are going to meet at the George Washington Hotel. The purpose (is) to organize a C. I. O. Union." Hollaender then declared: "I have $10,000 set aside for bonuses. You know what we are going to do? We are going to use that to fight them."' After work that afternoon, when the employees were preparing to leave for the C. I. O. meeting, Taurone appeared in the locker room and made a speech in which he advised the employees to "think it over" before they made any "drastic moves" lest they regret what they did. He offered to obtain as their represent- ative, in place of the C. I. 0., one Vogel, a .representative of the New York Employing Printer's Association who, Taurone assured the employees, was a square man." In spite of Hollaerider's threat and Taurone's pleading, approximately 65 employees,' including most of the pressmen, as well as Broschowitz, assistant press room foreman, Rothbergh, composing room foreman, and Freifield, job room foreman, attended the meeting. McDonnough, a representative of the C. I. 0., urged those present to sign up with the C. I. O. and many did so. Freifield made a speech In opposition to the C. I. O. and urged the employees not to. abandon the Club. Hollaender was informed of the events at this meeting by one of the foremen present who told him that the employees had shown "great interest" in the G. 1.,0.' On the following morning, Hollaender convened a meeting of :the press- men in his office. He stated to them that although they had a right to join any union they wished the respondent was already paying wages in excess of the union scale. He admitted while testifying that he further said that they "should select a printers union' within the craft in which they were engaged. Hollaender also took this occasion to express his resentment against Yasgur. He stated that Yasgur had participated in a strike at the plant a number of years before, and that he, Hollaender, had "buried Yasgur's wife." Hollaender, while testifying, explained this reference to Yasgur by saying that he lent Yasgur $75 to pay for funeral expenses, which Yasgur paid back within a month. Hol- laender admitted, while testifying, that he considered Yasgur an "ingrate." Hollaender's reference to Yasgur is hereinafter discussed in connection with Yasgur's discharge. 4 This finding is based upon the credible testimony of Salerno. Hollaender denied making any such statement. Taurone, who testified,' was not asked concerning it. The undersigned has heretofore found that Hollaender was not a reliable witness. The respondent employed approximately 85 employees. s According to the admission of Hollaende -e while testifying. Hollaender stated, on further examination : "I may have said I wanted the union. The fact remains I finally signed up with the union" (Emphasis applied). EVER READY LABEL CORPORATION 565 3. The appearance of the A. F. L. The suggestion of Taurone and Hollaender that; if the employees, joined a union they should join the Printers Union, was followed about the middle of October by the appearance of the Printers Union in the plant. Although the record is not entirely clear as to the circumstances surrounding the initial activity of that organization, the first distribution of membership application cards was made by Hines, at that time foreman of the composing room a On October 14, Salerno protested Hines' activities to Hollaender, is the result of which Hollaender called a meeting of the employees on the floor of the plant. Hollaender, at the request of Salerno , reprimanded Hines and stated that any foreman who had obtained signed application cards should return them to the employees who had signed them. At the same time, Hollaender went on to repeat that if the employees joined a union they should join the Printers Union. On October 19, a meeting took place in Hollaender's office attended by Hol- laender, Taurone, Wieseltier and others. During the meeting, according to the testimony of Wieseltier, Hollaender declared that if it was in his power to violate the Wagner Act he would do so. Hollaender denied making this statement. Taurone was not questioned concerning it. The undersigned credits the testimony of Wieseltier and finds that Hollaender made the declaration attributed to him. On October 22, at a meeting of the employees which Hol- laender assembled on the floor of the plant , Hollaender accused Salerno of having warned Selma Zernick, a fellow employee , not to sign up in the A. F. of L.° and stated that Salerno was "no damn good" and that he would "go the same way as Yasgur.s79 Hollaender went on to say that he was "fighting to retain" the presidency of the respondent company, that the respondent was not in a postition to sign a contract with the C. I. 0., and that he had in- vestigated McDonnough, C. I. O. representative, and had found that "McDon- nough signs a contract and he pulls a strike."' The Club was dissolved at a meeting which took place on the evening of October 22. Afterwards, some of the employees attended a meeting of the A. F. L. On November 6, pursuant to a petition filed by the C. I. 0., the Board conducted an election among the respondent's employees to determine whether they wished to be represented by the C. I. O. or the A. F. L. The result was a tie vote. 8 Murray Heller, representative of the Printers Union , testified that in the early fall of 1942 he received word from certain unnamed members of that organization among the respondent's employees that an "outside" union was endeavoring to organize the plant. Heller subsequently "talked the situation over" with these individuals at his office, and "as a result" instructed the A. F. L. attorney to appear at a conference at the Board's Regional office on October 30 where the election , hereinafter mentioned, was consented to. It is not clear what , if any, attempts to sign up members were made prior to October 30, aside from those made by Hines, related above . While the application cards distributed by Hines were not identified beyond the fact that they were "A. F. of L. cards," it is a reasonable conclusion that they were the cards of the Printers Union. s Salerno denied having so warned Zernick . Zernick testified that Salerno told her that he understood some girl in the winding department was going to be discharged, and that he wondered if it was Zernick . Zernic.c did not relate the incident to any request by Salerno that she not sign up with the A. F.. L. 10 The significance of this linking of Salerno's name with that of Yasgur, whom the respondent alleges was discharged for faulty work, is hereinafter considered in the discussion of Yasgur's case. v The finding that Hollaender made these statements is based upon the credible testi- mony of Wieseltier and Salerno contradicted by Hollaender only in that Hollaender denied saying that Salerno would "go the same way as Yasgur." 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The failure of the respondent's employees to determine upon: a bargaining representative did not put an end to the respondent's discouragement of the G. I. O. or its attempt to condition the minds of its employees in favor of the A. F. L. Hollaender, shortly prior to the employees' annual Christmas party of 1942, refused to attend and to accept a gift from the employees, as had previ- ously been his custom. He testified that this was because he had "a certain self respect, that refused me to accept anything that can't be given wholeheartedly and in the spirit of Christmas or any other day it is given." Shortly thereafter, however, Hollaender changed his mind : Q. How soon after your refusal did you consent to attend and accept the gift? A. Within 48 hours. Q. What happened within that 48 hours that caused you to change your mind? A. The committee-enlarged and embraced the representatives all over the plant, and I said then, "Gentlemen, if you can spell out sincerity in the gift I will accept it." Q. Did they tell you that the whole shop was going over to the A. F. L. at that time? A. They told me that the spirit of unanimity was progressing. The undersigned believes and finds that Hollaender's original refusal of the employees' gift was intended to impress the employees with the respondent's disappointment in the result of the election and its desire that its employees align themselves with the A. F. L. At the Christmas party Hollaender made a speech in which he expressed the opinion that "the National Labor Relations Board and Mr. McDonnough of the C. I. 0., would be much surprised to see that we are all one big happy family." Heller, an international representative of the Printers Union, testified that after the election on November 6 he maintained constant contact with the em- ployees for the purpose of organizing them. By December 28 the "spirit of unanimity" had progressed to such a point that all but a few employees had signed up with the A. F. L. On January 14, 1943, Heller wrote the respondent advising it of this fact and requesting a collective bargaining conference. Such a conference was held on January 19, at which the respondent was presented with a declaration signed by 55 employees "reaffirming" their designation of the A. F. L. and another one signed by 29 other employees "renouncing" their allegiance to the C. I. O. and "designating" the A. F. L.12 During the next several months a series of such meetings took place at which a proposed contract submitted by the Printers Union was discussed. The respondent, on advice of counsel, refused to sign a contract because of the proceedings pending before the Board." 12Most of the signatures were obtained at an A. F. L. meeting. Others, however, were obtained in the plant, some by Broscbewitz, assistant pressroom foreman. Salerno testified without contradiction that Broschewitz upon obtaining his signature said, "Eli, don't you feel better that all this enmity has passed?" 13 These proceedings consisted of the C. I. O.'s petition for investigation and certification, and the original charge in the instant case. A second amended charge was filed on March 10, amending the previous charge to include an allegation that the respondent was unlawfully conducting negotiations lookinc to the execution of a contract with the A. F. L. The original complaint was served on the respondent on May 15, together with a notice of a hearing to take place on May 27. Further proceedings in the representation ease were held in abeyance pending disposition of the complaint case. EVER READY LABEL CORPORATION 567 On May 21 a work interruption took place in the plant, characterized at the hearing as a "sit down" strike, and all but Salerno and a few other employees abandoned their work and stood around on the plant floor. At the time the strike was called, Joe Stacelis, foreman of the cutting department, approached Salerno, told him "You might as well know we are having a sit down strike," and urged Salerno to join it. Salerno refused, stating that the employees should proceed through channels provided by the Act, whereupon Stacelis charged that Salerno was "not with the men." Hollaender, on being informed of the interruption, phoned Heller who arrived at the plant and, upon the request of Hollaender, addressed the employees. He told them, in effect, that the C. I. O. had "dropped out of the picture" and that he was endeavoring to have a contract signed. Heller then reported to Hollaender that the employees would not work without a contract. In Hollaender's office the following morn- ing, one week after service of the original complaint and 5 days prior to the scheduled hearing, the respondent signed a closed shop contract with the A. F. L. On May 24, the Board amended its complaint to allege" the signing of the contract as an additional unfair labor practice on the part of the respondent. Conclusions It is clear from the above facts, and the undersigned finds, that when it became apparent that the respondent's employees had become dissatisfied with the Club, and had begun to evidence an interest in an outside organization as their bargaining representative, the respondent embarked upon a course of action designed to insure that their representative should be the A. F. L. rather than the C. I. O. The statements of President Hollaender and Taurone to the effect that the Printers Union was preferable to the C. I. O. left the employees in no doubt as to the respondent's wishes. The respondent, however, did not confine itself to a simple expression of opinion. Hollaender threatened to spend $10,000 of accumulated bonus money to defeat the C. I: O. When this and other threats proved insufficient, the respondent, through Hines, its composing room foreman, took active steps to promote the A. F. L. Hollaender's subsequent reprimand of Hines, upon Salerno's insistence, and his instructions to Hines to return any membership cards he had obtained, were accompanied by Hol- laender's reiterating that the employees should affiliate themselves with the Printers Union. After the election of November 6 the respondent plainly indicated its dis- appointment that its employees had failed to vote in sufficient numbers for the A. F. L. Hollaender's consent to attend the employee's annual Christmas party only when assured that "the spirit of, unanimity was progressing," was an open declaration that the respondent would not be content until the employees had acquisced, voluntarily or otherwise, in affiliation with the A. F. L. To insure this result the respondent, through Broschewitz, assistant foreman, himself an active proponent of the A. F. L., obtained the signatures of employees to petitions "renouncing" their application to the C. I. O. and "designating" the A. F. L. This occurred during a period when the matter of employee representa- tion was still in the hands of the Board for determination. When finally all but a few of the employees had "designated" the A. F. L., the respondent entered into collective bargaining negotiations with that organiza- tion and continued them in the face of the pending charge. of unfair labor practices. After the service of the complaint the respondent, in spite of its previously professed unwillingness to enter into any contract during the pendency of these proceedings, climaxed its series of unfair labor practices by executing a 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD closed shop contract with the A. F. L. The respondent's contention, in sub- stance, that it was influenced in doing so by a "sit down" strike of its employees, is devoid of merit. As has been found Stacelis, cutting department foreman, urged Salerno, one of the few non-strikers, to participate in the strike and upon the latter's refusal charged him with "not being with the men" ; and Hollaender, instead of himself attempting to end the strike, called in Heller, the organizer for the A. F. L., and invited him to address the employees. These, and the other facts set forth above, raise the suspicion that the respond- ent itself sanctioned, if it did not in fact initiate, the strike, in order to create a background for its subsequent signing of the contract. Assuming, however, the bona fide nature of the strike, it is clear that the respondent itself created the situation which brought it about. It cannot, therefore, plead the strike in justification of its action in signing a closed shop contract with an organization which the respondent had, from the beginning, encouraged and aided. The respondent's action in signing the contract in the face of the service of the complaint and notice of hearing, warrants the conclusion, and the undersigned finds, that the respondent thereby sought to avoid the penalty for its previous unfair labor practices and to thwart the processes of the Act by confronting the charging union and the Board with an accomplished fact. By reason of the facts set forth above, and on the record as a whole, the undersigned finds that the respondent interfered with, restrained and coerced its employees in violation of Section 8 (1) of the Act. B. The discharges Yasgur had been employed by the respondent as a pressman for 12 years, to the time of his discharge on October 1, 1942. His presence at the meeting in Hollaender's office on September 28, as a special representative of the press- men, and the events which transpired there, have been described above. It has been found that Yasgur charged that the presses were being speeded up and that the pressmen were dissatisfied with the guaranteed 50-hour week provision in their contract. As has been stated, both Hollaender and Yasgur became excited during the discussion. The respondent contends that Yasgur's charge that the respondent was speeding up the presses constituted insolence, and that it discharged Yasgur both by reason of his insolence and because he spoiled a press job. As has been found, Yasgur was the one who first attempted to enlist the employees in the C. I. O. He had been in contact with Young, an organizer for that organization, and on the evening of September 28, after the meeting in Hollaender's office, procured a number of C. I. O. membership cards from Young and brought them to the plant the next morning. He did not solicit any members however, until. September 30, the day prior to his discharge, when he asked Joe Vasta'° to join the C. I. 0., and gave Vasta about 15 cards to distribute among the pressmen. On the morning of the following day Yasgur solicited the mem- bership of Postiglione and Lafurro, two other pressmen. There is no evidence, however, that Yasgur's activities on behalf of the C. I. O. came to the attention of any of the respondent's supervisors prior to Yasgur's, discharge on October 1. The contention of the Board, and the theory on which the case was tried, is that Yasgur was discharged because of his collective activity in presenting the grievance of the pressmen at the September 28 conference. In August, Taurone, vice president in charge of production, assigned a job to Yasgur which consisted of running off a large number of labels on his press. 14 Joe Vasta was the brother of Louis Vasta, press room foreman under whom Yasgus worked. EVER READY LABEL CORPORATION 569 This was known as the Storch job. Yasgur successfully completed a trial run of 50,000 labels, which was approved by Storch. After delivery of the whole run to Storch, the latter company complained to Taurone that it was unsatis- factory. Taurone received this complaint a week or 10 days prior to the meet- ing of September 28, and proceeded to investigate it. He testified that he did not complete his investigation until September 30. On this date Stanley Hot- laender, in charge of sales, reported the matter to Hollaender and told him that Yasgur was at fault. On the same day Taurone revealed to Yasgur for the first time, that there was a complaint as to the Storch job. Hollaender called a meeting of the Club's grievance committee in his office on the the morning of October 1, attended by Taurone, Salerno, Wieseltier, and other members of the Club's grievance committee. Yasgur was not present. Holiaender told the grievance committee, according to his own testimony, that they "had witnessed the insolence of this man Yasgur-four days ago ; that his remarks were insulting; that they were intolerable ; that the head of a house who had to run a profitable business could not allow a situation to continue where a man characterized the business as too well managed," that the Storch job was "a new type of job" which was "absolutely wrong and rejected" and that Yasgur should be discharged. Salerno protested that, although Yasgur might have spoiled the Storch job, he was not an incompetent pressman, that he had been with the respondent for 12 years, and that if he was discharged the respondent would have a Board case on his hands. Hollaender asked the em- ployees present to "back him up," before the Board and stated that if Yasgur was not "out of here by Monday," he, Hollaender, would not "come back to Ever Ready." That noon, Taurone told Yasgur that he was discharged be- cause of the Storch job. Approximately one half of the labels run by Yasgur were re-run by another pressman after Yasgur's discharge. The cost to the respondent involved in adjusting the Storch complaint was approximately $300. It is admitted that the Storch job was a new type of job which Yasgur had never before done. Yasgur did not deny that the job was spoiled to the extent claimed by the respondent, but testified that the spoilage was due to the paper stock which was full of "static." The undersigned finds that, whatever the cause, Yasgur was responsible for spoiling the job. Jobs other than the Storch job, however, had previously been spoiled without the pressmen responsible for 'them having been discharged. Wieseltier testified without contradiction, and the undersigned finds, that approximately two weeks prior to the hearing pressmen Lofarro and Heckman spoiled a job known as the Rapidal job, without being discharged. The damage amounted to approximately $800, but Lofarro and Heckman were perniiitted to is-run the job on their own time. On a previous occasion another pressman, Vallaro, spoiled the Valve Pilot job, resulting in a loss of several hundred dollars. He was not discharged. At the hearing, when asked as to the reason for Yasgur's discharge, Hollaender testified as follows : Q. I believe you testified that you had decided to discharge Mr. Yasgur before Mr. Stanley Hollaender or Mr. Allen-reported on the Storch job? A. Well, the fact remained to my mind, I resented his insolence-through the years which was cumulative, and in my own mind I had decided to get rid of him, and the thing that capped the climax was the ruined order- Q. Did you not testify yesterday that you had decided to discharge before- you got the report from Stanley Hollaender? 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. I am confirming it ; I am not denying it. Q. You are confirming it? A. That is right. Q. So that you would have fired Yasgur without the Storch job being involved? A. Obviously yes, with the accumulation of a number of things added up.* Q. So that even without the Storch job-Mr. Yasgur was slated to be fired by you, is that right? A. Maybe yes and maybe no. I will not commit myself on the issue. The undersigned believes and finds that Hollaender, as the result of the Sep- tember 28 meeting, had decided to get rid of Yasgur at the first available op- portunity, and that Yasgur's spoiling the Storch job was only the excuse, and not the reason, for his discharge on October. 1. Conclusions Admittedly, Yasgur attended the meeting on September 28 as the chosen repre- sentative of the pressmen in the presentation of their grievances with respect to the 50-hour provisions of their contract and the nod-payment of wages on Yom Kipper. It was a meeting for the purpose of bargaining collectively with the respondent for the adjustment of these grievances. The respondent's conten- tion that Yasgur was insolent on this occasion is not supported by the record. Hollaender, according to his own admission, found Yasgur lacking in respect only because he charged that the respondent was "too well managed," a charge which in its general implication is implicit ii most attempts of employees to obtain more favorable working conditions for themselves. The scant respect in which Hollaender held the collective bargaining process is revealed by the record as a whole, as well as by his declarations at the meeting in question that there was "no such thing" as collective bargaining, and that col, lective bargaining was a "folly." Hollaender's linking of Salerno's name with that of Yasgur, only two days following Yasgur's discharge, and his stating that Salerno would "go the same way" as Yasgur, is significant. Salerno was repri- manded, purportedly, for "coercing" Zernick into joining the C. I. 0., a matter which, even if true, had no connection with Yasgur if, as the respondent contends, Yasgur was discharged for spoiling the Storch job. It is clear that what Hollaender objected to were the collective activities of both Salerno and Yasgur. Similarly, Hollaender's reference to his having buried Yasgur's wife, made at the meeting in Hollander's office two days after Yasgur's discharge, his statement that Yasgur had gone on strike several years previously, and his admission while testifying that he considered Yasgur an "ingrate," are pointless if the spoiling of the Storch job was the real reason for Yasgur's discharge. They have meaning only when considered in connection with Yasgur's presentation of the pressmen's grievances. The undersigned finds that the respondent discharged Yasgur on October 1, 1942, because of his presentation of these grievances. Louis Katz Louis Katz entered the respondent's employ on December 22, 1941, as a timekeeper. His principal task was to keep a record of time spent on each job performed in the respondent's press room, as well as in the die cutting, 16 Hollaender did not specify what things prior to the meeting on September 28 he had in mind. There is no evidence in the record that Yasgur had been "insolent" on any previous occasion. EVER READY LABEL CORPORATION 571 job, paper cutting, and winding departments. Katz is and has been for many years completely paralyzed in his left arm and partially so in both legs. Katz was separated from his employment on November 24, 1942. The re- spondent contends that he was only laid off on that date. The complaint alleges that he was discriminatorily discharged and that his discharge was preceded by his assignment to more arduous work than he had previously performed. In September 1942, shortly prior to the beginning of organizational activities by the C. I. 0., Stanley Hollaender, the respondent's sales manager, called Katz to his office and asked him if he would be interested in taking a position in the sales department.16 Katz replied that he was, and Stanley Hollaender promised him that as soon as an opportunity arose he would endeavor to make a place for him. Shortly after Katz's interview with Stanley Hollaender, Katz obtained a loan of $75 from the respondent to be repaid at the rate of $5 each pay day. Katz joined the C. I. O. at its first meeting on October 2. Lk few days later Sacks, plant superintendent, approached Katz, according to the latter' s testi- mony, and told him that Sidney Hollaender had noticed Katz. walking down the street with some of the factory employees and that he, Hollaender, did not think it wise for Katz to associate with them because Katz had "a future" with the respondent. Sacks added, according to Katz, "It might affect you If you were to bother with them." Sacks denied making the remarks attributed to him by Katz. The undersigned found Sacks to be a shifty and evasive wit- ness and he does not credit this denial. He finds that Sacks made substantially the statements attributed to him by Katz. On October 15, Stanley Hollaender again called Katz to his office and told him that there was a place for him in the sales department. Katz told Hollaender that since their first conversation with respect to such a position he had joined the C. I. 0., that an issue had arisen with respect to the representation of the re- spondent's employees, that he did not want to accept a job in the office until that issue was settled, and that his loyalty was to the men in the factory."' Stanley Hollaender immediately reported this conversation to Sidney Hollaender and within an hour Katz was handed a letter, signed by Sidney Hollaender, which read, in part, as follows : I was astounded when Mr. Allen18 told me that you didn't want the job in the Sales Department now if, it was offered to you because you had some sort of loyalty to the boys. I don't know what you mean by "loyalty to the boys" and I am not inter- ested. I have made an opportunity for you which i consider an advancement. You are to take that position on Monday morning, or you are to hand me your resignation immediately on receipt of this letter. A day or two after the delivery of the above letter to Katz, Kleiner, the respond- ent's treasurer, called Katz to his office and told him that Sidney Hollaender wanted Katz to repay immediately the entire balance due on the $75 loan which Katz had obtained the previous month. Katz protested that he was making 16 Stanley Hollaender testified that he was motivated by a favorable impression which the respondent had formed of Katz's background and because of some previous selling experience which Katz had had. Sidney Hollaender during the previous April, told Kats that he had "too much intelligence to waste on the clock," and, promised that he would speak to Stanley Hollaender about having Katz transferred to the sales department. 17 The testimony of Katz and Hollaender as to this conversation is not essentially in conflict, with the exception that,, according to Katz, the latter also advanced as a reason for not accepting the proffered job the reason that he believed that, if the employees were organized, he could earn more money as a timekeeper than as one of the sales force. 18 Stanley Hollaender was customarily referred to as Mr. Allen. 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the payments as agreed, but offered to turn over his pay checks to the re- spondent until the loan was repaid. Kleiner, after conferring with Hollaender, accepted Katz's offer. During the course of this conversation , Katz, according to his uncontradicted 19 testimony , which the undersigned credits, asked Kleiner if it was the "usual practice for any person working at Ever Ready firm, if he thought or spoke his own mind, that he would have to take the sort of licking I was beginning to take at the plant," to which Kleiner replied : "That is the way things go around here . . . you could have avoided all this if you had been a smart fellow." The undersigned finds that by this statement Kleiner had reference to Katz's action in joining the C. J. O. In spite of Sidney Hollaender's warning to Katz to accept the proffered posi- tion in the sales department or resign his job, Katz continued for about 3 weeks thereafter at his usual duties on the time clock. On October 20 Sidney Hollaender called Katz to his office, together with Ralph Taurone, the respondent 's vice- president. As Katz entered, Hollaender, without preliminaries, shouted,20 "You are no God damn good ; you are a son of a bitch ; you are the scum of the earth.- I take fellows like you, I pick them out of the gutter and give them a chance to make a living; I went down to the Crippled Boys' Association21 and gave you a chance to make a living.-Your mind is rotten through and through.-You are not only crippled physically, you are crippled mentally. The only reason I am keeping you here is because I have to. I want you tq walk out of this office and keep out of my sight as long as you can." Katz continued to perform his duties as timekeeper until the first part of November when Sacks told him that, for the time being, the respondent could not use him on the time clock, and directed him to report to the shipping de- partment to assist in wrapping packages . Katz protested that he would only be wasting his time at such work because he could not wrap a package with one arm. Sacks, however, directed Katz to do as he was told. Katz stayed in the shipping department for 2 days.22 Sacks then transferred him to the typing department. His duties there consisted of typewriting labels. Because of a lack of any previous experience as a typist, as well as by reason of his crippled condition , Katz was able to use only one finger of his right hand. After 2 days in the typing department Katz was again transferred, this time to Sacks' office, where he did clerical work and answered the telephone. A week later Sacks transferred Katz back to the time clock. On the occasion of each of the transfers above described Katz asked Sacks the reason for the transfer but Sacks gave him none . On each job Katz con- tinned to draw the same wages he had drawn as a timekeeper. On November 24, after Katz had worked a few days at his old job on the time clock, Taurone called him to his office and told him that he was being ss Kleiner was not called as a witness. 20 This finding is based upon the credible testimony of Katz, uncontradicted either by Sidney Hollaender or Ralph Taurone, both of whom testified. 21 Sidney Hollaender testified on direct examination that he had hired Katz. Katz testified that he was hired by Sacks through an employment office maintained by the In- stitution for Crippled and Disabled , and Sacks corroborated Katz 's testimony in this re- spect . Sidney Hollaender did not make Katz's acquaintance until some time after he was hired. 21 The work expected of package wrappers, including Katz, was for the most part that of wrapping packages with paper and tying them with string, a task which necessitated the use of both hands. It *as physically impossible for Katz to do this work . As a result, most of his time was spent sitting at a desk and answering the telephone. EVER READY LABEL CORPORATION 573 laid off. Asked for the reason, Taurone replied that the respondent had no more use for the time clock and was going to discard it.2a Taurone told Katz to come back later in the week and he would let him know when he could resume, work. Katz returned three times within a period of 2 weeks. On the first two occasions Taurone told him to come back again within a few days. Katz testified that on the third occasion he told Taurone that he believed he was being given "the run around," and asked Taurone to tell him whether he was in fact discharged so that he might file his application for unemployment' insurance. Taurone, according to Katz's testimony, replied : "Well, since you put it that way, you are fired." Taurone denied, while testifying, that he made any such statement. The undersigned credits Katz's testimony as against that of Taurone, and finds that Taurone told Katz that he was discharged. On. December 4, the C. I. O. filed its charge in this proceeding, alleging, among other things, that the respondent discriminately discharged Katz. The charge was investigated by John Larkin, Field Examiner attached to the Board's Regional Office. On December 21 the respondent wrote Katz as follows : In going over. the Christmas list prepared by Mr. Hollaender two weeks ago,• we find your name listed and alongside of it an indication that ten dollars is to be given to you. So I'm enclosing the check, wishing you the Compliments of the Season, from the Management of Ever Ready. We are making plans shortly after the first of the year that will involve a change in time-keeping, and I think by January 10, you'll be able to-report back to your job. Please acknowledge receipt and advise whether we may expect you then. On the same date the respondent, over Sidney Hollaender's signature, wrote Larkin a letter which, after setting forth verbatim the letter to Katz, went on to - state : - I give you this, Mr. Larkin, to indicate that Katz is on our payroll ; that he's on our Christmas list; that the job will be open for him on January 14; that there is such a thing in business as a legitimate layoff. Louis Katz was never discharged, and both Mr. Taurone and I told you so. I just give you this letter for the record. Katz met Taurone at a bank on December 24, when Katz was cashing the check, and Taurone inquired if Katz was ready to come back to work. Katz replied that he was ready to return whenever he was asked to do so. Katz did not otherwise acknowledge receipt of the respondent's letter of December 21, nor did he present himself at the respondent's place )f business on January 10 as the respondent contends he should have done. He testified that he did not believe it necessary to reply in -writing to the respondent's letter, in view of his conversation with Taurone, and that he considered the letter to be merely an inquiry as to whether he would come back to work when, and if, called. za When Katz was first removed as timekeeper his place was taken by another employee. The time clock continued, to be operated in the press room for several weeks after Katz was separated from his employment on November 24. Sacks testified on cross-examination that the respondent then "went back to our old system of timekeeping." It was not clear from the record what this system was. That it included operation of the clock, however, is shown by the testimony of Sacks that the clock was removed from the press room and installed in the winding department where it was used to check time records in the same manner in which such records had formerly been checked in the press room, and his further testimony that in February or March, 1943, although the regular use of the clock was abandoned, it continued to be used on certain jobs. The respondent did not specifically advance, as a reason for Katz's alleged layoff that the job of timekeeper was abolished. It has been noted that Katz, while timekeeper, clocked the jobs in the winding department as well as in the press room and other departments. 574 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD Conclusions It has been found above that Taurone, on the occasion of Katz's last visit to the respondent's plant in search of employment, told Katz that he was discharged. By reason of this, as well as by reason of the other findings above made, the undersigned finds that the respondent's contention that Katz was not discharged but only laid off, to be without merit. The respondent's letter of December 21 did not constitute an unequivocal offer of employment. Katz, who several times during the month of December had applied for work, only to be told to come back again, reasonably could have believed that his chances for employment, on the basis of this letter, were no further advanced than before, and that he was not obligated, particularly after his conversation with Taurone on December 24, in which he again expressed his willingness to return when called, to take any further steps in this direction. Moreover, this letter was preceded more than 2 weeks by the filing' of the charge alleging the discriminatory discharge of Katz. Larkin had already interviewed the respondent concerning the matter. \In view of these facts, the respondent's letters to Katz and Larkin, the latter setting forth .the former "for the record," were self-serving documents which the undersigned finds were designed as a device to obscure the issues and to assist the respondent in building a defense to the discharge.24 Assuming, however, that the respondent only laid off Katz, its action in so doing was no less violative of the Act if motivated by Katz's union affiliation: With respect to its motivation the respondent, in its brief, contends that it was the respondent's belief that the position of timekeeper "involved special loyalty to management," and that Sidney Hollaender "doubted Katz's honesty if he wished to remain because of `loyalty to the boys."' This latter contention is unsupported by the record. Hollaender admitted while testifying that he had no reason to doubt Katz's honesty in the performance of his duties. In addition, the respondent's letter of October 15 stated that it was "not interested" in Katz's loyalty to the employees , and expressed dissatisfaction with Katz only because he refused to take a position in the sales department which the respondent considered an advancement. The contention is also contradicted by the respondent's action In re-assigning Katz to the time clock before discharging him. Finally, the re- spondent's claimed offer of reemployment, set forth in its letter of December 21, referred to the reemployment of Katz at his previous job as timekeeper.` The undersigned believes it clear that the reason advanced for the alleged lay- off of Katz was an afterthought , and that the real reason is to be found elsewhere. It is clear from the respondent's letter of October 15 that President Hollaender strongly resented Katz's action of joining the C. I. 0.28 and that he considered his 24 The letter to Larkin misstated the effect of the respondent's offer to Katz. Whereas the letter to Larkin stated categorically that Katz 's job would be open to him on January 10, the letter to Katz merely stated that the respondent "thought" that Katz would "be able to report" on that date. 25 The reference to "a change in timekeeping," Indicates either that the method of keep- ing time which was in effect before Katz 's -discharge was to be resumed, or that some other change in the current method was contemplated . In either event, Katz was to do time- keeping, otherwise ,the reference to a change in timekeeping as a condition precedent to Katz's return, and the reference to "your job," both become meaningless. 26 The respondent 's brief states : "Sidney Hollaender denied that he knew of Katz' affil- iation when he was transferred and laid off." This is not supported by the record. Sidney Hollaender testified on direct examination as follows : Q. Were you prompted to take him off that [the time clock ] because of his member- ship in the C. I. 0.2 A. I was not. EVER READY LABEL CORPORATION 575 loyalty to his fellow employees as disloyalty to the respondent and to Hollaender personally. The respondent's subsequent action in. calling its loan of $75 to Katz, and Hollaender's violent diatribe of October 20, were not only wholly unrelated to the respondent's subsequently claimed belief in the incompatibility of a posi- tion as timekeeper with union membership, but revealed the extent of the re- spondent's aversion to the C. I. O. and of its resentment of Katz's membership therein. Hollaender's personal humiliation of Katz on October 20 was followed by the latter's transfer first to the shipping department, then to the typing department, and then to Sack's office, without giving Katz any reason therefor. In its brief, the respondent asserts that "since no position proved suitable-the respondent laid him off." The inference that the respondent transferred Katz from place to place in an attempt to find suitable employment for him, and, failing to find it, laid him off, is not warranted by the record. President Hollaender, on whose orders these transfers were made, knew that it wag a physical impossibility for Katz either to wrap packages or to operate a typewriter. The undersigned finds that the several transfers of Katz were made because of his membership in the C. I. O. He believes and finds that they were part of a calculated course of con- duct on the part of the respondent to humiliate Katz and to force his resignation, in the hope of avoiding the penalties imposed by the Act. Failing in this purpose, the respondent, on November 24, 1942, discharged Katz under the pretense of lay- ing him off. The undersigned finds that the respondent discharged Katz, and thereafter refused to reinstate him, because of his membership in and activity on behalf of the C. I. O. The undersigned concludes and finds that by its discharge and refusal to re- instate David Yasgur and Louis Katz the respondent discriminated in regard to their hire and tenure of employment, thereby discouraging membership in the C. I. O. and interfering with, restraining and coercing its employees in the ex- ercise of the 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 Having found that the respondent has engaged in and is engaging in unfair labor practices, the undersigned will recommend that the respondent cease and desist therefrom and take certain affirmative action which the undersigned finds will effectuate the policies of the Act. It has been found that the respondent 'discharged and refused to reinstate David Yasgur and Louis Katz for the reason that they 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 David Q. Up to the time you found out about his loyalty, this so called statement of loyalty to the boys, did you know that he was a member of the C. I. 0.1 A. I did not. Bence, by clear inference , Sidney Hollaender knew of Katz's union membership on October 15, a date preceding by about 2 weeks Katz's removal from the time clock and his discharge by more than 5 weeks. As has been found, Sidney Hollaender derived this information from Standley Hollaender. 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Yasgur and Louis Katz immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges. It will be further recommended that the respondent make whole David Yasgur and Louis Katz for any loss of pay they may have suffered by reason of the discrimination against them by payment to each of them of a sum of money equal to that which he would normally have earned as wages from the date of his discharge to the date of the respondent' s offer of reinstate- ment, less his net earnings 27 during said period. It has been found that the respondent aided, encouraged, and assisted the A. F. L. by various unfair labor practices. In order to restore the status quo and to permit the employees full freedom in self-organization, without hindrance by reason of the respondent's unfair labor practices, the undersigned will recom- mend that the respondent withdraw recognition from the A. F. L. as the exclu- sive representative of the respondent's employees for the purposes of collective bargaining unless and until that organization shall have been certified as such by the Board. In addition, it has been found that the closed shop contract of May 22, 1943, was made with a labor organization which has been assisted by the respondent's unfair labor practices. The undersigned will recommend that the respondent cease and desist from giving effect to that contract as well as to any extension, renewal, modification or supplement thereof, or any superseding contract which may now be in force. Nothing in these recommendations should be taken to require the respondent to vary those wage, hour, and other such substantive features of its relations with the employees themselves which the respondent may have established in the performance of the invalid contract as extended, renewed, modified, supplemented or superseded. Upon the basis pf the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. United Photographic Employees Union, Local 415, affiliated with the Con- gress of Industrial Organizations, and New York Joint Council of International Printing Pressmen and Assistants Union of North America, affiliated with the American Federation of Labor, are labor organizations within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of David Yasgur and Louis Katz, thereby discouraging membership in United Photographic Employees Union, Local 415, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 3. By interfering with,. restraining and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in unfair labor practices within the meaning of Section 8 (1) of the Act. 4. The aforesaid labor practices are unfair labor practices within the meaning of Section 2 (6) and (7) of the Act. 27 By "net earnings" is meant earnings less expenses, such as for 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 discharge and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer- ica, 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. EVER READY LABEL CORPORATION 577 RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, the undersigned recommends that the respondent, Ever Ready Label Corporation, New York, New York, its officers, agents, successors and assigns shall : 1. Cease and desist from : (a) Discouraging membership in United Photographic Employees Union, Local 415, 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 or tenure or any terms of employment ; (b) Recognizing New York Joint Council of International Printing Pressmen and Assistants Union of North America as the exclusive representative of its employees for the purpose of collective bargaining unless and until that organiza- tion shall have been certified as such by the National Labor Relations Board ; (c) Giving effect to its contract of May 22, 1943, with New York Joint Council of International Printing Pressmen and Assistants Union of North America, or to any extension, renewal, modification or supplement thereof, or to any super- seding contract which may now be in force; (d) Urging, persuading, intimidating, or coercing its employees to join New York Joint Council of International Printing Pressmen and Assistants Union of North America, and/or not to join United Photographic Employees Union, Local 415, or to join or not to join any other labor organization of its employees; (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid and 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 David Yasgur and Louis Katz immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges ; (b) Make whole David Yasgur and Louis Katz for any loss of pay they may have suffered by reason of the respondent's discrimination against them, in the manner set forth in the Section entitled "The remedy," above ; (c) Withdraw and withhold all recognition from New York Joint Council of International Printing Pressmen and Assistants Union of North America, as the representative of its employees for the purpose of dealing with it concern- ing grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until that organization shall have been certified as such by the National Labor Relations Board. - (d) Post immediately in conspicuous places throughout its plant in New York, New York, and maintain for at least sixty (60) consecutive days from the date of posting, notices to its employees stating: (1) that the respondent will not engage in the conduct from which it is recommended that it cease and desist in paragraph 1 (a), (b), (c), (d), and (e) of these recommendations; (2) that it will take the affirmative action set forth in paragraph 2 (a), (b), and (c) of these recommendations ; and (3) that the respondent's employees are free to become and remain members of United Photographic Employees Union, Local 415, affiliated with the Congress of Industrial Organizations, and that the respondent will not discriminate against any employee because of his membership or activity in behalf of that labor organization; 567900-44-vol. 54-38 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) Notify the Regional Director for the Second Region in writing within ten (10) days from the receipt of this Intermediate Report, what steps the respond- ent has taken to comply therewith. It is further recommended that unless on or before ten (10) days from the receipt of this Intermediate Report, the respondent notifies the Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 2-as amended, effective October 28, 1942-any party may within fifteen (15) days from the date of the, entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, 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 from the date of the order transferring the case to the Board. HORACE A. RucuEL Trial Examiner Dated August 20, 1943.