National Container Corp.

In the Matter of NATIONAL CONTAINER CORPORATION and UNITED WHOLESALE & WAREHOUSE EMPLOYEES OF NEW YORK , LOCAL 65, C. I. O. ' and INTERNATIONAL BROTHERHOOD OF PULP, SULPHITE & PAPER MILL WORKERS, U. S. CORRUGATED WORKERS UNION, LOCAL' 444, AFFILIATED WITH THE A. F. of L., PARTY TO THE CONTRACT Case No. 2-C-3406.-Decided July 22, 1944 Messrs. James C. Paradise and William R. Little, for the Board. Messrs. Saul and Marshall M. Bernstein,, and Mr. Christopher W. 'Hoey, of New York City, and Mr. Milton M. Eisenberg, of Brooklyn, N. Y., for the respondent. Messrs. Joseph Padway and Robert A. Wilson, of Washington,•D. C., for the A. F. L. , Messrs. William?. Karlin, and Leo Greeinfaeld, of New York City, for Local 444. . Mr. Eugene Cotton, of Washington, D. C., for the C.-I. O. Messrs. David Livingston and Robert Burke, of New York'City, for Local 65. Messrs. Louis Lib bin and Leon Novak, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE,CASE Upon charges and amended charges duly filed on' January 9, 19471, and on various dates thereafter, by United Wholesale & Warehouse Employees of New-York, Local 65, C. I. 0., herein called Local 65, the National Labor Relations Board, herein called the Board, by its Regional Director for the Second Region (New York City), issued its complaint dated October 26, 1942, against National Container Corporation, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning, of Section 8 , (1), (3), and (5) .and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies' of the complaint and notice of hearing thereon were duly served upon the respondent, Local 65, 57 N. L. R. B., No. 102. 565 566 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD Corrugated & Fibre Workers Union, Local 411, International Brother- hood of Pulp, Sulphite' & Paper Mill Workers, A. F. of L., herein called Local 411, and International Brotherhood of Pulp, Sulphite & Paper Mill Workers, 'U. S. Corrugated -Workers Union, Local 444, ,affiliated with the A. F. Nof. L., party to the contract, herein called' Local 444. With respect, to the unfair labor practices, the complaint, as amended, alleged in substance : (1) that on or about January 24, 1941, and at all times thereafter, a majority of the employees in an appro- priate unit had designated Local 65 as their bargaining representative, and that on or about that date and at all times thereafter, respondent refused and continues to refuse to bargain collectively with Local 65 as the representative of said employees; (2) that the respondent dis- criminated in the hire, tenure, and conditions of employment of a number of its employees by discharging Ira Sugarman on or about January 8, 1941, and Melvin Schwartz on or'about January 31, 1941; by discharging, locking out, and refusing to employ 5 named em- ployees on or about March 13, 1941, 47 named employees on or about March 14, 1941, and 21 named employees on or about March 20, 1941; by discharging and refusing to reinstate 3 named employees on or about March 14, 1941; and by demoting Harry Davis to an inferior position on or about March 10, 1941; (3) that on or about February 1 and March 13 and 20,-1941, the employees at the respondent's Long island City plant ceased work concertedly and went on strike, and that the said strikes were caused and prolonged by the unfair labor prac- tices of the respondent; (4) that thereafter the respondent refused to reinstate 5 named employees to their former or substantially equivalent positions upon application, for the reason that they had assisted or become members of Local 65, had participated in the strikes above set forth, and had refused to work during said strikes or had refused to join or assist Local 411; (5) that the respondent from on or about January 1, 1941, vilified, disparaged, expressed disapproval of -and ridiculed 'Local 65, its members, 'officers, purposes, and activities; 'interrogated its employees concerning union affiliation and activities; urged, persuaded, threatened, and warned its employees to refrain from assisting, becoming members of, or remaining members of Local 65; and that by the above and various other enumerated acts engaged in a -planned and continuous course of conduct designed to interfere with the rights of the employees to -self-organization and collective bargaining; and (6) that on or about September 24, 1941, the respond- ent entered into a collective bargaining agreement with Local 444 relating to terms and conditions of employment and requiring mem- bership in Local 444 as a condition of employment; that Local 444 was sponsored, maintained, assisted, or supported by the unfair labor NATIONAL CONTAINER CORPORATION a , 567 practices of the respondent and was not then the representative of an uncoerced majority of the employees in the collective bargaining unit, covered by such agreement , by reason whereof the agreement or any renewal thereof is invalid. Under date of November 21, 1942, the respondent filed an answer, admitting certain allegations as to its 'business and denying that it had engaged in the unfair labor practices alleged. Further answering, the respondent averred affirmatively that its contract with Local 444 was a valid and existing obligation; that prior to April 4, 1941, all con- troversies or disputes existing on that date between the respondent and Local 65 were settled ; and that by reason of the said settlement the instant proceeding is barred. Under date of November 19, 1942, Local 444 filed an answer denying the commission of unfair labor prac- tices by the respondent and averring affirmatively that prior to Sep- tember 24, 1941, the employees in the appropriate unit in the respond- ent's plant renounced and terminated 'any right, power, or, authority of Local 65 to act as, their exclusive representative for the purposes of collective bargaining and designated Local, 444 as such representative; and that on or about September 24, 1941 , Local 444 and the respondent entered into a valid, 'subsisting, and lawful collective agreement which is in full force and effect. Pursuant to notice, a hearing was held at New York City, from January 14 to April 15, 1943, before Gustaf B. Erickson, the Trial Examiner duly designated by the Chief Trial Examiner. The Board, the respondent, and Local 444 were represented by counsel and Local 65 by a representative. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to intro- duce evidence bearing on the issues. At the beginning of the hearing, counsel for the Board. moved to amend paragraph 4 of the complaint so as to allege that Corrugated & Fibre Workers Union, Local .411, International Brotherhood of Pulp, Sulphite & Paper Mill Workers, A. F. of L., is a labor organization within the meaning of Section 2 (5) of the Act; to include in paragraph 20 of the complaint the names of Joseph M. Valentine and Stephen Arvay; and to correct the spell- ing of names of employees listed in the complaint. The Trial Exam- iner granted the, motion without objection by any of the parties. During the course of the hearing and at the, close of the Board's case, counsel for the respondent and counsel for Local 444 made various motions to dismiss certain allegations in the complaint , to strike certain testimony and exhibits , and to dismiss the entire complaint. The Trial Examiner denied these motions. At the close of the hearing these motions were renewed. - The Trial Examiner deferred ruling upon the renewed motions and thereafter denied them in his Inter- ' Local 411 did not appear. 568, ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD' mediate Report. At the close of the hearing, counsel for the Board moved to conform the pleadings to the proof as to informal matters. The motion was granted by the Trial Examiner. During the course of the hearing, the respondent and Local ' 444 moved to consolidate this proceeding with another proceeding,2 which had 'been instituted by the respondent on December 4, 1942, by the filing with the Board's, Regional Office at New York, of a Petition for Investigation and Cer- tification of Representatives pursuant to, Section 9 (c) of the Acts The Trial Examiner reserved for the Board's determination a'ruling upon the said motion. ' The motion is hereby denied. During the course of the hearing, the Trial Examiner made rulings on other motions and on objections to the admission of evidence. The Board has reviewed all of the rulings of the Trial Examiner and finds that no prejudicial, error was committed. The rulings are hereby affirmed. After the hearing, the respondent, Local{ 444; and counsel for the Board filed briefs with the Trial Examiner. On July 30, 1943, the Trial Examiner issued his Intermediate Re- port; copies of which were duly served on all the parties, in which he found that the respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the Act, and recommended that the respondent cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. 'Thereafter, the respond- ent and Local 444 filed exceptions to the Intermediate Report and briefs in support of their exceptions . Pursuant to notice, a hearing for the purpose of oral argument was held before the Board in Wash- ington, D.- C., on January 18, 1944. The Board has considered the exceptions and briefs filed by the respondent and Local 444 and finds that the exceptions are without merit insofar as they are inconsistent with the findings, conclusions, and order hereinafter set forth. In their exceptions and supporting briefs, the respondent and Local 444 contend that the complaint should be dismissed in its entirety because\of the limitation imposed upon the Board's use of its funds.4 The Comptroller General of the United States has' ruled in a' series of opinions 5 construing the 1944 limitation, that the appropriation of the Board was not available for use in connection with a complaint 2 2-RE-50 8 The petition was thereafter dismissed by the Regional Office on February 26, 1943. 4 See The Act making appropriations for the Department of,Labor , the Federal Security Agency, and related Independent Agencies for the fiscal years 1944 and 1945, Public Law 135, 78th Cong., 1st Sess. ; Public Law 373, 78th Cong., 2nd Sess. The pertinent provision in the current Appropriations Act states : No part of the funds appropriated in this title shall be used in any way in connection with a complaint case arising over an agreement , or a renewal thereof, between man- agement and labor which has been in - existence for three months or, longer without complaint being filed . . . See 13 L. R. R 236 and 14 L R R. 251-6. NATIONAL CONTAINER CORPORATION 569 case charging assistance to a union in,violation of Section 8 (1) of the Act and a refusal to bargain in violation of Section 8 (5) where there was involved an agreement between management and labor which had been in existence for 3 months or longer without charges being filed with the Board. In' our view of the above interpretations of the 1944 Appropriations Act,.which are also applicable to the cur"rent limitation as here-involved, the contention of the respondent and Local 444 to the effect that the complaint herein be dismissed in its,entirety is without merit. The, complaint alleges violations by the respondent of Section 8 (1), (3) and (5) of the Act. Those'allegations which charge the respondent with rendering assistance to Local 444 within the meaning of Section 8 (1) of the Act and with refusing to. bargain with Local 65 within the meaning of Section 8 (5), clearly appear to involve and affect an existing agreement' between the respondent and Local' 444, which was entered into 3 months or more prior to the filing of charges with the Board. Under the circumstances herein, and without passing on their merits, we shall dismiss those allegations of the complaint. We reach a different conclusion, however, with respect to the re- maining_ allegations of the complaint. The.findings hereinafter made that the respondent violated Section 8 (1) of the Act are based upon the activities of officials and supervisory employees of the respondent in disparaging and expressing hostility toward and disapproval of Local 65 and in rendering assistance to Local 411, an organization with which the respondent had no contractual relations. This is the type of activity upon which we customarily predicate an independent find- ing of violation of Section 8 (1). Similarly, the respondent's viola- tions of Section 8 (3), found below, consist of the discharge; demotion, lock-out and failure of reinstatement of various employees because of their union membership and activities. This is the usual type of ' discrimination upon which we base findings of violation of Section 8 (3). We find that the respondent's violations of Section 8 (1) and (3), as outlined above, are not dependent upon or"affected by, and are distinct and severable from the alleged unfair labor practices under Section-8 (1), dealing with assistance to Local 444, and Section 8 (5) of the Act, and are in nowise related to, the contract between the re- spondent and. Local 444. Plainly, therefore, insofar, as the case ,embraces unfair labor practices within the meaning of Section 8 (1) and (3)'of,the Act, which do not involve an agreement as aforesaid, it is not "a complaint case arising over an agreement between manage- ment and labor," and we consequently see no reason why we should not proceed with these portions of the complaint." See Matter of Greenville Steel Car Company, 54 N. L. R. B. 608. 570 DECISIONS. OF NATIONAL LABOR RELATIONS BOARD ,Upon the entire,record in,the case, the Board. makes, the following': FINDINGS OF FACT F; I " T. THE BUSINESS OF TIIE RESPONDENT National Container Corporation, incorporated in.Delaware in 1928, has its main office,and the plant involved in this proceeding at 30-01. Review ,Avenue, Long Island City, New, York. It is engaged , there in the manufacture of craft pulp, and' paper and corrugated boxes., It is affiliated with , the Anchor. ,Container Corporation and the Air. Depot Realty Corporation, both of New, York ;City, with Corru sated Craft Containers, Inc., of California, and National Turpentine & Pulp Wood Products Corporation of Florida. The' principal materials purchased by the corporation are wood,,paper, tape, and starch: Dur- ing each of the years 1941 and 1942 such materials, valued in excess of $100,000, were purchased; by the Long, Island City plant, about 90 -percent of which was shipped to said plant from points outside the State of New York. During each of said years the respondent shipped from the Long Island City plant finished products,, valued in excess of $100,000, of which about 75 percent was shipped to points outside 'the State of New York. The respondent admits that it' is engaged in commerce within the meaning of the Act. H. THE ORGANIZATIONS INVOLVED United; Wholesale & Warehouse Employees of New York, Local 65, C. I. 0., and International Brotherhood of Pulp, Sulphite & Paper Mill Workers, U. S. Corrugated and Fibre Workers Union, Local 444, affiliated with the A. F. L., and Corrugated and Fibre Workers Union, Local 411, International Brotherhood of Pulp, Sulphite & Paper Mill Workers, A. F. of L., are labor organizations admitting to member- ship, employees of the respondent, at its Long Island City plant. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion 1. The respondent's opposition to Local 65 and,assistance , in the formation of Local, 411 In the summer of 1940, Local 65 started its organizing activities among the respondent's employees. Its first recruit was employee Ira Sugarman, who joined on July 10, 1940, and immediately became an active campaigner. Through his efforts Harry Davis joined on August 26, Sam Kinstler on September-25, and a handful of others, including Barney Landsberg, by the end of 1940. Solicitation of NATIONAL CONTAINER CORPORATION 571 members proceeded quietly,and secretively throughout this period and during the first,week,or two of 1941. ' ' 1 Sugarman testified that early in January 19417 Joseph Gruneisel, the resppndent's superintendent, had a conversation with employee Frank Yandoli' in the factory office of the plant in,the presence and, hearing of Sugarman, wherein Gruneisel told Yandoli that he believed, that if "the union came into the shop it would affect the speed of the workers and the lay-off in the shop ... that he would not tolerate any union activities on Frank's part in the shop and that any activity of that nature would be good cause for dismissal." He further testi- fied that at about the same time Gruneisel told employees Isaac Car- dona, Joe Umberto, and Barney Landsberg that there was a lot of discussion about the "Union" going on among the employees, that he did not want them to take part in it; and that continued union activity by them would-result in their discharge.8 On the'morning of January 6, Local 65 distributed to the employees leaflets disclosing these conversations. That same morning Gruneisel summoned Landsberg to the factory office where he told him, accord- ing to Sugarman who worked in the office, that he knew that Landsberg, had attended a meeting of Local- 65; that he (Gruneisel) had been kept informed of, everything that had taken place at the meeting; that he knew Landsberg was responsible for the distribution of the leaflets; and that "if the LTnion got into the shop the workers would be laid off and there would be a speed up." 9 Daniel Calabrese, then business agent of Local 411, testified- that about the middle of January, he' and Tonelli, an international repre- sentative of Local 411, were called to the offices of the respondent by Ginsberg, its vice president. There, in the presence of Goldberg, the respondent's general manager, Ginsberg told them "that Local 65 had a drive on at National Container; that he wanted the good old A. F. L. to have the shop but things were not so hot at that time, but as soon as things got a little tougher he would get'in touch with us [Tonelli and Calabrese] and he was confident he could deliver' the shop." According to Calabrese, Ginsberg again called Tonelli and Cala- brese to his office on January 24 and'told them that Local 65 seemed to be a little stronger than he had anticipated "and we [Calabrese and Tonelli] should get to work right away; he wanted to know the best way that we should go about organizing his plant." Tonelli and Calabrese thereupon suggested to Ginsberg and Goldberg that they send three or four employees to the office of Local 411 where they Hereinafter all dates refer to 1941 unless otherwise indicated $ It is not clear from the record whether, at this time, the respondent had promulgated a rule prohibiting such discussions among its employees on company time or property Gruneisel denied having had any conversations with Cardona, Umberto, and Landsberg. He admitted, however, having threatened to discharge Yandoli if he engaged in union activi- ties on company time. Upon the entire record we, like the Trial Examiner,' do not credit his denials 572 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD would be advised about organizing the plant. Ginsberg agreed to this arrangement and added that-the men selected would get plenty of advice and help from Goldberg and Gruneisel, the respondent' s super- intendent. Ginsberg also promised that'he would mail to Local 411 a list of names - and addresses of employees who, he thought, were "favorable" to the respondent. Calabrese further testified that on January 25 employees John Sa- brian, Peter Davidyock, and Eddie Betcher 1e came to the office of Local 411; that he and Tonelli gave them Local 4-11 application cards, urging them to get them signed "as far as possible; that the company would influence a lot of people to sign with them." He further testi- fied that on January 27 Local 411 received the list of prospective employee members which Ginsberg had previously promised. Calabrese also testified that at about this time he'and Tonelli.visited the offices of Bernstein, one of the respondent's attorneys, who stated that he wanted to see whether,Local 411, was strong enough to organ- ize the plant; that they also' visited the offices of Blumberg, another attorney for the respondent, who offered to give all the help possible short of "showing our hand"; and that they met some of the respond- ent's officials in restaurants where they discussed the progress of Local 411's campaign to organize, the employees." Sabrian and Betcher did not testify. Davidyock, however,-a wit- ness for the respondent, testified that sometime in December 1940 he and some other employees, whom he 'could not identify, were leaving the plant when Tonelli and Calabrese stopped them, asked them to join "the A. F. of L.," and gave Davidyock some Local 411 application cards which he used in soliciting employees in the plant and one of which he signed. On cross-examination he testified that that was the first time he had met Tonelli and Calabrese; that thereafter he, Betcher, and one other employee, whom he could not name ; went to the office of Local, 411 at the invitation of Tonelli and Calabrese; and that they were given Local 411 cards and told to-get them signed.' Davidyock further testified that he knew of no other worker who was soliciting for Local 411 before he commenced- his activities, and that his,interest in Local 411 started after Local 411 began the dis- tribution of self-addressed-post cards in the nature of application blanks. Ginsberg and Goldberg testified that they, met with Tonelli on January 9, and Tonelli and Calabrese on*or about January 24 in the 10 Betcher, Davidyock, and Sabrian vere employed in the corrugating department where basic operations are performed Employees therein are considered the key employees of the industry. 11 Neither Bernstein , who was present at the hearing when this testimony was adduced, nor Blumberg was called as a witness. Ginsberg, who admitted meeting Tonelli and Cala- brese in a restaurant, testified vaguely as to the subject of the conversation had there. Goldberg , in turn, stated that he met Calabrese in Blumberg 's office but that he ( Goldberg) did not participate in the discussion except -to say "hello." ,NATIONAL CONTAINER CORPORATION 573 offices of the respondent. Ginsberg testified that the meetings were held at the request of Toneelli and denied that the conversations oc- cured as testified to by Calabrese. Both Ginsberg and Goldberg tes- tified that the meetings which were held concerned demands made by Tonelli that the, respondent recognize and deal with Local,411 ,as the --bargaining agent of the employees, and that they refused to discuss the demands with him "because we had some charges pending with the Labor Board." As is hereinafter found, Local 411 did not make its appearance in the plant as a rival organization to Local 65 until January 25.12 Nor at that time were there any pending charges which might have affected the respondent's dealings with Local 411, such as a charge that the respondent had unlawfully assisted Local 411 or had unlawfully re- fused to bargain with Local 65.13 Moreover, the events which fol- lowed, as hereinafter found, so completely corroborate Calabrese's testimony, which we,, like the Trial Examiner, credit, as to make Ginsberg's and Goldberg's versions of these meetings implausible. From all of the above evidence 'and upon the entire record we find that Calabrese gave a substantially accurate account of what occurred at the meetings; that he and Tonelli were called by Ginsberg; and that the meetings took place about the middle of January and January 24, respectively. Except for Davidyock's testimony there is no direct evidence that Local 411• Was active in the organization of the respondent's employees prior to January 25 other than the testimony of witnesses for the respondent and Local 444 that they saw Local 411 leaflets being dis-' tributed' in front of the plant in December 1940 and January 1941.- Witnesses for the Board uniformly testified that Local 411 leaflets were first distributed during the last week in January. Robert Burke, an organizer for Local 65; testified without contradiction that..a Local •411 leaflet (which is in evidence as,an exhibit), attached t9. which was a self -,addressed post card application blank, was the' first leaflet issued by Local 411 and that it was distributed on January 27. No leaflet was produced which was shown to have been distributed at an earlier date. Davidyock's application card bore the date "January 27." 14 Moreover, of, 120 Local 411• application 'cards` introduced in " The earliest dated application card signed for Local 411 by the employees of the respondent hears the date of January 26, 1941 /" Local 65 filed a charge on January 13, 1941, alleging that the respondent had discrimi- natorily discharged employee Ira Sugarman on January 8,,1941. His case is more fully discussed -hereinafter. '4 At the request of counsel•for the Board , counsel for Local 444'were'asked to produce Davidyock's Local 411 vapplication card- That-card bore the date of January 27. Con- fronted with the card - Davidyock stated that lie, had signed two or three cards and , that"the card that was produced may not have been the first one he signed. No other card wa`s pre- sented nor was any reasonable explanation given for the absence of an earlier card Like the Trial Examiner, we find that the January 27 card is the card that Davidyock signed as his application for membership in Local 411; I '574 DECISIONS ` OF NATIONAL LABOR RELATIONS BOARD evidence, only 1 is dated prior to January 27 arid'that is dated January 26. Some of the cards bear no date , and'no 'testimony was adduced to show when the non-dated cards were signed. On January 28, Local 65 distributed a leaflet which denounced the activities of Davidyock and the attempts of the management to foist Local 411 on its employee. No mention of.these activities is to,be 'found in' the earlier leaflets of Local 65. ' -Moreover, Calabrese 'testified that the, list of employees' names and addresses, which he received on January 27 from the respondent to facilitate organization by-Local 411 ', was included among papers which he turned over to, Leon, the, international repre- sentative of Local 444, in December '1942. This was not -denied, by Leon who was available' to. testify throughout the hearing. In 'view of all.the above testimony we find; as, did the Trial Examiner, 'that the organizational activities of Local-41 1 did not commence at the respondent's plant until January 25; that Davidyock , Betcher, and ,Sabrian visited the offices. of Local 411 on that day and there met Tdnelli and Calabrese; and that their visit and subsequent activities on, .behalf of Local 411 stemmed from, and were a direct consequence of, the conference between Ginsberg, Goldberg, Tonelli, and Calabrese' on,the-previous day. ' • ' ' - Superintendent Gruneisel 's desk is located in 'the'factory office as distinguished from the main office of the respondent. Facing his desk was the -desk of David Baff , the respondent's maintenance siiperintend- 'ent.e,, About 10 feet from Gruneisel's desk was the desk of Gerald 'Davis, a factory office employee . The office,' as a whole, ' is approxi'- mately,20 feet by 30 feet, enclosed by a glass partition from *,hich'one 9can,Jook into a reception room. Davis, a credible witness; testified'ihat .about'a week prior to February 1 he was present in the factory office and; overheard a. conversation between :Gruneisel - and' Foreman Joe Lombardo. Gruneisel, told Lombardo that he- -understood there Was to be. a union in the plant and that there was quite a bit 'of talk about it,; that if-there was to be a' union in' the plant, lie and the respondent were in favor of the A. F. of L. • organization ; aid that he wanted Lombardo to tell the employees that "we believe tlie'A.=F. of L. orgarii'- zation is better for them than ' this C.,'I'. O. 'organization, better ad- vantages, and more benefits, and so forth , and to pass the word on to the men in the factory in his department ."- Davis further testified that he also overheard substantially the same- conversation pass be- tween Gruneisel and about 10 to' 15, foremen, including Foremen Harry `Morantz, H. Kipnis, and W. Richter.' He also testified that he heard substantiallythe, same conversation pas's' between"Gruneisel an d Davidyock, and Gruneisel and other , employees, who worked in the various ' departm'ents ' of the plant but whose; names he could not recall. /' NATIONAL CONTAINER 'CORPORATION' ;575 Davis' also testified that during the last week ' in January two n'o`r three men entered, the 'plant reception room and that in the perform- ance of his duty he went out to ask their business.' They told him that they were A. F. of L. organizers and would like to speak to Davidyock. Davis told them that they could not speak to a working employee until he had finished his shift.-'At that point Baff entered the reception room, whereupon Davis told Baff that'the gentlemen were A. F. of L. organizers' wlio wanted to 'sp'eak to Davidyock.' Baff, told Davis'to ask Gruneisel if it was • all right' for them to, speak to Davidyock. Davis did so and' was told by Gruneisel to get Davidyock "quietly:" Davidyock came to the reception room and conversed with the organ- izers. Baff testified evasively as to this incident, stating that he could not relilembered what had occurred with relation thereto. At'about this time, the respondent's officials and supervisors' made various statements' to'its employees! ,and engaged) in conduct-at', ,the plant intended to undermine Local 65 and to favor Local 411. 'Thus, employee Landsberg testified that on January 27 "'Joe Gruneisel'-was running all over the plant shouting the company will never sign with the C. 'I. O: The company, would go'out' of business. • They did not care•if'we went oil strike." ' He'further testified that oii the same day Harry Rounds, his foreman, told him, that "The company would rather go out of-business. They would never sign with the C. I.'O. 'They did' not care if we'went on 'strike"; that representatives of Local 411 were handing out leaflets in' the restaurant; 1,1 and that the leiflets had been placed on `chairs and tables 'of the restaurant befor'e' he had entered. Employee Harry Brown and Sam Kinstler' also testified that d'uriirg,the last-week of January they saw'two men distributing Local 411 leaflets in the restaurant. Employee Lionel Medina„ a& Puerto''Rican,'testified that on Janu- ary 28' Foreman Dave Scher came to' him at his place of wbrk and told him to'get'25 of the Spanish speaking people l6 in the pl`a`nt to sigh application cards for Local'411;'tliat other plants of the respond= ent' had'contracts with 'the American Federation 'of 'Labor' a'nd' "it ,was justified- that'the 'National Container Corporati'on' should' have a majority 'of votes',]rieinb6rship cards too, and we'have"a 'contract for the American Federation of Labor."' 'He also told'Medina'that' Local 411 cards could be obtained from employee Bill Shupa and Foreman Frank Wilson. ''Medina' further testified that on the same evening Joseph Comacho; his, foreman,,told;him that "the„ best.,way '^ Thef restaurant is located on' the plant'pre`mises and•is for' the convenience of employees ,and also the .public. Although it is, operated , independently .of,the respondent, the re- spondent maintains control of , activities other than purely restaurant function Samuel Kipriis, ,president of-the respondent, testified that the distribution 'of union'leufiets is for- bidden• in,the restaurant , because "they-would be creating a, disturbance nn the place and probably create a fight between one faction or another." At that time the respondent employed„abqut 40 individuals of Spanish descent. t 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for all the employees of National Container was to sign their cards and join the American Federation of Labor because we were going to be better off, there would be no strikes and a lot of time be wasted and money"; and that at about the same tiine he saw Foreman Wilson and employees Shupa and Davidyock soliciting Local 411 memberships in the plant in the presence of Foreman Scher. Employee Frank Wear, whose conduct the Trial Examiner char- acterized as hostile to Local 65 and favorable to Local 444, testified under subpoena that on January 27 Foreman Wilson gave him 25 or 30 Local 411' membership cards and told him to pass them out and try to have them signed;, that thereafter Foreman Scher asked him how many signed cards he had; that Scher told him to turn in the signed cards to the factory office; that at intervals of a half-hour during the day Scher asked him if he had succeeded in signing up more employees; and that he succeeded in having 2 application cards signed and delivered them to the factory office. He further testified that on January 29 he saw Local 411 leaflets being 'distributed in the respond- ent's plant. Gruneisel, Lombardo, Morantz, Rounds, Scher, Wilson, and Comacho denied the statements' and acts above attributed to them by Board witnesses. Foremen Kipnis 17 and Richter did not testify. The Trial Examiner, who saw and heard the witnesses, discredited their denials in part upon his observation of them. We concur with the Trial Examiner in crediting the testimony of the Board's witnesses and find that the respondent, by the'abo ie set forth acts of its officials and foremen, engaged in a coercive course of conduct designed to thwart Local 65's organizational efforts and to foist Local 411 upon the employees. On' January 29 Local 411 held its first meeting. The respondent had previously advertised that a meeting of Natcon; a credit union of the respondent's employees of which Gruneisel was president;.was to be held on that day. The meeting was postponed, however, because, according to Gruneisel, the employees "had to go some place and we wouldn't have any attendance." . We find, as did the Trial Examiner, that the meeting was postponed to accommodate Tonelli_ and Cala- brese in their efforts to organize Local.411. 1, - 2. The strike of February 1941 On January 31 Local 65 held a meeting which was attended by more than a majority of the respondent's employees. , At this meeting there was a general discussion, among other matters with respect, to the respondent's efforts to help Local 411 and to "break up" Local :65. Employee Hammack, reported that the respondent was moving dies Hereafter the name of Kipnis refers to Samuel Kipnis, the respondent's president. No further mention of Foreman Kipnis is made. NATIONAL CONTAINER CORPORATION 577 of important customers from the plant, and stated that this was evidence of the respondent's intention to close the plant rather than to deal with Local 65. Some of the employees who spoke, including Hammack, Vitello, Kinstler, and Kersais, suggested that a strike be called "in order to compel the company to stop their shenanigans with'tlie. A. F; L, and-to deal wi'tlr the, C. I. O.'*hich represented the workers." Livingston, vice president and organizational director of . Local 65, suggested that, instead of a strike, the employees call a "holiday" or stoppage of work, but that there be no picket line and no effort to influence other employees not to go to work. This suggestion was adopted unanimously. The holiday commenced on Saturday, February 1. The pay-roll records of the respondent reveal that about 9O percent of the em- ployees remained away from work on that day. At another meeting of Local 65 held that afternoon at Gets Hall,18 it was decided that, if the respondent attempted to operate its plant with strike breakers, 'the holiday would become a strike. Calabrese testified that on the morning of February 1 he received two or three telephone calls from Goldberg and Ginsberg. They told Calabrese that the plant was out and that he and Tonelli should visit each employee at his home for the purpose of inducing,them to go back toy work. Calabrese asked Goldberg to furnish him with' a list of names and addresses of all the employees; the list was delivered to him by Goldberg later that day 19 Calabrese further testified that on the morning of February 2, he and Tonelli met with Ginsberg and Goldberg in the respondent's plant; that Ginsberg and Goldberg "stressed on me and Mr. Tonelli that if we would get a number of people from the' outside to go into work the next day, no matter how' we got them in, there; that it would break the morale of the strikers, and -they would -follow suit." He further testified that^in response to the request of Ginsberg and Goldberg, he, Tonelli and Ben Cianculli "toured half of Brooklyn that day" by going to restaurants and other public,places.20 , - • - 18 Employees Smith and Richter testified that they were at the union hall all afternoon and that no meeting'of Local 65 was held there There was no testimony that a meeting was held at the union hall as distinguished from Gus Hall , the latter being strike head- quarters 19 Goldberg and Ginsberg denied conversations with Calabrese and Tonelli . As with ,the employee list of January 27, Calabrese testified that he also turned over to Leon the list of February 1. Leon was available in the court room but was not called to deny the fact. Nor was Tonelli, the one man who could have decisively contradicted Calabrese 's testimony, ,called as a witness. We agree with the finding of the Trial Examiner , crediting Calabrese's testimony and discrediting the denials, of Ginsberg ,and Goldberg. - 20 Ginsberg and Goldberg denied the testimony of Calabrese . However, Smith testified, and we find , that on the following morning, February 3, Calabrese appeared at the plant ,a ith a truckload of "poolroom bums " intended as strike, breakers . It is most unlikely that Calabrese would have done this without the approval ' of the respondent.' We find, ad did the Triai'Examiner ,, that Calabrese and Tonelli recruited strike breakers at the request of 'the respondent. . I ' 601248-45-vol.-57-38 i I 578 DECISIONS 'OF' NATIONAL LABOR RELATIONS BOARD On February •2, the respondent sent to each of ,its employees 'a copy of the- following telegram OUR PLANT ' WILL OPERATE MONDAY AS USUAL, WE ARE INFORMED THAT'MANY OF OUR' WORKERS ARE BEING INTIMIDATED AND' THREATENED' IF THEY RETURN TO WORK. WE WISH TO ASSURE YOU OF EVERY PROTECTION PERMITTED BY LAW WHILE GOING TO' AND FROM THE' PLANT AND WHILE WORIK- ING: WE ' HOPE YOU WILL REPORT' TO WORK TO- MORROW MORNING. IF YOU ARE ' BEING THREAT- ENED OR PREVENTED FROM COMING TO WORK-CALL US AT IRONSIDES 6-8000'E'ARLY MONDAY MORNING. NATIONAL CONTAINER CORP. There is, no evidence that on- February, 4, ' members or. officials of Local 65•or-anyone else' committed 'any -acts of-violence or intimidation- to compel participation-in the strike, as, is intimated in the -telegram. Neither the -respondent nor Local,,444tprbduced; a• single witness-to testify :that he was-intimidated orcoerced- into relria,ining away from work on 'that 1day.21 Richter, testified,.that,, at! the request of Burke, he arrived at the plant,at 4 a. in. oli. February' 1 because ";.lot of the people'might want to-sneak in before six 'o'clock?'; that'he tried,to dissuade' Henry Ghighotti from going'Wapork but did, ,notsucceed; a,nd that-he, persuaded,, employees Mary, and John Litchko.to,go:home after they,had 'expressed` a desire to, work., Smith testified that on -that' morning. he stopped employees Lester, Beacher, Benny Sito; and George Worchell,: told, them -of the meeting the preceding night,,-and that 'they'decided. to: stay gout; that he,spoke,to Susan,DeMatteo,;who stated ,that_ she would not strike with. Local; 65'and' went to,wbrk ; that he-stopped' Benny. Frankel, and keptIlilih out of,the plant despite'"his wish'to go to work!, The, pay-roll records,do,not, reveal,that Frankel was an employee i of the. respondent at, that -time.: i Thus,, from „the testimony of Smith and Richter it does not appear. that _violence', was employed to prevent the respondent's employees from reporting to work on February `1, 'although t nuniber of diem who-appeared to go to work on February-1 were dissuaded from, doing so. The holiday Alexander ' C. Herman, one of the respondent's' directors and vice presidents , testified 'that on the evening of Ma'rch 5 he and Goldberg attended a meeting of 12 or 13 employees iri the back room of 'a saloon in the Brona 7 that employee Joseph Meaux ' was the spokesman 'for the employees who were for the most part of Spanish origin ; that Meaux said 'that there were ' some 40 emiiloyees who would like to return to work) but that tliey were "scared";'and that Meaux recited some instances of violence and, intimidation . Meaux identified no indl- bidualsas responsible'for the acts and1could not remember that he had made the statements attributed to him by Heiman. He denied , moreover, that he had' been' intimidated.' No other employee, who attended the meeting, was called as a witness: We'agree with the finding of 'the Trial Examiner that the Hearsay character iof Herman's evidence is'insufficient to warrant a ' fin'ding that anyone connected wlth-'Local 65'par'ticipated in' the' alleged acts, even if they did occur. NATIONAL CONTAINER CORPORATION 579 continued on February 3. The respondent adduced testimony for the purpose of establishing that Local 65, on that day also, engaged in violence in order to prevent the employees from returning to work. Such testimony is not convincing. We find that the evidence fails to establish the respondent's contention that the strike was forced upon the employees by the officials of Local 65 and that participation therein by the employees was not voluntary. We further find, as did the Trial Examiner, that the telegram of February 2 was an individual appeal to each of the respondent's employees to return to work and thus repudiate adherence to Local 65, 'and that by .this course of con- duct the respondent interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. Our finding in this respect is based upon our determinations, herein- after set forth, that the strike was caused, at least in part, by the respondent's unfair labor practices. Richter, Smith, and witnesses for the Board testified without con- tradiction that about 10 a. m. on February 3, there pulled up at the gates of the respondent's plant, a truck loaded with what Smith and Richter described as "about 50 or 60 young fellows in it, regular .. . poolroom bums, shabby looking," intent on replacing the strikers in their jobs. Behind the truck was a cab in which were seated Calabrese and one other unidentified man. When these men learned from the strikers that they were intended as strike breakers, all but 3 left the plant. Thereafter picket signs were carried by the strikers. On the afternoon of February 3 Local 65 held another meeting in Gus Hall, attended by approximately 175 employees who voted unanimously to declare a strike following a report made to the employees that strike- breakers had been brought to the plant. At about this time also, Kipnis admitted visiting headquarters of Local 65 for the purpose of saying "hello" to the strikers, and because he felt that the respondent's employees, many of whom had worked for the Company for 20 years, were "not in sympathy with the strike." According to employee Sugarman, whose testimony we credit, Kipnis reproached employee Goldstein for having gone out on strike and accused Sugarman of having instigated the strike 22 On February 17, the respondent sent each of its employees the following letter, signed by Goldberg : To MY FELLOW-WORKERS : As your new General Manager, I feel it my personal duty to send these few words to you. I want you to know that I feel for you-that in my opinion a strike accomplishes nothing-that any- thing that is to be done can be done while you are working and getting paid. I Kipnis denied making the statements attributed to him by Sugarman . Upon the entire record, we do not credit his denial. 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD An election is the only solution to, the present situation and unfortunately the decision to have one ' does not rest with the National Container Corporation. There is no question as to any contract pending at this time-there could not be one as I under- stand National Container has no right to deal with either Union until an el'ection'is held and the results obtained. , ,' This, without the consent of the C. I. 0., cannot be held for quite some time. In the meantime , you are the losers for you are not being paid and nothing is hastened. I appeal to your common sense-return to work at once-avoid further losses-avoid a complete shut-down-avoid a possible further disentegration of National 's business with its future loss to you as well as the company. I present these to you from the heart-I desire to keep our past business in tack as much as, possible although considerable, has been lost caused by'those 'who are directing some of you. Return to work at once and keep your responsibility to, your families and yourselves. Most Sincerely /s/ LIONEL GOLDBERG Lionel Goldberg Calabrese testified that on March 2 Kipnis visited the office of Local 411, where a group of key'workers had-been gathered by Tonelli.and Calabrese. Kipnis addressed the workers and told them that they were his key men; that he would like to see them all go back'to work and "string along with the A. F. of L."; that that was the only union he wanted; and that rather than have Local 65'in the plant, which-he branded as a union controlled by a "bunch of young communists," he would close the plant. Kipnis denied that he was present at the meet- ing. Calabrese testified very definitely as to the date of this-meeting. The pay-roll recor'ds show 'that'Woicenowicz, Davidyo'ck, Sabrian, Betcher, and Teddy Peltz, who were named by Calabrese as among those present at the meeting, returned to work on March 3. Kipnis contradicted his testimony on several occasions. On the other hand, Calabrese's testimony was in most instances corroborated by other witnesses or circumstances23. We; like 'the Trial Examiner, do 'not credit Kipnis' denial and find that he attended the meeting and made the statements above set forth. " In its brief before the Board, the respondent objects to the fact that the Trial Examiner credited 'Calabrese's testimony, contending that Calabrese, having been discharged from his position as oi-ganizer'liy Local 411 and having admittedly forged--the signatures•of em- ployees to application cards, was a person whose testimony should not be believed. We have carefully reviewed Calabrese's testimony and agree with the Trial Examiner's resolu- tion as to his credibility, particularly since his testimony is corroborated in all material respects by the testimony of the respondent's officials and by other facts and circumstances. 1 NATIONAL CONTAINER, CORPORATION 581 We find that the strike was caused, at least in part, and was pro- longed by the respondent's unfair labor practices. On March 6 the respondent, Local 65,, and Local 411 entered into a consent election agreement, which provided for a "cooling off" period of 3 weeks, a _provision inserted at the insistence of the respondent. Calabrese tes-, tified without denial and we find, as did the Trial Examiner, that Lo- cal 411'joined,in the-demand for this "cooling off" period at the in- struction of the respondent, and that its attorney, Blumberg, told him that "in the time-the employees would be back to work and the company would have plenty of time to work on them." Other than the reason given by Blumberg, none was offered to explain -Why there should be a "cooling off" period before the employees might be per- initted to vote by secret ballot. This agreement settled the strike 24 In addition to the provision for an election the agreement provided, among other things, for the reinstatement of all- employees, includ- ing Sugarman. 3. The incident concerning the steward buttons and the `work stoppage - of March 13 On March 10 about 200 of the strikers marched back to work in a body singing Local 65 songs. About 30 of these employees wore steward buttons, in addition to their union buttons, which identified them as leaders among the workers. Many others wore union buttons. On March 13 Gruneisel, Assistant' Superintendent Spengler, and Kipnis, according to their own testimony, instructed the stewards in- dividually to remove their steward buttons. Those who refused were discharged ; whereupon a work stoppage took place. The respondent contends that the work stoppage was brought about by the conduct of.the stewards during the period from March 10 to 13 in counselling employees to impede production and to disobey the orders of the fore- men. The Trial Examiner found that the stewards did not engage in activities intended to slow down production iii the plant nor attempt to countermand orders given to employees.by the foremen. In support of the respondent's contention, Gruneisel testified that between March 10 and 13 he received complaints from the foremen that, employees were leaving their machines and places of work and going to other parts of the plant instead of'staying in their own depart- ments; that on the afternoon of March 13 he spoke to machine operator Williams, who had left his machine for a period of 10 minutes; that he askedWilliams what he was doing away from the machine and was 24 The record fails to support the respondent 's contention that the strike was attended by violence We do not credit the testimony of employees Smith and Richter to the effect that they engaged in such violence . The record shows , and we find , that the activities of the str,kers , engaged in by "flying squads ," consisted of meeting employees at the subway stations to attempt to persuade-them not to, report to work ; of following idelivery trucks to their destination, where the strikers appealed to customers not to accept delivery ; and of seeking to organize other plants. 582 DECISIONS) OF. NATIONAL LABOR RELATIONS BOARD told by Williams that he, had been appointed' a steward by'' Locah,65, that .it wa-s,one'of his duties to, see that,the'foreman did not give too many orders to their, men, and that orders should' be given by the foremen through the, stewards: , Gruneisel. further testified that after. some discussion with -Williams "he seen- my way of thinking and he went to work and took off his 'steward button..?' Kipnis testified that between March 10 and 13' foremen complained that employees - were- disobeying, orders after consulting with stewards, and that he I in- structed Gruneisel and Spengler to ask the men to behave,themselves. The testimony of the foremen does not support Gruneisel's' and Kipnis' version of what occurred between March.10 and. 13. Thus, Spengler. testified that he received reports from -foremen between March 10 and 13 to the effect that stewards were speaking to em- ployees after the latter had received orders -from the foremen. He testified, variously, that the only foreman from whom he received such reports was Rounds of the printing department, later added the name of Marantz, had previously named Comacho, and finally re- solved on Marantz and, Rounds. - ' He first testified that prior to March 13 he had received reports that "people left their machines running and were running around the floor talking to another employee"; later he stated that this occurred only after he had asked the employees to' remove their steward buttons. He testified to no instance of a worker disobeying the instructions of'the foreman and admitted that he did not know what conversations passed between stewards and the workers. He further testified that when he asked the stewards to remove their buttons, "all those that I went around to took it very nicely and removed their buttons," except employee Joseph Valentine. Harry Rounds, printing department foreman and the individual who should have had first-hand knowledge of the activities of the stewards in his department, including Richter and Landsberg, was riot asked nor did he testify to any improper conduct on their part either in connection with the wearing of steward buttons or otherwise between March 10 and 13. Moreover, his account of the stoppage on March 13 was to ,the effect that the men stopped working and did not leave any machine running. ' Harry Marantz, the foreman in the slitting department, testified that he told Valentine to take off his steward button because "the notice was on the bulletin board, that we don't want any unions, and we don't require or have anything to do with union places or shops." He testi- fied that Valentine had worn his steward button for 2 weeks. Al- though there is no question but that steward buttons were "worn in the plant no longer than 3 days, Marailtz could not recall whether the activities of Valentine .took place before the first strike, after the second strike, or between the two strikes. He testified to no unusual circumstances concerning the March 13 stoppage and could not re- NATIONAL CONTAINER CORPORATION , 583, member ,vhetheri any, machines were 'left running in his department after the,stoppage commenced. . , Joseph Lombardo, the foreman of the fibre department,; in, which, according to.,the; ,testimony, of, Smith. and, ,Richter, there , were some 8,toy; 40, stewards, testified, that. he reported,to Spengler one incident involving an unidentified worker, and an unidentified steward who, had a, conversation after the foreman had given the-worker,an or,der,,fol, lowing,-%hich the, order was carried•out., As.noted above, Spengler tes- tified that he had received no reports from Lombardo, but,only from Marantz and Rounds. There is nothing in Lombardo's testimony to indicate that the alleged misconduct of the stewards in his depart- ment was more than trivial. - , .Harry Sobel, shipping department foreman, Dave Scher, foreman of the taping department, and Joseph Comacho, foreman of the nest- ing department, testified, to no unusual incidents or improper conduct on the part of stewards during the period between March 10 and 13. 'Emigdio Montalvo, assistant foreman iii the printing department, testified that some workers spoke to stewards before obeying orders but that the orders were in every instance obeyed. He, too, contrary to the testimony of Spengler, testified that he reported this to Spengler. Gruneisel, Spengler, Smith, and Richter also testified that the stewards slowed down production in the plant, and Richter testified that he counselled employees to do so. Beyond their' bare assertions there is no evidence of any actual slow-down. According to Spengler, the respondent keeps daily production records of the amount of cor- rugated board manufactured and the tonnage of paper processed in the machines. Counsel for the Board pointed to the existence of these records and challenged the respondent to produce them. They were not produced. Since the production records, would show conclusively whether the respondent's claim of a production slow-down had sub- stance, we find, like the Trial Examiner, that the failure to produce the records negatives the respondent's contention and that in fact no slow-down in production occurred. It is, therefore, clear that no substantial evidence was adduced by the respondent to support, its claim concerning the activities of the stewards between March 10 and 13. We find, on the contrary, as did the Trial Examiner, that the testimony disproves the claim that orders were countermanded, or that -the stewards. created any dis- turbance in the plant. Upon the basis of the entire record and in view of the fact that the orders were complied with, we further find that the stewards did .not countermand any orders.25 , 26 Some evidence was offered by the respondent , through the testimony of Smith and Richter, that officers of Local 65 instructed the stewards to countermand orders given by foremen to employees . ' The evidence thus offered , however, is unconvincing. On cross- examination Smith , who had previously testified with some particularity as to such instruc- tions given by Livingston , was unable to recall that the instructions hid actually been given. h 584, DECISIONS' OF NATIONAL, LABOR RELATIONS BOARD As above indicated, Gruneisel and Spengler, on the afternoon of March 13, separately visited the departments of the plant and ordered the stewards'to remove their steward buttons. Spengler testified that "all those that I went around to took it very nicely and removed their buttons," except Valentine. He reported Valentine's refusal to Gruneisel, and the two of them went to the slitting department where' Valentine worked. Valentine, a credible witness, 'testified that' he wore a couple of small union buttons and a steward button; that he was told by Marantz and Spengler to take off all but one of his buttons "or else"; that he refused; and that at about 3 p. in. on March 13 Gruneisel told him that if he would not remove his buttons, he should punch out. Valentine left as instructed, and went to the locker room where he was joined by employee Paul Cianci. After he left the locker room, a work stoppage began in the plant. As Valentine was leaving the plant, he met Kipnis who called him a communist. Landsberg testified that on March 13 he received a report that Valen- tine and Cianci had been discharged; whereupon he and Kinstler spoke with Gruneisel, Spengler, and Goldberg and discussed the dis- charges of Valentine and Cianci. According to Kinstler, the respond- ent's officials stated that the men could not work as long as they wore steward buttons because it was not a union shop. When Kinstler and Landsberg pointed out that they, too, were wearing steward buttons, • they were told that they could not work unless they removed their steward buttons and, according to Landsberg, they were finally told that they were discharged. • Landsberg then told the employees what had happened, and a work stoppage occurred. Kinstler returned to his department where he met Kipnis and asked him if "we were fired." Kipnis said "no," whereupon Kinstler said "Well, then, we will go back `to work." -Kipnis retorted, "You can't go back to work as long as you wear the steward button." In view of all the evidence, we, like the Trial Examiner, do not credit the testimony of Kipnis and Gruneisel. We find that the respondent opposed the wearing of Local 65 steward buttons in the plant and ordered all stewards,to remove those buttons, thereby interfering with, restraining, and coercing the employees in the exercise of the rights guaranteed in Section 7 of the Act.26 The alternative for any steward- who refused to 'comply with that order was discharge. Valentine, Cianci, Landsberg, and Kinstler disobeyed the order and were dis- charged in violation of Section 8 (3) of the Act, as hereinafter found. When the employees, an overwhelming majority of whom were ad- herents of Local 65; were informed of the respondent's action against Valentine, Cianci, Landsberg, and Kinstler, they concertedly protested 26 See Matter of Republic Aviation Corporation, 51 N. L. R: B. 1186, enforced in 142 F. i2d) 193 (C. C. A. 2). • NATIONAL CONTAINER CORPORATION - 585 the respondent's order to remove the' steward buttons and the dis- charges, by refusing to work, thus causing the stoppage.27 The respondent contends that the stoppage was attended by confu- sion and disorder. In support thereof Gruneisel testified that after the alleged threats-'of Valentine, Kinstler, and Landsberg to stop pro- duction, "the plant was shut down . . . the big corrugated machines, they run until they are blocked up with paper . . . all the machines were left running. Other machines were with the paper half way, through, and stopped off, and a lot of motors you could hear running around the plant. People left their places of work and congregated in the middle of the floor, and some just sat down alongside of the machines." Richter testified,that employee Henry Ghighiotty refused to shut off his machine (but did not testify that Ghighiotty left it unattended) and that he knew the corrugating machines were shut off because when they are "the place is as still as a cemetery." , It is clear that if the stoppage were attended by chaos and disorder, all the foremen would have observed the situation and would have have testified with particularity as to the events. Yet their testimony does not indicate that there was any disorder. We find, as did the Trial Examiner, that the claim that the stoppage of March 13 was disorderly is not supported by the evidence. The respondent and Local 444 further sought to establish that the stoppage of March 13 was a "sit-down" strike. There is no evidence that the employees took possession of the plant, withheld it against the wishes of the respondent, or had to be forcibly ejected. On the contrary, there is the testimony of Kipnis that he pleaded with the employees "for about an hour.to return to work'until finally, through some miracle'I don't know what happened, they all walked out"; the testimony of Goldberg that "I talked to some of them . .. and asked. them why they Were leaving ..."; the testimony of Gruneisel that he was not trying to get the employees out of the plant but to get them back to work; and the testimony of Smith that after a talk with Kipnis there was a cry of "Everybody out" and "we went to the exit of the plant, and we punched our cards at the entrance or exit." The evi- dence discloses and we find, as did the Trial Examiner, that the em- ployees remained in the plant from 3 to 4: 30 p. in., and left when, Gruneisel, at the request of the employees, had the time, clock turned back to 3 p. M.28 We find, therefore, that the claim of a "sit-down" strike is without merit.29 27 Gruneisel testified that "the steward's button started the stoppage." 28 The record is not clear as to why the employees made this request. 21 Cf. N. L. R. B V. American Mfg. Co ,.106 F. '(2d) 61 (C. C. A. 2 ), aff d as modified in other respects , 309 U. S 629. 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The lock-out and discriminatory discharges of March 14 On the evening of March 13 Local 65 held a meeting at which Liv- ingston advised , and the workers agreed, to remove their steward buttons: , Before the meeting Livingston had called Kipnis on the telephone and had asked him whether workers had been discharged for, wearing steward buttons, to which Kipnis replied in the affirma- tive. Livingston stated to Kipnis that if the stewards were mix.7 behaving, that could be remedied,; but Kipnis' answer, was to challenge Livingston to call a strike. Kipnis stated that he would not reinstate the discharged employees and that "nobody in the plant would wear steward buttons." Livingston stated that all workers would . report for work the next morning.3° The employees returned to the plant on the morning of the 14th at S a. in., their starting time, ready to work. , Kipnis, Gruneisel, and Goldberg told 46 of them to remain behind after the others went to work. , As hereinafter found, 'the respondent locked out the 46 em- ployees because ,of their union membership and, activities., After the workers were•asked to step aside, they, went to strike head- quarters and designated a committee to see Kipnis ; The committee went to the plant with Burke, a representative of Local , 65. Kipnis, however, refused to see them with Burke, stating that there .was no union in the plant and that he would not speak to any representatives of Local 65. The committee then met with Kipnis, without Burke. They told Kipnis that if the steward buttons annoyed him, they would be removed in the interest of pence and harmony. They asked hiln to' permit the workers to return to, work ; he, agreed, but ,stated, according to-Kinstler, that he would not reinstate'office employees Harry Davis, Gerald Davis, and Melvin Schwartz , who, as hereinafter ,found, had been discriminatorily discharged that day. The remaining employees returned to work shortly before 11 a. in., without their steward buttons. 5. The overtime order of March 19, and the lock-out of March 20 Between March 14 and 19 the plant operated without disturbance. On March 19 Local 65 had scheduled a meeting for' 5 p. in., the quitting time then being 4: 30 p. in. This meeting had been arranged some days earlier 31 for the purpose of reporting to the workers the status 30 Kipnis denied the conversation as related by Livingston . Upon the entire record, and as found by the Trial Examiner, we do not credit his denial. In crediting Livingston's testniony as to Kipnis' statements with regard to the respondent 's older for the removal of steward buttons , w e are mindful of the admission made by the respondent 's witnesses that such an order was actually given and, also of the position, taken by the respondent's attorneys at the hearing to the effect that until a union had been designated as a bargaining agent, the employees would not be permitted to wear steward buttons. 31 It is clear , and we find, from the testimony of Burke and Landsberg , who were present at a meeting of the Union several days before the 19th, that the meeting for the 19th was scheduled at that time. NATIONAL CONTAINER CORPORATION 587 of the election agreement. On the 18th the respondent posted in the plant a' blackboard notice, stating' that the entire plait would. work until 6: 45 p. m. on the 19th. Landsberg testified that on the morning of the 19th he went,to see Gruneisel and told him that Local 65 wanted to have the workers released by 5 p. m. so that they could attend the meeting. Gruneisel said that;he would let Landsberg know whether-that-could. be done. At about 2: 30 that afternoon Landsberg and a committee of workers conferred with Kipnis and Gruneisel: Landsberg testified that they told Kipnis of the request that all of the workers be released by 5 p. in. to permit, them to attend the previously scheduled meeting; to which Kipnis replied, "who is running this place, me or the union?" After some discussion, according to Landsberg, the committee agreed that the combiners would work until 6, p. m., and the other depart- ments would work as long as there was work to be done but not later than 6 o'clock. Landsberg testified further that, the committee' ad- vised Kipnis that it did not represent the union. members and would not take the responsibility of binding the workers to the agreement which it had made. ' Gruneisel''§ testimony regarding the incident of March 19 was as follows : At 1:30 p. iii. Landsberg told him, "none- of the help are working tonight." He reproved Landsberg for speaking for anyone but himself and told him, "If you want off, go to your foreman and he will leave you off." ' Gruneisel then reported the matter to Kipnis who told him to ". .. have Scottie Smith get a committee together to come in and see me." Gruneisel then spoke to Smith "who picked out three other 'people." The committee then conferred with Gru- neisel, Goldberg, and Kipnis. Kipnis -stated, "I will leave it up to yourselves. Tell me what time you want to work to," following which the committee agreed to work until 5:45 p. -m. On cross- examination Gruneisel changed his testimony. He stated that Kipnis did not tell him to have Scottie Smith get a committee together but merely "have a committee come into the office," and that he asked Smith to pick- the committee because .he happened to run- into Smith first. Gruneisel, however, reverted to his original position when confronted, with his direct testimony. He could not account for Kipnis' selecting Smith to get the committee together. He further modified his direct testimony by testifying that the committee agreed that "the majority of the plant" would work until 5:45, and again "that most of the plant, nearly all" of it would work until that time and again, "that the complete plant except the hand taping depart- ment" would work until that time.' He further testified that follow- iiig the meeting he notified Spengler and "some" of the foremen of the change in the overtime hour. 1 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kipnis testified that the committee agreed that the entire, plant would work until 6 o'clock after he had put the matter up to them to decide, and that he then told them to go out into the plant to tell the workers of the decision. Regarding the latter point, he testified that "the natural thing for them to do 'was to go out and notify the people." He had previously testified'that the committee had no busi- ness speaking to.the workers after the meeting. Goldberg testified that he expected the foremen to advise the workers of the decision, and that "I always like to feel the -foremen give instructions to the employees." Smith, a member of the committee, testified,that during the confer- ence he left the committee and telephoned the office of Local 65. This was denied by Landsberg. Kipnis testified categorically that the com- mittee did not leave the office during the conference. Smith also testi- fled that when he returned, he consulted the committee, as a result of which the committee told Kipnis that the plant" would work 'until 5:45 p. m. and that the committee would so notify the workers. In view of the several contradictions in the testimony of Kipnis, Gruneisel, Goldberg, and Smith, we, like the. Trial Examiner who heard and .observed the demeanor of the witnesses, reject their testi- mony and find that Landsberg, a credible witness, gave a substantially true account of the agreement reached between the committee and offi- cials of the respondent on the afternoon of March 19. The Board's witnesses, including Kinstler and Landsberg, testified that it-was the customary practice in the plant for the foreman to ad- vise the employees of required overtime work. - No foreman was able to point, with any semblance of definiteness, to a time when the entire plant worked to a uniform quitting time either upon instructions from the foremen or by reason of a notice posted on the bulletin board. Analysis of the time cards for the period, from March 10 to 20 shows that on none of those days did the entire plant work overtime or until a uniform quitting time.32 Board's counsel challenged the respondent to cite the records for any day prior to March 19 when the entire plant had worked until 6 or 7 p. in., or until any uniform' quitting time, but no such,records were produced. Montalvo, assistant foreman of the printing department, testified, that never had his whole department worked overtime when an overlapping night shift was scheduled. However it is clear that such was the case on March 19. No credible or reasonable explanation was offered-for ordering the whole printing department to work until 7 p. m., when the night shift was due to report, at 4:30 p. m. 82 The time cards contradict the testimony of Foreman Lombardo NN ho stated that during this peiiod the entire plant had been required to work overtime , Furthermore, although Foreman Rounds testified, generally, that such overtime work had been scheduled on many occasions , no proof thereof was offered by the respondent NATIONAL CONTAINER CORPORATION • 589 Gruneisel testified that the respondent feared to order overtime'work between March 10 and 19 because of the attitude of the stewards. The time cards, however, cast serious doubt upon his testimony since they show 'that on various days during this period different departments, including the slfct'ing department, a union stronghold, worked, over- time as required. f The Trial Examiner found that the purpose of the respondent in scheduling overtime for the entire plant on March 19 was to prevent the employees from attending•the union meeting previously arranged for that day by Local 65. We agree with his conclusion and find, fur- ther, that the respondent had knowledge of the proposed union-meet- ing,prior to the time when it issued its overtime order. We base this conclusion not only on the fact that the respondent, when ordering overtime for the entirerplant for that day, was taking an unprecedented measure, but also on the fact that the union meeting had been decided upon several days before the 19th; that the respondent had previously engaged in surveillance of a'meeting of Local 65; and that, from the outset, the respondent had consistently opposed and discriminated against L'oca1,65 and its' adherents while it openly promoted Local 411. We-further find that, even if the respondent had no knowledge of the union meeting until informed thereof on March 19 by members of Local 65, its failure to withdraw the overtime order for that day was for the purpose of preventing its employees from attending the union meeting that afternoon. Shortly after 4: 30 p. m. on the 19th, about 80 of the respondent's 29' ' employees left the plant to attend the meeting. , Thereafter, and until shortly, after 6 p., in,. the rest, of the employees left.33 The com- biners worked until 6 p. in. - As the workers left the plant, the time cards of many of them were taken from the rack by Gruneisel. This was reported to Livingston who spoke to Gruneisel outside the plant that,evening and received assurance from him that no one would be discharged. When the men reported for work the following morning, March 20, a number of them were picked-out of line by the respondent and pre- vented' from working. Burke testified that he was present when the workers were picked off the line on the 20th; that they were told to go to the office of Local 65; and that he asked Kipnis the reason for this, but Kipnis paid no attention to him: • He, testified, further, that he returned to the plant at about 8: 30 a. in. and' asked to see Kipnis only -to be told by Goldberg `that Kipnis' d not ,available;: that he Gruneisel testified that when the employees left, he'observed that "some operators left their machines running; , 'other machines, the helpers walked off, and other people running around the plant telling people, 'No overtime , stop your machine' ",; that damage was caused ; and that the foremen were on duty when this was going on However, in view , of the con- tradictory testimony of the respondent's foremen , we do not credit Gruneisel. 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD asked,Goldberg if the men were: discharged;, that he asked the same question of Kipnis, who appeared at this point; that Kipnis refused to discuss the matter with him, saying, "I don't have anything to do with Local 65"; that Goldberg told the men to come back for their pay at'10 o'clock, and that they were fired; that he returned to the plant with the employees at 10 o'clock, when Goldberg told them that their pay was, not ready; and,that Goldberg denied them the privilege of getting their clothes, whereupon the second strike ,started. Burke's testimony was substantially corroborated by the credible testimony of employees Landsberg, IKinstler,'and Herr. We, like the Trial Exam-- iner, accept their testimony as substantially reflecting the events which followed after the workers were denied, access to thetplant. ,, As hereinafter found, the employees who were refused entry to the plant on the morning of March 20 were, discriminatorily discharged, locked out, and thereafter ,refused employment. 6. The second strike and the settlement thereof Asa result of the lock-out, Burke and'a group of employees entered the plant through' the shipping department and called the workers out 'oh strike. "'Much testimony was add'uced' regarding `alleged 'vio- lence by Burke and others on this occasion: Although the respondent -and Local 444' sought'td create' the 'general' impression that 'Burke brhtelly'. assaulted; employee.'Bergstrom,-iio'evid'ence of t'hi's' w,as prof duced and employee Richter testified that a nu'm'ber of people'includ- ilig himself' were' respohsilile 'for i BeEgsttoni's condition,"' There "was testimony'that'some'of-the strikers'expectorated at other workers aria called, them scabs. ',Th'ere' is no proof; however; that' anyone was in- timidated into'joihin', the strike, or:thitt any violence occurred.- I We' find that"th`e' strike' was''caused` by the', respolident's . unfair labor practices. ' ' , i., : , - , . ,. - l ., . ,i , , `i''OrilApril'4 a'proposal'for'the settlerhelit of the'strike was'made'by William C. Liller, a commissioner of the conciliation service `df• the Despite pressure allegedly applied to ',them, the girls in the 1 hand taping department renuiined on the job,' a's did the employees " in the Hauling and storage *department and the machine • shop' 4 Gruneisel andhSmithitestified vaguely as to assaults on,some employees by the strikers but did not identify •the,assailants . Goldberg testified at length to a number of ^ i'nstanees 'whe're employees were ' molested He' did ' nof' name, the 'persons ii h'o Ni ere allegedly 'annoyed, ;nor did ' any, of them testify . ,, The respondent 's attorney •stated at; the hearing that Goldberg 's testimony was not offered, as proof of violence, but rather to sub- Rtanii'ate'th'e respon`dent's ciaiui' tliat, by ' refr'aiiiing 'feom making further iiicestiga`tion"als to 'the damage allegedly .caused by Local 65,'.the resporident . had'furnished consideration on its part for the settlement agreement of April 4 , hereinafter discussed The record indi- cgtes' ttie (follo^^ing^in this'iespect': ' Trial Examiner ERICxsoN . As I understand it, what you are doing is sfiowing in "tire record 'that there wereall'eged charges thnt ' were 'a consideration in the making 'this"agreement. ,fr., n . . ,r .. ,^ ., ...,y•., .u^ hi S E xBERd > G . That's rig ht .' Trial Esaimnee Esicxs'ox And `sou are not attempting to'prove' the truth 'of'th'em:' Dir. EISE N*BERC. Oh, ' no!" 'I 'cannot 'pi ove'that 'this 'way, I will concede that. " , I NATIONAL CONTAINER CORPORATION 591 United States Department of Labor. The proposal of the Commis- sioner was as follows : In the interest of National Defense and to promote peace and har- mony at the National Container Corporation plant in Long Island City, New York, I recommend and request that both sides agree to the following: 1. The Union immediately call off the strike and all strike activities. 2. The Company immediately discharge all new workers employed by it since March 20, 1941 in its maintenance and production depart- ments. 3. The Company proceed to rehire the workers who struck on March 20, 1941. 4. The Company employ no new employees in its maintenance and production departments until all available striking workers have been rehired. 5. The Union immediately withdraw all complaints and charges now pending with the Labor Board and the Company immediately withdraw its charges against any of the strikers. From my knowledge of the situation I have reason to feel that with the acceptance of this recommendation it should be possible to over- come all obstacles and bring about industry-wide collective bargain- ing which must inevitably inure to the benefit of the workers and all those interested in the industry. On April 4 the respondent accepted in writing the proposals of the Commissioner. On April 4 and 5, Local 65 held. meetings at which the Commissioner's proposals were accepted. On April 7 the em- ployees returned to work. 7. Conclusions as to interference, restraint, and coercion. A study of the record in this case indicates, and we find, that from early in January 1941 through the period which followed shortly after the settlement agreement of April 4, 1941, the respondent engaged in a coercive course of conduct to undermine Local 65 and to assist Local 411 in its organizational campaign. After discharging Sugar- man, Local 65's first proponent, the respondent took affirmative steps to frustrate the campaign of Local 65, and called in the representatives of Local 411 to assist in its campaign to destroy Local 65. There- after, the respondent furnished Local 411 with the names and addresses of its employees; sent a number of its employees to the headquarters of Local 411 to aid in the organizational campaign.; -permitted its foremen and supervisors to solicit memberships in behalf of Local 411 in the plant; vilified, disparaged, and ridiculed Local 65 and its representatives, thereby intimidating and coercing the employees against joining that organization; interrogated its employees concern- ing union affiliation and activities ; kept under surveillance the meet- 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing places, meetings and activities of Local 65; threatened to close its Long Island City plant in the event Local-65 should successfully organ- ize said plant; required, as a condition of employment, that employees should not display the insignia of Local 65; and advised and urged its employees to form Local 411 as a rival labor organization. We find that by these acts the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. As a result of these unfair labor practices the employees called a "holiday" on February 1, which they characterized as a strike on February 3. As we have heretofore found, the strike was caused, at least in part, by the unfair labor practices of the respondent. During the course of the strike, the respondent made repeated efforts to induce its employees individually to return to work and thereby to repudiate Local 65 as their representative, continued to demonstrate its opposi- tion to Local 65, and further supported Local 411. We find that by such conduct the respondent interfered with; restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and thereby prolonged the strike. On March 6 the strike was settled by the execution of a consent election agreement by the parties. Shortly thereafter the respondent, in violation of the Act, as hereinbefore found, demanded that certain of its employees, who were wearing Local 65 steward buttons, remove such buttons. Upon the refusal of certain of the employees to do so, the respondent, as, hereinafter found, discriminatorily discharged 4 of its employees. This discriminatory conduct caused a stoppage of work on March 13 for a period of about 11/2 hours. As hereinabove found, the stoppage was caused by the respondent's unfair labor prac- tices. When the employees returned to work the following morning, the respondent, as hereinafter found, discriminatorily locked out 46 employees for a period of about 3 hours. When Local 65 scheduled a meeting for the evening of March 19, the respondent, departing from its usual practice and for the purpose of preventing its employees from attending such meeting, scheduled overtime for its entire plant for that day. When Local 65 complained about the respondent's action in scheduling overtime, the respondent agreed to permit its employees, for the most part, to leave when their work was finished. This, the employees did. Nevertheless, on the following morning the respondent, as hereinafter found, again dis- criminatorily locked out 18 employees. This discriminatory conduct caused Local 65 to call the second strike on March 20. This strike was also caused by the unfair labor practices of the respondent, as hereinabove found. The strike was settled on April 4. However, -the unfair labor prac- tices of the respondent did not cease. As hereinafter found, the re- NATIONAL CONTAINER CORPORATION 593 spondent thereafter discriminatorily refused to reinstate certain- of its' employees in violation of its settlement agreement. • Under, these circumstances its contention that the settlement agreement of April 4 is a bar to this proceeding, is without merit. B. Discrimination in hire, tenure, and conditions of employment; -- further interference, restraint, and coercion 1. Ira Sugarman The complaint alleges that the respondent discharged Ira Sugarman on or about January 8, 1941, because of his union membership and activity. • - As above found, Sugarman-was Local 65's first proponent in the respondent's plan. 1 He joined Local 65 on July, 10, 1940, and there- after actively promoted the Union by holding meetings, soliciting members, and advocating unionism to his fellow employees. During the Union's early organizational stage he signed up some of the 'most active Local 65 leaders, such as 'Kinstler and Landsberg. In sum, Sugarman was an active union protagonist. Sugarman testified that he was employed by the respondent in April 1940 as a clerk in the factory office at $16 per week. , His duties con- sisted of timekeeping, weighing'trucks, administering first aid, acting as stock clerk, driving the company station wagon, and other mis- ce]laneous jobs. He testified that his first pay check was in the amount of $18, and that when he asked his supervisor, David Baff, the reason for the additional amount, Baff told. him, "Well, we think you deserve, it"; that about 2 weeks before his discharge, Baff encouraged him to get acquainted with the duties of a second clerk in the office so- that he could assume Baff's duties on occasion, particularly if Baff went on vacation ; that about a week before his discharge, Baff told him that Baff was slated for a promotion and that Sugarman was the logical man to fill his job; that at that time he had asked for a raise in salary and was told by Baff to wait until he had finished some cost record work in which he was then engaged. He further testified that at the close' of the work day of January 8, 1941, Baff invited him to the upstairs stockroom where they could converse without being overheard; and that Baff told him there, that he was' not displaying sufficient interest in his work. Sugarman testified that he protested the statement, whereupon Baff replied that the respondent felt there was no further, ,need for him and that.he should get his pay that evening. Sugar- man then asserted that he was being discharged for his union activ-' ities, to which Baff answered, "Well, if you had not," and the conversation ended. 601248-45-vol 57-39 594 , DECISIONS OF NATIONAL LABOR' RELATIONS BOARD , ' Baff testified that he had been very "disappointed' in Sugarman's work and had complained about it for several months prior to Sugar- man's discharge. ' In a written report to Goldberg, dated January'10, 1941, Bad gave as "all" of his reasons for discharging Sugarman the 'following : . Lack of•Ambition:'When hired he was given to understand that I needed an assistant capable of assuming some of my duties. All along he seemed satisfied to perform his clerical duties,and showed no desire to improve. I spoke to him several times about this but it didn't seem to impress him. When he asked for a raise before Christmas, I refused to give it to him expressing my disappoint- ment over his lack of ambition and told him that unless he showed signs of improvement, I would get someone else. Infraction of Rules : It was brought to my attention that he authorized the payment of wages to employees who forgot their badges. When confronted with this, he admitted getting no authority but explained that he "thought it was alright for him to do so." On another occasion he went home, and left the office unattended without saying anything to me'eveh though he knew that the other man went home sick earlier in the day. On the few days preceding his discharge repeated attempts on my part to induce him to get on with his work a little faster seemed to fall on deaf ears. 'The inventory work he was doing was dragging and far from completion. Baff testified that "about a month or a month and a half" prior to Sugarman's discharge he discussed the ' matter with Goldberg; who concurred with him in his decision to make the discharge for reasons stated in' the report; that after the' discharge he received no request from Goldberg for a report; and that on January 10 he sent the above report to Goldberg as a' matter of course. On the other hand, Gold- berg testified that when Burke, the representative of Local 65, visited him on January 9 with regard to Sugarman's discharge, he told Burke that he knew nothing about Sugarman's discharge and thereafter sent Baff a note,requesting a report. Baff also testified that the alleged infraction of rules, relating to Sugarman's leaving the office unattended, occurred several months prior to his discharge. Baff's testimony, relating to Sugarman's al- leged infraction of rules by the unauthorized payment of wages to employees who forgot their badges, is as follows : "During the sev- eral years that he [Baff 1 worked for the respondent, pay envelopes were distributed by a .bonded agency which was forbidden to pay an em- ployee who, did not present his badge, unless authorized by Goldberg, Gruneisel, Spengler, or Baff." "Four, five or six weeks" prior to Sugarman's discharge, Gruneisel reported to Baff that Sugarman had NATIONAL CONTAINER CORPORATION 595 authorized the agency to pay an employee who did not have his-badge with him at the time. Baff was confronted with seven time cards which showed many instances of infractions of the same rule by em- ployee, Joe Pointes, who succeeded 'to Sugarman's job. Pointes, otherwise, was a competent employee; however, Baff testified that if Pointes' infractions of the rule had come to Baff's attention, he would have' discharged Pointes. Pointes was hired by Baff at the rate of $16 per week, as were factory office clerks who had preceded Sugarman and had' been 'promoted. Baff testified that when Sugarman was'hired, he was put on probation for several months at $18 per week. Baff further testified that several weeks prior to, January 8 he had made up his mind to discharge Sugarman as soon as he- could find someone to replace him. However, after, he discharged Sugarman, he did not replace him until 3 or 4 weeks later. Baff made no attempt to explain the sudden decision to discharge him on January 8. As hereinafter found in connection with the case of Gerald Davis,-Baff told Gerald Davis on January 9 that Sugarman's discharge ". . . was something about unions." The contradictions in the testimony of Goldberg and Baff, the remoteness of the alleged infractions of rules, the fact that Sugarman was hired as a probationary employee at the rate of $18 per week, whereas his predecessors and his successor were hired at $16 per week, the sudden decision to discharge him 3 or 4 weeks before a re- placement was made, and Baff's statement to Gerald Davis on January 9, all combine to indicate that Baff's charges against Sugarman -Vpere unwarranted and merely pretexts. We, as did the Trial. Examiner, reject Baff's testimony. We find that the respondent on January 8, 1941, discharged Ira Sugarman because of his union membership and activities, thereby 'discouraging membership in Local 65 and inter- fering with, restraining, and coercing its employees, in the exercise of the rights guaranteed-in Section 7 of the Act. Following his discharge, Sugarman continued his activities on behalf of Local 65. About January 20 while having lunch with some of his friends in the plant restaurant, which caters to the public also; he was ordered to leave by Ginsberg on the threat of calling the police. 'Ginsberg denied the incident. In view of the severe action which the respondent took to rid itself of Sugarman's influence among its em- ployees, it is not unreasonable to believe that it would order him out of the plant restaurant. We discredit Ginsberg's denial and find that about January 20, 1941, he ordered Sugarman out of the plant restau- rant on the threat of calling the police. While picketing -during the first strike, Sugarman joined a group of other pickets in singing a song called "Sixty-Five is our Union." 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kipnis heard the singing and broke in with the remark, "I will bargain with 64 or-bargain with 66 but not with 66. Why d'on't you change the number of your union." We credit Sugarman's testimony and find that the. incident occurred as testified by him, despite Kipiiis' denial. During the first'strike Sugarman observed Goldberg and Kipnis in, the vicinity of strike headquarters speaking to some of the workers. Sugarman went to them and asked Goldberg what they were "doing here speaking to'the workers.". Goldberg then shouted to Sugarman, "You' are a spy, you are a spy for the Union." - Kipnis joined in with the charge "You are a traitor to the Company." Kipnis and Goldberg denied the testimony of Sugarman. In view of all the evidence and the fact that counsel for the respondent intimated during the hearing that Sugarman had been planted by Local 65 to stir up trouble in the plant, we conclude that Goldberg and Kipnis interpreted Sugarman's activities in behalf of Local 65 as traitorous to the respondent. We, like the Trial Examiner, therefore, discredit the denials of Goldberg and Kipnis and, accept as true the testimony of Sugarman with respect to the above incident. On March 10 Sugarman, in accordance with 'the provisions of the, consent election agreement of March 6, returned to work with the other employees. Baff told him to wait in the lobby of the factory office. When everybody else had gone to work, Baff called him into the factory office -and told him that he was not to resume his former duties but was to "stay out in the scale house all day long." Sugarman protested the new assignment and was told by Baff, "if you don't like it you know what you can do about it." His former job was filled by Pointes at that time.. Prior to his discharge; his 'weighing duties required less than 1 hour of his time per day. Moreover, his starting hour was changed from 8 a. in. to 7: 30 a. in. Prior to his discharge trucks, which required weighing before 8 a. in., were weighed by the night watchman. Sugarman assumed his duties as requested. He was kept. busy less than 1 hour per day. During the first few, days on 'his new job; Sugarman kept the door of the scale house open and greeted his friends as they passed by. However, Baff prevented-this by ordering Sugarman to keep the door closed on penalty of discharge. Sugarman remained with the respondent in his new duties until the second 'strike started on! March 20. Thereafter, he did `not return; nor has he been offered reinstatement to the job from which he was discriminatorily discharged on January 8, 1941, despite the respond- ent's promise to recall all striking employees pursuant to the settle- ment agreement of April 4, 1941. Baff testified that it was necessary to keep Sugarman in, the scale house because the traffic in, trucks' bringing in and taking out mer- chandise was tremendously increased when operations were resumed I NATIONAL CONTAINER CORPORATION 597 after the first strike,"and that Pointes, who had succeeded to Sugar= man's job, was unfamiliar with weighing. This defense is without, substance. We find that Sugarman was entitled to his old job, even though the respondent was compelled to discharge Pointes. We, find that the respondent, by assigning Sugarman to the scale house on March 10,1941, discriminated with respect to his hire and tenure of employment because of his union membership and activities, thereby discouraging membership in Local 65, encouraging member- ship in Local 411, and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. We further find ' that the respondent, by excluding Sugarman from the restaurant and by Kipnis' statements to -Sugarman, accusing him of being a spy and a traitor, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Sec- tion 7 of the Act. Finally, we find that since January 8,'041, Sugar- man has not been offered nor has he received from the respondent reinstatement to his former or substantially equivalent employment. 2. Joseph Valentine, Paul Cianci, Sam Kinstler and Barney Landsberg The complaint alleges that the respondent on or about March 13, 1941, discharged,,locked out, and refused to employ Joseph Valentine, Paul Cianci, Sam Kinstler, and Barney Landsberg 35 because of their membership in and activities on behalf of Local 65. We have, previously found that Valentine and Cianci were dis- charged by the respondent on March 13, 1941, because they refused to comply with their superiors' orders to -remove the Local 65 steward buttons which 'they were wearing; and that when Kinstler and Lands- berg protested the discharges to Goldberg, Spengler, and Gruneisel, they too were told that they could not work unless they removed their steward buttons, which they refused to do. Burke testified without contradiction that on March 13 Paskes; attorney for the respondent, told him that he understood the men had been discharged for wearing steward 'buttons. The respondent contends that the status quo provision of the March 6 consent election agreement was violated by Local 65 in designating stewards. That paragraph of the .agreement follows the paragraph which provides that the respondent will reinstate all employees who were on the respondent's pay roll on January 28, 1941, without discrim- ination, including Ira Sugarman; the provision in question reads as follows : ' The status quo existing during the period prior to the strike shall be restored as rapidly as the circumstances permit. Work shall be, distributed without prejudice or discrimination. 0 The complaint also named Joaquin Candanedo . As to him we shall dismiss the com- plaint since admittedly, he was not discharged. 598 DECISIONS OF NATIONAL LABOR-RELATIONS BOARD We agree with the Trial Examiner, and find that the status quo provi- sion clearly refers to the restoration of the strikers to their jobs and does not place any restriction on the legitimate activities of the Union or the employees. I The respondent also contends that stewards had no right to wear their buttons until Local'65 "hasibeen determined as the bargaining agent." That contention is without merit. The steward button indi- cates the rank and function of the'wearer in Local 65, regardless of whether the organization represents a minority or a• majority 'of the employees. As hereinabove found, to order the removal of the stew- ard's button constituted an interference with the rights guaranteed in Section 7 of the Act. We find that Valentine, Cianci, Kinstler, and Landsberg were justified in refusing-to obey such orders and that the respondent's. act in discharging them upon such refusal constituted a discrimination against them within the meaning of Section 8 (1) and (3) of the Act. We find that the respondent on-March 13, 1941, discriminatorily disclharged Joseph Valentine, Paul' Cianci, Sam Kinstler, and Barney Landsberg for the reason that they refused to remove their steward buttons when ordered to do so by the respondent,'thereby discouraging membership in Local 65, encouraging membership in Local 411, and interfering with, restraining, and coercing its employees in the rights 'guaranteed in Section 7 of the Act.36 3. The lock-out of. March 14, 1941 The complaint alleges that the respondent on or about March 14, 1941; discharged, locked out, and refused to employ 47 named employ- ees because of their union membership and activities. We have found above that as the workers came to the plant on the morning of March 14 ready to go to work, many of them were asked to step aside by the respondent's officials and were, refused access to the plant. A stoppage had occurred on the previous afternoon because of the respondent's discriminatory order directing 66 stewards to re- move their steward buttons- and because of ',the discriminatory dis- charges of Cianci, Valentine, Kinstler, and Landsberg when they refused to obey the order. The respondent contends that, those employees were told to wait around so that Kipnis could speak to them after the other employees had gone to work and that instead of waiting they went to_ union head- quarters. Board witnesses Landsberg, Kinstler, and Burke testi, 'fled that when the workers came to the plant, Gruneisel refused to permit them to work and told 'them to go to union headquarters "Armour & Company, et at., 8 N. L. R. B. 1100 ; Republic Azaation Corporation, 51 N L. R B 1186 , enforced in 142 F . ( 2d) 193 ( C. C. A 2). NATIONAL CONTAINER CORPORATION 599 instead. Burke asked•Kipnis the reason for this, but Kipnis refused to discuss the matter with him. Kipnis testified that he had never spoken to a representative of Local, 65. We credit the testimony of Burke; Kinstler, and Landsberg and find that the employees, who were, refused access to the plant on the morning of March, 14, were told by the respondent to go to union headquarters. As above found, they were allowed to go to work at about 11 a. in. after a committee had conferred with Kipnis. The 46 employees who were kept out of the plant on the morning of March 14 are listed in Schedule A, attached hereto and made a part hereof. Except for Nick Varriale, Vitello, and Landsberg, they were all identified by Gruneisel as the employees who were not "per- mitted to work until about 11 o'clock." That the latter two employees were among those excluded from the plant that morning is evident fron7 the fact they were on the committee which, met with Kipnis that morning. We so find.' That Varriale was excluded was not definitely proven: Absent from the list are the names of W. Koprowski and R. Willey. They are employees of a subsidiary of the respondent not involved in this proceeding. We will hereinafter dismiss the, cases of Varriale, Koprowski, and Willey. Kipnis testified that the employees were excluded from the plant on March 14 because they were instrumental in calling or participat- ing in the stoppage on the previous afternoon. We have found above that the stoppage was a concerted protest against the respondent's dis- criminatory order requiring stewards to remove their steward but- tons and the enforcement of that order by the discharge of four stewards. Therefore, by Kipnis' own admission, the respondent was penalizing the employees for engaging in a lawful concerted activity, protected,by the Act. We are convinced that the fact that some of the locked-out employees were stewards and wore steward buttons was an additional reason for the lock-out. We find that the conduct, of the respondent, in penalizing these employees for such reasons is clearly violative of the Act. We find that the respondent on March 14, 1941, locked out the em- ployees named in Schedule A 37 hereof because of their union member- ship and activities, thereby discouraging membership in Local • 65, encouraging membership in Local 411, and interfering with, restrain- ing, and ' coercing, its employees in the exercise of the rights guaranteed in Section 7 ,of the Act. 4. Melvin Schwartz, Harry Davis, Gerald Davis The complaint alleges that the respondent on or about January 31 and March 14, 1941, discharged Melvin Schwartz, and on March 14,' ax The spelling of names in Schedule A conforms to the corrections made at the hearing. 600 ' DECISIONS OF. NATIONAL LABOR RELATIONS' BOARD 1941, discharged- Harry Davis and Gerald Davis because of ^ their union " membership and - activities. The record establishes that Schwartz and the two Davises were the only office employees ofr'the respondent who engaged in the first strike.38 Reference has already been made to Kinstler's testimony that on' March 14 Kipnis refused to reinstate the office employees. Harry Davis testified as follows regarding his employment- and the circumstances surrounding his discharge : 'He was employed by the respondent on September 24, 1939, as an office boy. His starting salary was $14 per week. Six months later he was promoted to the job of ditto operator at $16 per week. About November 1940 he was assigned to assist the checker, whose job it was to check sales depart- ment cards against customers' orders. He then was given another raise of $2 per week. Late in January 1941, he was promoted to the job of checker, On August 26, 1940, Davis joined Local 65. Thereafter, he was active in soliciting his fellow employees to join the Union. At noon on January 30, 1941, he and eight or nine other employees met with Sugarman in a cafeteria near the plant "to discuss the union's prob- lems, of joining up with Local 65." Among those present was Melvin Schwartz, the respondent's office boy, who then joined 'Local 65. On or about January 31, Schwartz was discharged. On the morning of February 1, Davis asked Carl Schaeffer, the respondent's office manager, the reason for' Schwartz's discharge. Schaeffer refused to' tell him,' accused Davis of being insubordinate, and ordered him back to his desk. A -few minutes later Davis pinned a Local 65 button on his coat.39 Shortly thereafter, Goldberg and Ginsberg came to his desk. Goldberg said to him, "Go away from that desk and get back to the corner of that little room and stay there. :. .' From now on you are office boy and you are cleaning everything." Ginsberg ordered Davis to "Leave this firm immediately." As he was putting-on his coat and hat to go, Goldberg told him to stay, and that his-job was office boy. He remained until the close.of the day. On February 3, Davis joined the strike with the other employees: He returned to work with the other strikers on March 10 when the strike ended. At that time Schaeffer assigned him to work in the upstairs stockroom 40 and told him that from then on, his duties were to clean the stockroom and 'be stockroom boy. Prior to the strike the cleaning of the stockroom had been done once a year and was about 1 day's work for those assigned to the job. !The duties of the stock- I N ° At that time the respondent employed about 45 office workers 0 Schaeffer testified that he saw Melvin Schwartz and Harry Davis occasionally wear their union buttons in the office. 40 The stockroom is used for storing company records and supplies, and is a room distinct from the main office but contiguous to it. 1, 1 NATIONAL CONTAINER CORPORATION 601 room boy had been incidental to the job of the office boy. Davis-pro- tested the assignment and was told by Schaeffer to take the job or go home. Davis reported this to Burke who told Davis to do as he was told, until after the. election, which was to be held in 3 weeks. Davis ;took the job. • I , During the day, March 10, he left the stockroom to get a broom. .0 1 Goldberg met him and told him to go back to the stockroom, and that he was not to be seen in the office 'or the plant. Later that day, he had occasion to' go to the, toilet. Schaeffer met him and told him that he should not leave the stockroom for that purpose without first getting permission from the office. When Davis told Schaeffer that he had finished cleaning the stockroom, Schaeffer told him to stay there. On March 11, Davis talked to Daniel Broshin, assistant office man- ager, who told Davis that he should quit his job and that he, did not have "a chance here any more." Davis stayed in the stockroom during working hours until the after- noon of March 12. Then Schaeffer sent him on an errand and told him to go home after he had finished. The following morning he sent him on another errand of less than 2 hours duration, and told him to go home when he had completed it. On the morning of March 14,4' when -he reported for work, he was met by Schaeffer who said,"-You can't go back to work this time, .. . it is not your fault this time, but you are told not to report." Upon being discharged, 'Davis went to union headquarters where- he remained during the morning. On the afternoon of the 14th, he, Gerald Davis, and Melvin Schwartz went to the plant and asked Goldberg whether they were still working for the respondent 42 Gold- berg, told them to "Take it as you please." They then asked him, "What is, our status with the company," and were given the same answer. Finally, they asked Goldberg if they were fired, and were told by him, "We will call you again when we feel like it." That ending the conversation. On the same day Davis had a conversation with Alexander Herman, one of the respondent's vice presidents. Herman suggested' that if Davis apologized for his strike and Local 65 activities,'Kipnis would take him back as an employee. Davis refused to do so. Davis has never been recalled to work., Davis' employment history card ,bears the following notation, by Schaeffer in the box headed "Detailed Statement of reason for termi- nation"; "3/15%41 (Sat.) - --- Did not return." The employment history card is a complete record of the employee's status from the beginning 'of his employment and notes any changes that occur dur- 41 It will be recalled that it was on the morning of March 14 that 46 production workers were locked out by the respondent. " At,that time the,46 locked-out employees had returned to work. 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing the employment period. On July 24, 1941, Kipnis wrote a letter to the Regional Office of the Board wherein he stated: ' Re :-Harry Davis-he was 'discha'rged for insubordination .. _. , as Mr. Goldberg; our general manager, could not tolerate the manner in which this young man spoke to' him in ' front of • our office force of about 40 people. Goldberg testified that he knew that Davis had been discharged "at one time'for, insubordination"; and that the respondent had no, record of his discharge, for that cause, which would normally be noted on Davis' employment history card. The only instance of alleged in- subordination toward Goldberg that he testified about concerned an' alleged statement by Davis to Goldberg that Davis was looking for- ward to the day when Goldberg would be working for Davis. Davis denied the statement. Goldberg testified that that -statement was made about March 11 in the upstairs stockroom, which is out of sight and hearing of the office force. We reject Goldberg's testimony and credit Davis' denial in this respect. Schaeffer testified that he was in charge of the office force ; that Davis was never discharged, but just `did not show up, for work on' March 15 or thereafter; and that he knew of nobody else who could have discharged Davis. He testified also that if Kipnis had been informed that Davis was discharged for insubordination, his informs; tion was inaccurate. • In view of the inconsistencies in the testimony of Schaeffer and Goldberg, Kipnis' letter to the Board, and Davis' employment history cards, it is apparent, and 'we find, that the respondent had, and gave ,no legitimate reason for discharging Davis. Schaeffer admitted that Davis was -assigned to the duties at the times specified by, Davis in his testimony. He denied that he restricted Davis in the use of the toilet or that i he had the conversation with' Davis on the morning of March 14 as above set forth. We, like the Trial Examiner, do not credit the denial and find that the conversa- tion occurred substantially-as related by Davis. Nor do we credit Goldberg's denial that he ever met with Harry Davis, Gerald Davis, and Melvin Schwartz, or that he restricted Davis' activities to the stockroom. Herman, a vice president of the respondent, testified that he asked. Davis to apologize to Goldberg for having told Goldberg to go to hell and for stating that he hoped that some day•Goldberg would be work- ing for Davis. This is the first and only time the word "hell" appears in connection with the alleged insubordination- on the part of Davis. Davis testified that Herman merely asked him to, apologize for hav- ing engaged in union activities. • We reject Herman's version of the ti NATIONAL CONTAINER CORPORATION 603 conversation , credit Davis' testimony in that regard, and find that the conversation 'took place substantially as related by Davis. Broshin did not testify. The Trial Examiner found , and' we agree, that he advised Davis to find another job because he was aware of the respondent's antipathy toward Davis. We have found above that when the committee of locked -out em- ployees met with Kipnis on the morning of March 14, he stated that all the employees would return to work except the office workers, viz : Harry Davis, Gerald Davis, and Melvin Schwartz ; also that on that morning Schaeffer told Davis , "... it is not your fault this time, but you are told not to report ." The evidence establishes that Davis had performed his duties satisfactorily and in accordance with instructions from his superiors, and that he had done nothing to merit discharge except actively engaged in Local 65 activities , which were distasteful to the respondent. The fact is evident also from Schaeffer 's state- ment to Davis, "it is not your fault this time . ..," from Broshin's advice to him to look for another job, and from Herman's admonition that he apologize for his Local 65 activities . Nor does the credible evidence disclose that he merited the punishments inflicted upon him by the changes of jobs and restrictions on February 1 and March 10. We find that the respondent on February 1 and March 10, 1941, discriminated with regard to the hire and tenure of employment of Harry Davis because of his membership in and activities on behalf of Local 65, thereby discouraging membership in Local 65, encourag- ing membership in Local 411, and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Sec- tion,7 of the Act. We further find that the respondent on March 14, 1941 , discharged Harry Davis for the reason that he was a member of Local 65 and joined in Local 65 activities ,- thereby discouraging mem- bership in Local 65, encouraging membership in Local 411, and inter- fering with, restraining, and coercing its employees in the rights guaranteed in Section 7 of the Act. Gerald Davis was employed by the respondent in April 1940 as second assistant to Baff at the rate of $16 per week . About 3 months later he was promoted to the job of first assistant. In September 1940 he received a` $2 pe'r week raise `in pay. As Baff's first assistant he took dictation from him, handled his correspondence, checked and stored materials 'which came to the office , handled taping and inven- tory records, weighed trucks and checked men in the factory. Davis testified that Baff told him on January 9 that S,ugarman's discharge "... was something about unions," and asked him how -he felt about unions. Davis told Ball that he was in hearty accord "with the union organizing the men in the factory . . ."; to which Baff answered , "Suppose I take some drastic action on that." 'While Baff N 604 . J DECISIONS OF NATIONAL LABOR RELATIONS BOARD denied,having made-the statements attributed to him by Davis, we do' not credit Baff's denials. ' On January 30 Davis joined Local 65. On February 3 he joined the,strike with, the other employees and continued in that activity, until the strike was settled. On March 10, he returned to the plant with the rest of the strikers to'go to work. , There, according to Davis, Baff told him to go up- stairs and work in the st6ckroom,43 "and stay up there. Don't come downstairs and talk to any men or disturb any men in the factory " Davis reminded Baff that the March 6 agreement provided for reinstatement without discrimination, to which- Baff replied that Davis had done stockroom work before the strike-and "Well, you will do it now." Davis-asked him what duties he was to perform in the stockroom and was' told, "Well, you take inventory again," 44 and that he was to hand out such stocks as are asked for. Davis took the new job. Prior to the strike he had not spent as much as 3 hours per day 'in stockroom duties, nor lhid the respondent employed anyone for full time stockroom work.' Neither had anyone previously been con- fined to the stockroom exclusively, or been forbidden to talk to fellow employees. , Davis further testified that -about March 12 Kipnis came to the stockroom and told him that he could not understand why Davis had joined Local 65 and had become connected with "this riffraff"; that he was a bright, ilitelligent boy and could have gone "far"' with the respondent, but that members of Local 65 do not advance; that Local 65, .does not "raise you up; they pull you down ; they are riffraff; they are communists; they are rats; they speak to you with a stick to beat you over the head to drive their points in." Kipnis denied this con- versation. Upon the entire record, we do- not credit his denial. On the afternoon' of March 13 Davis noticed that the men in they plant had stopped working. He testified that he came downstairs - , to the office and was confronted with a new employee, whose name Davis did not know, but who had taken his job during the strike and still retained it. This employee asked Davis what he was doing in the office. Davis told his successor that it appeared that some union activity was in progress, whereupon Davis' successor warned Davis to go back to the stockroom or he would call Baff. Baff was called. He told Davis to go back to the stockroom; that as an office employee lie had no concern with the activities of factory employees; and that if be did not go back to the stockroom, to "go out." Davis, after a 43 The stockroom serves the factory office for the storing of supplies and is separate and 'distinct from the main office stockroom . There is no chair in the room'-and the only walking space in it is a corridor about 4 feet by 3 feet 44 Davis had, taken inventory in December 1940, a job which two men could finish in 1 day. } NATIONAL CONTAINER CORPORATION '605 few- moments, went out. He thereby joined his fellow employees in their concerted activities which resulted in the stoppage of Match 13 and which we have heretofore found was caused by the unfair labor practices`of the re'spondent.' On the morning of March 14 Davis reported for work as usual. Ball met him and told him that there- was no work for him. He asked Baff if he was laid off or discharged and what status lie had with the respondent. Baff's final answer was, according to Davis, "You can't' get me to say anything. All I am telling you is there is no more work." Davis left. 'As he was leaving the plant, lie met Melvin Schwartz. The two of them went to,union headquarters; where they met Harry Davis. Later that day Harry Davis, Gerald Davis, and. Melvin Schwartz went to see Goldberg. Thus, Gerald Davis' testimony in respect to that meeting substantially corroborates the testimony of Harry Davis, as above set forth. We find that, in addition to Harry Davis' testi- mony with regard to that conversation, Goldberg said, "You ,^aunt,a statement from me for the Labor'Board." Gerald Davis has not been recalled to work for the respondent. He is now serving in the armed forces of the United States. Baff is also serving in the armed forces of the United States. He did not materially negative the testimony of Gerald Davis. On March 15 he sent to the front office of the respondent in the regular course of business the following communication:. SUBJECT: DISMISSAL OF BOB (GERALD) DAVIS Since his return to.work on Monday, March 10th; his manner was arrogant and his tone condescending. He reported late for work every morning from Tuesday 'to Friday and while he stayed late to make up the lost time he com- plained about the schedule of hours. He indicated that he did not like the work assigned to him and kept annoying me with requests to 'change his work. When the factory, employees stopped working at 3 p. in. on Thursday, he also stopped working and insisted on joining the others. (His people he called them.) . He was told not leave the office. and sat in the factory vestibule orating to the watchman and others present on the benefit, etc. of the New Order which the labor union would bring about. He remained there for approximately two hours and because of this, the scale was unattended from 4 to 5 p. in. . He was not permitted to return to work that day or, the follow- ing day. Baff remembered the conversation with Davis relative to his duties in the stockroom after the first strike on March 10, and did iiot deny 606 -DECISIONS 1OF- NATIONAL LABOR RELATIONS BOARD that the conversation was, substantially as related by Davis./ He sought to justify Davis' new assignment by the following testimony : It was necessary to assign him to the stockroom because of the condition _of the stockroom for one thing. He had already been replaced by another employee, and so I assigned him to the -stock- room. Baff denied that he confined Davis to the stockroom and restricted him from talking to other employees. However, Davis' testimony that his successor Warned him to go back to the stockroom on March 13 on the penalty of calling Baff, is undenied. The successor called Baff and Baff ordered Davis back to the stockroom. We, like the Trial.Examiner, reject Baff's denial. In addition to the fact that the settlement agreement of March 6 provided for the return of the 'strikers without discrimination, it is well settled that a refusal to reemploy a striker is a violation of Section 8- (3) of the Act, where, as'here, the strike was caused by the unfair labor 'practices of the respondent. Davis was a participant in an unfair labor practice strike. When he returned to,the plant to go to work on March 10, he was entitled to his former job, even if it were necessary to discharge his successor. The credible testimony dis- closes, and we find, that the respondent gave no reason, other than that his job had been filled by a strikebreaker, for refusing him that job. - We credit the 'testimony of Gerald Davis with respect to his-con- versations with the respondent's officials and with respect to the events which culminated in his discharge, and find that on March 10, 1941, the. respondent discriminated with regard to the hire and tenure of employment of Gerald Davis for the reason that he was a member of and joined in the union activities of Local 65, thereby discouraging membership in Local 65, encouraging membership in Local 411, and interfering with,-restraining, and coercing its. employees in the exer- cise of the rights guaranteed in Section 7 of the Act. We further find that the respondent discharged Gerald Davis on March 14, 1941, be cause of his membership in and activities on behalf of Local 65, thereby discouraging membership in Local 65, encouraging membership in Local 411, and interfering with, restraining, and coercing its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. We also find that the respondent on March 12 vilified and dis- paraged Local 65 and its leaders as part of its course of conduct, in- terfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. Melvin Schwartz did not testify. The evidence establishes that he was the respondent's office boy. He joined Local 65 on or about 'Jan- uary 31,. On the same day the respondent discharged him. No 'evi= k NATIONAL • CONTAINER CORPORATION 607 deuce was offered as to the• respondent's reason, for discharging him, despite the fact that the complaint alleged that Schwartz was dis- charged because of his union membership and activities. He joined the strike on February 1 and continued as a striker until the end. On March 10 Schwartz returned to his job as office boy. On'March 14 he was denied the right to go to work. The respondent offered no reason for discharging him, and when he, with the two Davises asked Goldberg on that day if he was discharged, Goldberg refused to answer, stating that the employees wanted a statement for the "Labor Board." Schaeffer testified that he had seen Schwartz and Harry Davis wear, their union buttons in the office. The facts and circum- stances in the case lead us to find that the respondent discharged' Schwartz on January 31- and March 14 because it knew of and resented his union activities, thereby discouraging membership in Local 65, encouraging membership in Local 411, and interfering With, restrain- ing, and coercing its employees in the exercise of the rights guaran- teed in Section 7 of the Act. ' 5. The lock-out of March 20 The complaint alleges that the respondent on or about March 20 , discharged, locked out, and refused, to employ'21 named employees because of their union membership and activities. Gruneisel testi- fied that all the employees so named in the'complaint were kept from work that morning except Benjamin Migdalski, Stella Stevens, Her- man Rivera, and Bernard Herr. The time cards show that Migdal- ski, Stevens, and Rivera worked on March 20. We shall dismiss the complaint as to-these employees. As is hereinafter found, Herr was kept out of the plant with the others, all of whose names appear in Schedule B, which is attached to and made a part of this Decision and Order. As above found; a number of men were picked out of line when-they reported for work on March 20. The decision' to lock out the em- ployees named in Schedule B was arrived at on the evening of March 19 at a meeting between Kipnis, Goldberg, and Gruneisel. The testi- mony of Gruneisel, who appears to have selected the men,.as to the basis for his selections was replete with contradictions. He'stated that "those selected were the ones who started a-walk-out on the 19th, left their. machines running, causing damage to paper, and walking, out of the plant 'without anyone talking to them or anything else." He then testified that he picked out people who were machine tenders or, had anything to do with a machine. He stated first that he was sure that he did not select employee Bernard Herr on that, morning because Herr had nothing to do with a machine, then because Herr did not work in the department that walked out, and finally admitted 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Herr was working in the fibre department that walked out, then admitted that Herr was working in the fibre department which was, supposed to work until 6. Gruheisel testified that those kept out on the 20th had caused damage, disturbance, and fights, and again, that all'- of ,them- had -somethiiig to do with the istoppage and leaving machines running, and finally that he selected only the "ring leaders." Herr, whose testimony we, like the Trial Examiner, credit, testified that he was one of the employees who was kept out, on the -20th, and that he worked on the evening of the 19th until his foreman, Lombardo, told,hiin to-go home. The respondent's time cards'show that'Herr worked until 5:16 p. in. 'on the 19th and did not work on the 20th. We find that Herr was denied entry to the plant on the 20th. Goldberg testified that the employees, who were picked 'out on the 20th, were those who did not work until 6 p. in. on the 19th, and further stated that he believed certain departments were not supposed to work until 6 p. in. Kipnis testified that certain employees were asked to step aside and find out why, "when their own men agreed to certain- things and they do not back their own committee." - We find that Gruneisel's claim that he selected the men on the basis of their operation of machines is without foundation in view-of the fact that, with but three or four, exceptions, he'admitted that none of those selected was a machine operator or had left his machine running. Although the foremen of the slitting and nesting' departments testi- fied, neither,of them mentioned that any niachines had been left running on the 19th. These were the two departments in which Gruneisel testified that such a condition existed. - It thus appears that, in addition'to Gruneisel's contradictory testi- mony as to the reasons for keeping the, employees from going to work on the morning of March 20, neither Kipnis nor Goldberg corrob- orated 'him. We reject as incredible his testimony concerning the reasons for locking out the-employees , on March 20. The time cards show that all but 68 of the 232 employees who worked on March 19, punched out before 6 o'clock. Still, only 18 men were locked out. We find, therefore, that the reasons given by Goldberg have no basis in fact. - We have found above that the committee which met with Kipnis on Marcli 19 agreed that the combiners would work until 6 p. in. and the other departments would work so -long as there was work to be' done, but not-longer than 6 o'clock; and that Kipnis was told that since' the committee did not represent the union members, it would not take the 'responsibility of binding * the employees to the agreement. It thereupon devolved upon the respondent to notify the employees in the usual and customary way, which, v'as by its foremen, of the new - overtime order. IThe evidence establishes that it did not'do so. The combiners worked until 6 o'clock. Goldberg testified that he believed NATIONAL CONTAINER CORPORATION 609 that certain departments were not supposed to work until 6 p. in. It therefore follows, and we find, that no agreement:was broken when some of the eniplcyee-s left at the usual quitting time- and others',there- after worked' until after 6 p. in. We further find that the respondent's dealings with a non-representative and unauthorized committee of the employees was calculated to and did confuse the workers as to the overtime requirement and that the confusion was aggravated by the failure'of the foremen in some departments to ask their employees to work ove`rtime'. In addition, we find that Kipnis' reason for locking out the employees on the morning of March 20 is without merit. As we Jade hereinabove found, the overtime order of March 19 was discriminatorily designed to keep the respondent's employees from attending a previously scheduled meeting of Local 65. We further find that the employees named in Schedule B attached hereto, were locked out of the plant by the respondent on the morning of March 20 because of their union membership and activities in attending the, previously scheduled meeting of- Local 65 in disregard of the discriminatory overtime order. • The respondent denies that the workers who were locked out on March 20 were discharged. The pay roll for. the week ending March 18 shows that the entries opposite the names of each of the employees locked out on the'20th appear in distinctive green crayon;'' a check was drawn on March 20, which was not a pay day, covering the pay of the employees-locked out on the 20th,-not only,for the pay due them for the week ending March 18, but also for one additional day's pay, viz; March 19, which normally would not have been paid until March 28. , Gruneisel, whose testimony was admittedly hearsay, testified that the' drawing of this check was an accident' which resulted' from the fact that an office-boy erroneously took the time cards and time war- rants of these employees from Gruneisel's desk to the pay-roll depart- ment where another error-was made in drawing a check for their pay. He could not explain why only these cards were removed from his desk' by the office boy and not other time cards of absentees, which- were there; nor' could- he cite another instance when such a 'mistake had been made. The pay-roll clerk with first-hand knowledge of the facts was not called to testify. It is the contention of the respondent that the green crayon entries have little significance because two of the employees whose entries are also in green crayon, -viz: Goldstein and Horowitz, were locked out that morning and were not so alleged in the complaint. The respond- ent made the same claim 'concerning Herr, whose entries also are in u In addition to those named In Schedule B, the pay roll carries similar entries as to employee Canderelli , who admittedly was in the excluded group 601248-45-vol 57-40 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD green cr'ayon and who is alleged in the complaint to have been locked out on the 20th. As above found, Herr was locked out on the,20th. Canderelli, who was admittedly locked out on the 20th, also has his entries, in green crayon; yet his name is not alleged in the complaint. The time card records show that neither Goldstein nor Horowitz worked on the 20th; no credible explanation of their absence was given by the respondent. Both Goldstein and Horowitz were members of Local 65; having joined on January 21 and January 14, respectively. Although the time cards show that about 40 workers (excluding those on the night shift) did not report for work on March 20, and although Gruneisel's explanation of the alleged mistake involved the-commm- gling of the cards of the locked-out employees with those of absentees, and although some non-members of Local 65 were absent on the 20th (i. e. DiGeorgio J-31, and Leff J-62), it is noteworthy that only Local 65-members are included among the group whose pay,was drawn on the 20th. Gruneisel admitted that he had segregated the time cards of the locked-out group on the 20th, which, we find, indicates that the cards of Horowitz and Goldstein were included in this group when the cards; were taken to the pay-roll department. We also note that on the 19th Horowitz and Goldstein punched out, at about the same time as employees Kiezak, McCarthy, and Herr., It is reasonable to assume, and we find, that since the latter employees were locked out, Horowitz and Goldstein ,were accorded the same' treatment. Even if Goldstein and Horowitz were mere absentees on March 20, the re- spondent offered no credible explanation of the pay-roll entries con- cerning the other locked-out employees,'and of the fact that a check was drawn for their pay on the 20th. Kipnis,did not deny having given instructions to draw the pay check for this group of employees; nor to pay them off. ,, This, he said he could not recall because "It is such a trifling matter to me." In view of all the evidence we find that the respondent's pay-roll records indicate that the respondent intended to pay off the locked-out employees on the 20th; that a pay check was drawn-for this purpose; and that the respondent's contention that it had no intention to, and did not; discharge any one on that day has no merit. We find, further, that this evidence corroborates that'of Burke regarding the instruc- tions given the men to come back for their pay, as above set forth. From a consideration of 'all of the evidence, we find that the re-, spondent on March 20,•1941, locked out and discharged the employees named in Schedule •B hereof because of their union membership and activities, thereby discouraging membership in Local 65, encouraging membership in Local 411, and interfering with, restraining, and coerc iiig. its employees in the exercise of the rights guaranteed in Section 7 of the Act. U NATIONAL CONTAINER CORPORATION , ' 611 6. Lionel Medina, Harry Brown, Harry Davis, Joseph Valentine, Stephen Arvay The complaint alleges that Lionel Medina on April 4 and 10, Harry Brown on April 4, and on various occasions thereafter, Joseph Valen- tine and Stephen Arvay on April 7, and Harry Davis on March 10, applied for and were refused reinstatement by the respondent to their former or substantially equivalent employment, for the reason that they joined and,assisted Local 65. The case of Harry Davis has been discussed. above in Section 4. As,-stated hereinabove, the second strike was settled on April 4 by the parties' acceptance of proposals submitted by Comiiiissioner Liller. 'It is undisputed that the respondent undertook to ' telegraph, those employees whom it was ready to reinstate that work was available. There was no duty on the part of the workers to apply for reinstate- ment in the absence of such notice:- Nevertheless, on April 7, the day the notified employees returned to work, Osman, a Local 65 represent- ative, telephoned Kipnis and told him that some of the employees were refused employment when they reported for work that morn- ing. Kipnis answered, according to the uncontradicted testimony of .Osman, which we credit, "I have nothing to discuss with you. I will hire whoever I please and I will fire whoever I please, and if you do-not like it, you can go plumb to hell." , - - - Lionel Medina did not receive a telegram but reported to the plant, only to be told by Gruneisel that he was not wanted. He has not been recalled to work. Medina joined Local 65 on February 7, 1941. He took part in both strikes. As above found, he refused to cooperate with the respondent in its scheme to promote Local 411. On March 13 he had befriended employee Harry Rodriquez by acting as his interpreter when Spengler ordered Rodriquez to remove his steward button. The respondent contends that Medina was not reinstated because he had told Kipnis,to go to hell. This, he admittedly did on March 25 when he went to the plant for -his, pay during the ,period of the second strike. While Medina was standing in line, Kipnis taunt- ingly asked him several times "for a smile." Instead, Medina told him to go to hell. It thus appears, and, we find, that Kipnis pro- voked the incident. In his letter to the Regional Office dated July. 24, 1941, Kipnis wrote: "I felt as'president of the company I did not deserve such treatnment, and if I didn't fire the man for insubordina- tion, it would have a bad effect, on the other employees who heard the remark he made to me." On March 13 Richter used worse lan- guage toward =Gruneisel with impunity, when he refused to obey an order Gruneisel gave him; on March 10 Smith "steamed" at Ginsberg, "What the bloody hell is ,going on here?" without reproach or discip- 612 DECISIONS,OF NATIONAL LABOR RELATIONS BOARD _ liriary action being taken against him. An overall consideration of the case leads us to conclude and find that Medina was refused rein- statement, not because Medina made the remark to Kipnis, ,butbe- cause he was active in Local 65 affairs "and refused to be respondent's tool in its campaign to destroy Local'65 and to promote'Local 411. We also find that, the respondent on April 7, 1941, refused,•to rein- state Lionel Medina to his' former 'or substantially equivalent employ- ment for the reason that he joined and assisted Local 65, thereby dis- couraging membership in Local 65, encouraging membership in Local 411, and interfering with, restraining, and coercing its employees in the exercise-of the rights guaranteed in 'Section 7 of the Act. .,&eph,en Arvay joined Local 65 before the first,strike and was made a steward. , Shortly prior to the strike his foreman, Joe Lombardo, asked him why he joined "that.CIO union," and suggested that Arvay attempt to "organize a'company union." He refused to do so. Arvay participated in both strikes and was not called back to work after the second strike even though his job was admittedly available. At all times since, he has desired reinstatement to his former job. In Sep- tember 1941 the respondent sent him to work in its California plant with the promise that it would also pay his transportation back to New York if he were not, satisfied with the job.- He returned to New York late in November 1941, the respondent having defrayed all of his expenses. The respondent has not recalled him. In defense of 'its position Gruneisel testified that about 2 weeks after April- 7 he was told by Arvay that 'he was working in Jersey; that Gruneisel asked him, "was he going back to work"; and that Arvay said,he would go out of'-town if the respondent had a job for him in one of its other -plants.- 'It was the duty of the respondent to notify Arvay that his job was available for him. This, it-did not do. We find that the respondent on April 7, 1941, failed and refused to reinstate Stephen Arvay to his former or substantially equivalent employment because he` joined and assisted Local 65, thereby, dis= couraging membership in Local 65, encouraging membership in Local 411, and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. Harry Brown was the picket captain for Local 65 in both strikes and had been in the respondent's employ since 1934 as a chopper, machine operator. He was the only regular chopper machine oper- ator in the plant. - Although the respondent sent, for employees whom it wished to reinstate after the second strike, Brown was not recalled. On April 7 and on several subsequent occasions, he asked Gruneisel for his job and was told each time by Gruneisel' that there was no work for him. No valid defense was offered by the respondent' for not reinstating him. We, like the Trial Examiner, ascribe the failure and'refusal of the respondent to reinstate Brown to his union, activities'. NATIONAL CONTAINER CORPORATION 613, • ` "We find that the respondent on April 7, 1941 , failed and ,refused to reinstate Harry Brown to his former or substantially equivalent' employment for the reason that he joined and assisted Local 65, thereby discouraging membership in Local .65, encouraging membership in Local 411, 'and 'interfering with,, restraining , and coercing its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. Joseph Valentine had been employed by the respondent since June, -' 1939. His strong union sympathies have already been discussed in connection with the March `13 stoppage in Section 2, above. He was not offered reinstatement after the second strike , although there was work available for him . He reported for work on April 7 but, was refused employment by Giuneisel . In the fall• of 1941 he again ap- plied for his job and was told by, Gruneisel that there was no work for him because the machine on which he formerly worked had been, ,removed from the plant. The last entry on his employment history card with regard to reason for termination of employment is "3/20/41 Left Strike." We find that he was refused employment because of his union activities. We further find that the respondent on April 7, 1941, failed and refused to reinstate Joseph Valentine to his former or substantially equivalent employment for the reason that he joined and assisted Local 65, thereby discouraging' membership in Local 65, encouraging 'membership in Local 411, and interfering with, restraining, and co- ercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR 'PRACTICES UPON COMMERCE We find that'the activities of the respondent set forth ' in Section III, above,-occurring in connection with the operations of the respond- ent 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 had engaged in, and is engaging in, unfair labor practices'we shall order it to cease and desist there- from and to take certain affirmative action which we find is necessary to effectuate the policies of the Act. We have found that .the respondent discharged Ira Sugarman on January 8, 1941, and thereafter refused to reinstate him to his'former or substantially equivalent employment because he joined and assisted Local 65. We have further found that the respondent violated the Act on March' 10 by assigning Sugarman to the scale house, t position 614 DECISIONS' OF NATIONAL LABOR RELATIONS BOARD 1, not substantially equivalent to' that held,by him prior to his discharge on January 8, 1941. We shall, therefore, order the respondent to offer - him immediate and full reinstatement to his former or substantially equivalent employment without prejudice to his seniority and,other rights and privileges. We shall further order the respondent to make Sugarman whole -for any loss of pay that 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 ' haveearned as wages from January 8, 1941, the date of his discharge, to March 20, 1941, the date on which Sugarman participated in the strike of Local 65, and from April 7, 1941, the date upon which ' the respondent should,have recalled him to work pursuant to the settle- ment agreement, to the date of the respondent's offer of reinstatement, less his net earnings 46 during such periods. We have,found that on March 13 the respondent discharged Joseph Valentine, Paul Cianci, Sam Kinstler, and Barney Landsberg be-, cause of their refusal to remove their steward buttons and their activities on behalf of Local 65. These employees ' were rein-stated ,to their jobs 'on March 14, 1941. We shall order that they be made whole for any loss of pay they have suffered by reason of, their dis- criminatory discharge, by payment -to each of them of a sum of money equal to the amount which each normally would have earned as wages during-the period of the respondent's discrimination against him from March 13 to March 14, 1941, less his net earnings during such period. We have,found that the respondent on- March 14 discriminatorily locked out the employees named in Schedule A attached to this Order. The respondent reinstated them to their' job's approximately 3 hours later. We shall order that the respondent make them, whole for any loss of pay they have suffered by, reason of their having been dis- criminatorily locked out for that period by payment 'to them of a sum of money equal to the amount which each normally would have earned as wages during that period, Bless his net earnings during such period. , - - , ,We have found that the respondent discriminatorily discharged -Melvin Schwartz on January 31 and reinstated him on March 10, 1941; .that on March 14 it again discriminatorily discharged him and since that day has refused to reinstate him to his former or substantially equivalent employment. We shall '-order that the respondent offer to Melvin Schwartz -full and immediate reinstatement to his former 46 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 America, Lumber and Sawmill Workers Union, Local 2590, 8 N L. R B. 440. Monies received for work performed upon Federal , State, county, municipal , or other work-relief projects shall be considered as earnings . See Republic Steel v. N. L. R.B., 311 U. S. 7. NATIONAL CONTAINER CORPORATION: - 615' or substantially equivalent employment and make him whole for any, loss of pay he has suffered by reason of -his discharges, 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 January 31 to March 10, 1941, and during the period from March 14, 1941, the date of his second discharge, to the date of respondent's offer of reinstate- ment, less.his net•earnings during such periods. We have found that the respondent on March 10 discriminated with regard to the hire and tenure-of employment of Harry Davis by assign- ing him to an inferior job, and that it discriminatorily discharged him on March 14. We shall order that the respondent offer Harry Davis full and immediate reinstatement to the job which he held immediately preceding March 10, 1941, or to a substantially equivalent position, and to make him whole for any loss of pay he has suffered by reason of the respondent's discrimination against him, by payment to him of a sum of money equal to the amount which he normally would have earned as wages from March 14, 1941, the date of his discharge, to the respondent's offer of reinstatement, less his net earnings during such period. A We have found that the respondent.on March 10 discriminated with regard to the hire and tenure of employment of Gerald Davis ,by assigning' him to an inferior job, and that it discriminatorily dis- charged him on March 14 and has thereafter refused to reinstate him to'his former or substantially equivalent employment. Davis is now serving with the armed forces of the United States and is accordingly -not available for immediate reinstatement. We shall order that the respondent, upon application by Gerald Davis within 40 days after his discharge from the armed forces of the United States, offer him reinstatement to his former or substantially equivalent position, with- out prejudice to his seniority or other rights and privileges. We shall further order that the respondent make whole Gerald Davis for any loss of pay he has suffered by reason of the respondent's discrimi- nation against him, by immediate payment to him of a sum of money equal to the amount which he normally would have earned as wages during the,period between March 14,- 1941, the date of his discharge, and the date 'of his induction into the armed'forces, less his net earn- ings 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 between-a date 5 days after Gerald Davis' timely application for reinstatement and the date of the respondent's offer of reinstatement, less his net earnings during such period. We have found- that the respondent on March 20 discriminatorily locked out and discharged the employees named in. Schedule B of this Order. Some 3 hours later all of these employees went on. strike. We shall order that the respondent make whole all the employees r. 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1 iiamed in Schedule B hereof, for any loss of pay they have suffered by reason of the respondent's discrimination against them, by payment to them of a sum of mol'ley equal to the amount which each normally would have earned as wages from the startingtime of his employment on March 20, which we have found was 8 a. in., until he'went on strike, less his net earnings during such period. We have found that the respondent, on April 7, 1941, and thereafter, refused to reinstate to their former or substantially equivalent employ- ment Lionel Medina, Harry Brown, Joseph Valentine, and Stephen' Arvay because they joined and assisted Local 65. We shall order that the respondent offer them immediate and full reinstatement to their former or substantially ,equivalent employment and make them whole for any loss of pay they have suffered by reason of the respondent's discrimination against them , by'payment to each of them of a sum of 'money equal to the amount which each normally would have earned as wages from April 7,1941 , the date of the discrimination, to the date of the respondent's,offer of reinstatement, less his net earnings during such period. We have found that'-the respondent unlawfully sponsored, main- tained, assisted, and supported Corrugated and Fibre Workers Union, Local 411, International Brotherhood of Pulp, Sulphite & Paper Mill Workers, affiliated with the American Federation of Labor. In order to. insure to the employees the full and free exercise of the rights guar- anteed in Section 7 of the Act, without interference , restraint, or coer- cion by the respondent, we shall order that the respondent withhold recognition from Local 411 as the representative ' of any of the em- ployees of the respondent at its Long Island City plant for the pur- poses of collective bargaining , until such time as Local 411 may be certified as their representative by the Board. No provision of our Order, however, shall be construed as affecting or interfering with the respondent's administration of the terms and obligations of the existing contract with Local 444, first executed on .September 24, 1941, and as thereafter renewed. Upon the basis of the above findings of fact and upon the entire 'record in the case, the Board makes ' the following: ' ' CONCLusIoNs of LAW ' 1. United Wholesale ' & Warehouse Employees of New York, Local- 65, affiliated -with the Congress of Industrial Organizations is a labor organization within the meaning of Section 2 (5) of the Act. 2. International' Brotherhood of. Pulp, Sulphite &: PapeF'Mill Workers U. S. Corrugated Workers Union, Local 444, affiliated -with the American Federation of Labor is a labor organization within the meaning of Section 2 ( 5) of the Act. ' NATIONAL CONTAINER CORPORATION 617 3. Corrugated and Fibre Workers Union, Local 411, International Brotherhood of Pulp, Sulphite & Paper Mill Workers, affiliated with the American Federation of Labor, is a labor organization within the meaning of Section 2 (5) of the Act. - 4. By discriminating in regard to the hire and tenure of employ- ment of Ira Sugarman, Joseph Valentine, Paul Ciahci, Sam Kinstler, Barney Landsberg, Melvin Schwartz, Harry Davis, Gerald'Davis, Lionel Medina, Harry Brown, Stephen Arvay, and the employees named in schedules A and B, hereof,,thereby discouraging membership in United Wholesale & Warehouse Employees of New York, Local 65, affiliated with Congress of Industrial Organizations, and encouraging membership in Corrugated and Fibre Workers Union, Local 411, In- ternational Brotherhood of Pulp, Sulphite & Paper Mill Workers, af- filiated with the -American Federation of Labor, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act., 5. By interfering with, restraining, and coercing its" employees in the exercise of the rights guaranteed in Section 7 of the Act, the re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting. commerce, within the meaning of Section 2 (6) and (7) of the Act. • • 7. The strikes of February, and March 13 and 20, 1941, were caused and prolonged by the respondent's unfair labor practices. 8. The respondent did not discriminate against Joaquin Candenado on March 13, 1941, W. Koprowski, R. Willey, and Nick Varriale on March 14, 1941, and Benjamin Migdalski, Stella Stevens, and Herman Rivera on March 20, 1941. ORDER, Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respond- ent, National Container Corporation, Long Island City, New York, and its officers, agents, successors, and assigns, shall : 1. Cease and desist' from : (a), Discouraging membership in United Wholesale & Warehouse Employees of New York, Local 65, affiliated with the Congress of In-= dustrial Organ'izations' or any other ' labor organization of its- em-ployees; or encouraging membership in Corrugated • and FibreWork= ers Union, Local 411, International Brotherhood of Pulp, Sulphite & Paper Mill Workers, affiliated with the American Federation of Labor, or any other labor organization of its employees, by demoting, dis- 618 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD charging or refusing,to reinstate any of its employees, or by discrimi- nating in any ' other manner in regard to their, hire and tenure of employment, or any term, or condition of their 'employment; ' ' ,(b) Recognizing Corrugated and Fibre'Workers'Union, Local 411, International Brotherhood of Pulp, Sulphite & Paper Mill Workers, affiliated with the American Federation of Labor, as the representa- tive of any of its employees at its Long Island City plant- for the purposes of collective bargaining, with respect to grievances, labor disputes, wages, rates of pay, hours of employment or other ,conditions` of employment, unless and until that organization shall have been certified by the-Board as such representative; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form 'labor organizations, to join or assist United Wholesale`& Warehouse Employees of New York, Local 65, affiliated with the Congress' of Industrial Organizations, or" any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purposes of collective bargaining or other mutual aid or protection, as guaranteed in Section 7• of the Act. , I t 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Withhold recognition from Corrugated and Fibre Workers Union, Local 411, International Brotherhood of Pulp, Sulphite & Paper Mill Workers, affiliated with the American Federation of Labor, as the representative of any of its employees at its Long Island City plant, for the purposes of collective bargaining with respect to griev- ',ances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until that organization shall have been certified by the Board as such representative; (b) Offer Ira Sugarman, Harry Davis, Melvin Schwartz, Lionel Medina, Harry Brown, Joseph Valentine, and Stephen Arvay, im- mediate and full reinstatement to their former or substantially equiva-, lent positions without prejudice to their seniority or other rights and privileges ; (c) Make whole Ira Sugarman for any loss of pay he has suffered' by reason of the respondent's discrimination 'against him, by payment' to him of, -a sum of money equal to the amount which he normally would have earned as wages from January 8, 1941,"the date of his dis- charge, to March 20, 1941, the date on which Sugarman participated in-the-strike of- Local 65, and from April 7, 1941, the, date -upon which the respondent should have recalled him to work pursuant to a settle- ment agreement, to the date of the respondent's offer of reinstatement, less his net' earnings during such periods; , . NATIONAL CONTAINER CORPORATION ^ 619 (d)_ Make whole Harry Davis, Melvin Schwartz, Lionel Medina, Harry Brown, Joseph Valentine, and Stephen Arvay for any loss of pay they have'suffered•by reason of the respondent's discrimination against them, by payment to each of them of a sum of money equal ,to the amount which each normally would have earned as wages from the date of the respondent's discrimination against him to the'date of the offer of reinstatement, less his net earnings during such period; (e)^ Upon application by Gerald Davis, within 40 days after his discharge from the armed forces of the United States, offer him im- mediate and full reinstatement to his former or `substantially equiva- lent position, without prejudice to his seniority or other rights and privileges; 'i (f) "Make whole Gerald Davis for any loss of pay he has suffered by reason of the respondent's discrimination against him, by imme- diate payment to him of a sum of money equal to the amount which he normally ,would have earned as wages during the period between the date of,his discharge and the date of his induction into the armed forces of the United-States, less his net earnings during such period; and a sum of money equal to the amount which he normally would have earned as wages between a date 5 days after Davis' timely application for reinstatement and the date of the respondent's offer of reinstate- ment, less his net earnings during such period; (g) Make whole Joseph Valentine, Paul Cianci, Sam Kinstler, and Barney Landsberg for any loss of pay they -have suffered by reason of the respondent's discrimination against them, by payment to each of them of a sum of money equal to the amount which each normally would have earned as wages during the period of the respondent's discrimination against him from March 13 to 14, 1941, less his net earnings during such period; (h) Make whole the employees named in Schedule A, attached to this Order, for any loss of pay they have suffered on March 14,'1941, by reason of the respondent's discrimination against them on that date, by payment to each of them of a sum of money equal. to the amount, which each normally would have earned as wages on March 14, less his net earnings during such period;' (i) Make whole, ,the employees named in Schedule B, attached to this Order, for any loss of pay they have suffered on' March 20, 1941, by reason of the' respondent's discrimination against them on that date, by payment to each of them of a sum of money equal to the amount which'each -normally would have earned as wages from the period of the discrimination against him on March 20 to the time, when he joined the strike of Local 65 on March 20, less his net earnings during such period; - , (j) Post immediately in conspicuous places in its Long Island City plant and maintain for a period 'of at least sixty (60) consecutive days 620 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD from the date of 'posting; notices to 'its employees stating : (1) that' the respondent will-, not engage, in the conduct from which -it is or- dered to cease and desist in paragraphs 1 (a), (b), and (c) of this Order; (2) that the respondent will take the affirmative action set out (g), (h)., and (i) of this in paragraphs 2 (a), (b), (c), (d); (e), (f), Order; and (3) that' the respondent's employees are free to become- and remain members of United Wholesale & W6relhbuse, Employees of, New York, Local 65, affiliated with the Congress of Industrial Or- ganizations, or any other labor organization, and that the respondent will not discriminate against any employee because of his member- ship or activity in such organization; (k) Notify th'e 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. AND IT is FIIRTHEB ORDERED that the complaint, insofar as it alleges that the respondent discriminated against Joaquin Candenado on March 13,1941, W. Koprowski, R. Willey, and Nick Varriale on March 14, 1941, and Benjamin Migdalski, Stella Stevens, and Herman Rivera on March 20, 1941, be,-and it hereby is, dismissed. AND IT Is FURTHER ORDERED that the complaint, insofar as it alleges that the respondent violated Section 8 (5) of the Act.and Section 8 (1) of the Act with respect to assistance and support granted by the respondent to International Brotherhood, of Pulp, Sulphite & Paper Mill Workers, U. S. Corrugated Workers Union, Local 444, affiliated with the American Federation of Labor, be, and it hereby is, di,, Harry Niemi Henry Rodriquez Harry Brown Margaret' Mattis Ann Freedman Stephenia Kostysin Aida Cuti Stella Stevens Benjamin Migdalski Al Cicolese Frank Sevilla Joseph Kershis Julius Friedlander Thomas Vitello Edward Ingram Jerry Romanelli SCHEDULE A Ignatz Migdalski Teddy Migdalski Barney Landsberg Michael 'Richter Ralph Feliciano Sam Kinstler Joseph M. Valentine Frank Yandoli Herman G. Rivera. .Joaquin Candanado Charles Martin Estelle Nartowicz Chester Kierzak Louis Martinez Paul Zayatz Stephen, Arvay Paul Cianci Benny Bitel Isaac Cardona Jack Canton S. Candarelli Jacob Nann NATIONAL CONTAINER CORPORATION David Biskin Walter Miller Frank Rodriquez J. Ingram Rose Risi Ann Tannacore SCHEDULE B Barney Landsberg Benny Bitel Jerry Romanelli ,• Chester Kieszah David Roth' ,Tom Vitello John Shavel Paul Cianci Sam Kinstler Joseph Kershis ,Mathew Mieszkowski Ben Knopka Bernard Herr John Ostrowski Fred' Korzinski Casimir Strzelecki Raymond McCarthy Henry Koszakiewicz e L