Kelco Corp.

In the Matter of KELCO CORPORATION' and UNITED ELECTRICAL, RADIO AND MACHINE WORKERS OF AMERICA, CIO - Case No. 5-C-2218.-Decided September 21, 1948 DECISION AND ORDER On March 21, 1947, Trial Examiner Thomas S. Wilson issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of his Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. On July 2, 1947, the Board directed that a supplemental hearing be held before Harold B. Teegarden, a Trial Examiner of the Securi- ties and Exchange Commission,' to determine the issues of fact raised by the Respondent's 11th exception, which charged Trial Examiner Wilson with "prejudgment of the issues of the case * * * as dis- closed by the Trial Examiner's statement to counsel for the defendant,' on the street during the noon recess on the second -day of the hear- ing: "You haven't a chance to win this case, and I am going to see that you don't." On July 16, 1947, after hearing argument by the parties, the Board ordered that the record made at the supplemental hearing and Trial Examiner Teegarden's report be made part of the record in this case and be considered in determining the merits. i Pursuant to notice, a hearing was held in Washington; D. C., from July 16 to 26, 1947, inclusive, before Trial Examiner Teegarden. The Respondent and Trial Examiner Wilson were represented by counsel; the Union did not appear. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the close of the hearing, Trial Examiner Teegarden advised the parties that they I Trial Examiner Teegarden's services were secured in accordance with Section 11 of the Administrative Procedure Act, 60, Stat. 237. 79 N. L. R B , No. 105. 759 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD might file briefs and proposed findings of fact and conclusions of law. Thereafter, briefs were filed by the Respondent and Trial Examiner Wilson. On August 26, 1947, Trial Examiner Teegarden issued his Inter- mediate Report, a copy of which is attached hereto, finding that Trial Examiner Wilson had not made the alleged statement, and that in any event it would not, even 'if it had been made, prove that he had prejudged the case. Thereafter, the Respondent and Trial Examiner Wilson filed exceptions to Trial Examiner Teegarden's Intermediate Report; Trial Examiner Wilson also filed a brief. On May 11, 1948, the Board 2 at Washington, D. C., heard oral argument, in which, the Respondent and counsel for Trial Examiner Wilson participated; the Union did not appear. During the oral argument, the Respondent renewed its motion to dismiss, first made on August 22, 1947, upon the ground that the Union had not complied with the provisions of Section- 9 (f) and (h) of the Act. For the reasons stated in Matter of Marshall and Bruce Company ,3 the motion is hereby denied. The Board has reviewed the rulings of the Trial Examiners at both hearings, and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered Trial Ex- aminer Wilson's Intermediate Report, Trial Examiner Teegarden's Intermediate Report, the exceptions and briefs, and the entire record' in the case, and hereby adopts- the findings, conclusions, and recom- mendations of both Trial Examiners insofar as they are consistent with this Decision and Order.4 1. The Respondent contends that Trial Examiner Wilson prejudged this case, as disclosed by the alleged statement set forth above. After full hearing and careful analysis and consideration of the conflicting testimony. of the witnesses with respect to Wilson's alleged statement, however, Teegarden found that it had not been made. As the record reveals no reason for disturbing the credibility findings' of Trial Examiner Teegarden, who heard and observed the witnesses, we '-Pursuant to the provisions of- Section 3- (b) of-the Act, the Board has delegated its powers in connection with this case to a three-nian panel consisting of the undersigned Board Members [Chairman . Herzog and Members Houston and Reynolds] 3 75 N. L. R B. 90. 4Those provisions of Section 8 (1), (3), and (5) of the National Labor Relations Act, which Trial ' Examiner Wilson found were violated , are continued in Section 8' (a) (1)., (3), and (5 ) of the Act as amended by the Labor Management Relations Act, 1947 We make the following modifications in Trial' Examiner Wilson 's-Intermediate Report • ( 1) The Respond- ent was incorporated in 1945 . ( 2) No representative of the Respondent was taking notes on a typewriter during the first meeting of the Labor - Management Committee . ( 3) The Respondent ordered overtime for October 19, 1946. (4) The -Respondent had full knowledge- by 8 : 30 a in on October 16 , 1946 , that its employees were on strike KELCO CORPORATION 761 hereby adopt his finding. Accordingly, we find no merit in the Re-' spondent's contention. 2. Trial Examiner Wilson found that the Respondent dominated and interfered with the formation and administration 'of the Labor Management Committee and contributed financial and other support thereto.6 The Respondent argues that the Committee was not a labor organization, but was established and maintained to discuss produc- tion techniques. However, the record discloses, as Trial Examiner Wilson found, that the Labor Management Committee was formed in response to organizational activity by another union, and for the purpose at least in part of dealing with the Respondent concern- ing wages, grievances, and conditions of employment. Moreover, these were the principal topics actually discussed at the Committee's meetings. We accordingly adopt Trial Examiner Wilson's findings, and we shall order the Respondent to cease and desist from dominating or interfering with the administration of the Labor Management Com- mittee or the formation or administration of any other labor organiza- tion of its employees, and from contributing financial or other support thereto. However, we find that the affirmative disestablishment of the Labor Management Committee, in accordance with the policy an- nounced in Matter of Carpenter Steed Company; is unnecessary because the record discloses that the committee is already defunct. 3. Trial Examiner Wilson found that Milton A. Popiolek, an 'active organizer for the Union, was discharged on the morning of October 15, 1946, in violation of Section 8 (1) and (3) of the Act. We agree. Popiolek had been acting, along with-fellow employees Harold «T. Ruth and Robert T. Zellers,' as the employee representative on the company-dominated Labor Management Committee, and by his refusal to play a subservient role in that labor organization had made himself, as we find, a marked man. After the final meeting of the committee on October 7, 1946, these three men reported to their fellow employees that no concrete -results had` been produced and that Kelly, the Re- spondent's president, had said that the men could "pick up their tools and leave" if they were not satisfied with the working conditions in the plant. Th'ei•eafter, the employees decided to iiivestigate the ad'- The Respondent also contended that Trial Examiner Teegarden committed error in finding that the alleged statement , even if made, would not show prejudgment . We find it unnecessary to rule on this contention . We make the following modifications in Trial Examiner Teegaiden's Intermediate Report * (1) Rich testified that Kelly was walking beside him as they left the Appraisers Stores Building for the noon recess on the second day of the hearing, (2) Rich further testified that shortly thereafter lie left Wilson on the southeast corner of Gav and Lombard Streets Although the complaint did not allege interference with or domination and support of the Labor Management Committee , the issue was fully litigated at the hearing. 7 76 N. L R. B. 670 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD visability of joining an undominated labor organization , and Popiolek was authorized to, and did , discuss the matter with a representative of the Union here involved. On Thursday, October 10 , and Friday, October 11, 1946, Popiolek and Ruth distributed union authorization cards to the employees in the shop, and then spread the word that a meeting would be held on October 15, in the evening. Although they did so surreptitiously and tried to keep their union activity secret from the Respondent , General Foreman Alt nevertheless learned of the scheduled meeting during the afternoon of Monday , October 14 . Shortly thereafter , he asked two employees about the meeting. At the hearing he testified that he thought the meeting was in connection with the Labor Management Committee and that he wished to make arrangements to keep the plant open in that event. We do not credit this testimony , in view of Alt's subsequent admission -during the hearing that less than a week earlier he had denied Popiolek's request that the plant be kept open at night -for an employee meeting in connection with the Labor Management Committee. We find, as did Trial Examiner Wilson, that the Re- spondent knew by the afternoon of October 14 that there was renewed union activity in, the plant and that Popiolek was one of the leaders of this activity. When Popiolek reported for work on October 15, Alt summarily dis- charged him, giving him no explanation whatsoever for this abrupt action. As Popiolek was preparing to leave the plant, he told Alt that the Union represented a majority of the men in the plant and that by ,discharging him the Respondent was "fooling around with the Na- tional Labor Board." Popiolek then asked , "Do you still want me to --go?" Alt, without denying Popiolek 's accusation, merely replied in the affirmative. The Respondent asserts that Popiolek was discharged because of his failure to obey orders to make certain jigs and patterns in connec- tion with the Crown Cork and Seal job on which he was working. The evidence shows that Alt suggested on October 11, 1946, that Popiolek have `his assistant make the jigs and patterns in question and at the same time assigned Popiolek two rush jobs which prevented him from -working on the jigs and patterns himself. Yet the Respondent con- cedes that it did not question Popiolek or his assistant , before the discharge, to find out whether Popiolek had passed along Alt's instruc- tions; and Popiolek was still working on the uncompleted rush orders at the time of his summary discharge. Like Trial Examiner Wilson, ,we do not credit the Respondent 's explanation of the discharge. We conclude that it was Popiolek's ,union membership and activity which prompted the Respondent to discharge him. , KELCO CORPORATI01\1 763 4. Trial Examiner Wilson found that the Respond'ent 's 1'^ t minute order on October 15, 1946, requiring the entire shop to work overtime that evening, was intended to prevent the employees from attending the Union's scheduled meeting. The Respondent contends that two rush orders necessitated this overtime work. However, such an over- time order was without precedent for many months past. Moreover, no delivery date had ever been specified for one of these rush orders. And although delivery of the other order was required by October 18, 1946, it could have been completed in time ( a) without-any overtime work at all, merely by assigning one extra employee to- the job during regular working hours, or (b) by ordering overtime for a few of the employees only, as had been done on previous occasions ,' or (c) by not ordering overtime until one of the following nights." - Finally, the drastic penalty of discharge for inability or failure to comply with this last-minute overtime order, and the Respondent's subsequent delay in working on these jobs (neither of which had been completed at the time of the hearing some 3 months later ), convinced us that the Respondent was not motivated by any business necessity in ordering the entire shop to work overtime on pain of discharge. Under all the circumstances , and also in view of Popiolek's discriminatory discharge {',earlier that day, we conclude , as did Trial Examiner Wilson, that the overtime order was motivated , not by business requirements, but by the Respondent's desire to prevent its employees from attending the scheduled union meeting." Even if the Respondent did not know that the scheduled meeting was to be a union meeting, it admittedly knew that the meeting was to be a scheduled meeting of its employees-a concerted activity within the meaning of Section 7 of the Act. In >'either case , it was an unfair labor practice for the Respondent to interfere with this activity by restraining or coercing` its employees. We find that the Respondent thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in "Section 7 of the Act , within the meaning of Section 8 ( 1) of the Act. 5. We agree with Trial Examiner Wilson's findings that the 21 ,employees hereinafter named were , like Popiolek, discharged'in vio- 8 During the overtime period actually worked, not one additional employee, of the ap- proximately 20 who were then working, was transferred to either of the so-called rush jobs ; and only the 4 regularly assigned employees continued to work on these jobs during ;"subsequent working hours' I In finding that the Respondent knew the scheduled meeting was a union meeting, we place no reliance upon the testimony of Emmanuel Smuckler that President Kelly called him into the office during the morning of October 15, 1946, and asked him if he intended to go to the union meeting that night. Instead, we'base our finding upon the fact that the Respond- ,itent's plant is small ; that General Foreman Alt, Plant Manager Kaehler, and President Kelly constitute the Respondent's entire management personnel ; and that there are constant b:conferences'among these three men, during which, it is fair to infer in view of the other circumstances of the case, Alt advised the others of the proposed meeting. See N. L. R.,B. v.;dbbott Worsted Mills, 127 F. (2d) 438, 440 (C. C A. 1). - 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lation of Section 8 (1) and (3) of the Act. The Respondent dis- charged 10 of the employees 1° for refusing to obey the overtime order. In view of our finding that the issuance of the overtime order violated Section 8 (1) of the Act, it follows that the discharge of these em- ployees for their failure to obey this illegal order violated Section 8 (1) and (3) of the Act11 The Respondent discharged the other 11 employees 12 for striking and picketing peacefully in protest against the Respondent's unfair labor practices. The Respondent contends that it was not aware of the strike until sometime after the discharges, and that these 11 employees were discharged because they had failed to report for work and not because they engaged in a strike. We have examined these contentions, and find no merit in them. It is clear that the employees in question engaged in concerted action by striking and picketing, and that the Respondent promptly learned of their ac- tivity by observation and through the ensuing efforts of an organizer of the Union, Myers, to settle the strike. Whether this action is called a strike, a walk-out, or merely a form of concerted activity, it was protected under the Act. Accordingly, we find that the dis- charges, admittedly occasioned by this activity, constitute a violation of Section 8 (1) and (3) of the Act. 6. Trial Examiner Wilson found that the Respondent refused to bargain collectively with the Union on October 16, 1946, and at all times thereafter. We agree. The Respondent urges that it was under no obligation to bargain with the Union, on two grounds: (a) the Union had lost its majority by reason of the discharges; and (b) the duty to bargain was suspended by the charges filed with the Board on October 19, 1946, before the Respondent received the Union's first letter formally. demanding recognition. We find no merit in either argument. A union's majority cannot be dissipated by discharges which are violative of the Act 13 Furthermore, the institution of a complaint proceeding before the Board does not suspend the operation of the Act or relieve an employer of his duty to bargain thereunder 14 7. Trial Examiner Wilson found that the Respondent violated Sec- tion 8 (1) independently of the foregoing unlawful conduct. We agree, but do not rely on the Respondent's statements opposing or dis- paraging unionization. 10 James Stephen Bowen, Pat Compello , Raymond A. Fronckowski, Marion A. Kolb , William B MacMillan , W. M. Stratton, Charles J . Sturgill , Harold W. Ruth, William C. Marvell, and Robert T Zellers. 11 See Matter of Carl L Norden, Inc, 62 N. L R B 828, and cases cited therein 12 Raymond Frankell , George E. Fick , Walter Hasenei, Harry F. Hecker, Edwin J Mooney, Nelson W. Neal, William H. Rixham, James E. Rutledge , Richard Sebeck , Marvin Baseman, and Joseph E. Ziemlak. 13 See Matter of Ttahomingo County Electric Power Association , 74 N. L. R. B. 864, and cases cited therein. 14 Matter of Na-Mac Products Corporation, 70 N. L. R- B.,298„and -cases cited therein. KELCO CORPORATION THE REMEDY 765 Trial Examiner Wilson recommended, in part, that the Respondent be ordered to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit. Since the issuance of the Intermediate Report, however, the Act has been amended to deny utilization of the Board's processes directly to aid the bargaining position of a labor organization which, like the Union here- in, has not complied with the provisions of Section 9 (f), (g), and (h) of the Act. Our order in this respect will, therefore, be conditioned upon compliance by the Union with the above-cited provisions of the Act within thirty (30) days 15 ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Kelco Corpora- tion, Baltimore, Maryland, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in United Electrical, Radio and Ma- chine Workers of America, CIO, or in any other labor organization of its employees, by discharging or refusing to reinstate any of its employees, or by discriminating in any other manner in regard to their hire or tenure of employment, or any term or condition of their em- ployment; (b) Dominating or interfering with the administration of, or con- tributing financial or other support to, the Labor Management Com- mittee and dominating or interfering with the formation or adminis- tration of, or contributing financial or other support to, any successor thereto or any other labor organization of its employees; (c) Refusing to bargain collectively with United Electrical, Radio and Machine Workers of America, CIO, if and when said labor or- ganization shall have complied, within thirty (30) days from the date of this Order, with Section 9 (f), , (0, and (h) of the Act, as the exclusive representative of all the Respondent's production and main- tenance employees who work in or out of its Baltimore plant, exclud- ing all engineers, draftsmen, salesmen, clerical employees, and super- visors as defined in the Act, with respect to grievances, labor disputes, rates of pay, wages, hours of employment, and other conditions of em- ployment; Is Matter of Mar shall and Bruce Company, footnote 3, supra. 766, DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) 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 Electrical, Radio and, Machine Workers of America, CIO, or any other labor organization, to -bargain collectively through 'representatives of their own choosing,' and to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or, protection, as guaranteed in Section 7 of the Act. 12. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: 18 -(a) Offer Marvin Baseman, James Stephen Bowen, Pat Compello,' Raymond Frankell, George E. Fick, Raymond A. Fronckowski, Wal- - ter Hasenei, Harry F. Hecker, Marion A. Kolb, William B. Mac- Millan, William C. Marvell, Edwin J. Mooney, Nelson W. Neal, Wil- liam H. Rixham, Harold W. Ruth, James E. Rutledge, Richard Sebeck, W. M., Stratton, Charles J. Sturgill, Robert T. Zellers, Joseph E. Ziem- lak, and Milton A. Popiolek'17* immediate and full reinstatement to ' their former or substantially equivalent positions,18 without prejudice' to their seniority or other rights and privileges; (b) Make whole the persons named above in Section 2 (a) of this Order for any- loss of pay they may have suffered by reason. of• the Respondent's discrimination against'them, by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages during the period 'from the date of his discharge to the date of the Respondent's offer of reinstatement, less his net earn- ings during said period; (c), 'Upon request, and upon presentation by Emmanuel Smuckler of an affidavit from a duly licensed physician that he is able to perform such work, reinstate Emmanuel Smuckler to his former or a ,substan- tially equivalent position,. without prejudice to his seniority or other' rights, and privileges; and, if the Respondent fails to reinstate him ?e The Board expressly reserves the' right to modify the reinstatement and back-pay provi- sions of this Order because of circumstances not now apparent '37 The Respondent offered to prove that five of these employees (Fronekowski, Kolb, Mac- Millan, Popiolek, and Ruth ) were duly found by a State court to have engaged in threats of bodily harm or acts of violence toward other employees during the course of the strike. 'In the opinion of Chairman Herzog and Member Houston, even if the Board were to accept Respondent's offer of 'proof, the conduct of these five employees would not have been so, serious as to show that they had rendered themselves unfit for the further employment by the-Respondent See Republic Steel Corporation v. N. L. R. B., 107 F. (2d) 472 (C. C. A. 3), aff'd311U S 7 . 'Member Reynolds, however, would accept the findings of the State court as conclusive evidence of misconduct sufficiently serious to deny reinstatement and back pay to the five employees See N. L. R. B. v. Mt. Clemens Pottery Company, 147 F. ( 2d) 262. { "Former or substantially equivalent position " is intended to mean fornier._positlon wherever possible , but if such position is no longer in existence then to a substantially equivalent position . See Matter of The Chase National Bank of the City of New York,. an Juan, Puerto Rico Branch, 65 N. L . R. B. 827. KELCO CORPORATION" 767 within 5 days thereafter, make him whole for any loss of earnings which he may incur by reason of the Respondent's failure to reinstate him; (d) Upon request, and upon compliance by the Union with the filing requirements of the Act in the manner set forth. above, bargain col- lectively with United Electrical, Radio and Machine Workers of Amer- ica, CIO, as the exclusive representative of the employees in the unit above described with respect to grievances, labor disputes, wages, rates of pay, hours of employment, and other conditions of employment, and, if an understanding is reached, embody such understanding in a signed contract; ' (e) Post throughout its plant in Baltimore, Maryland, copies of the notice attached hereto, marked "Appendix A." 19 Copies of said notice, to be furnished by the Regional Director for the Fifth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof and main- tained by it for sixty (60) days consecutively thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material; (f) Notify the Regional Director for the Fifth Region in writing, within ten (10) days from the date of this Order and again-within ten (10) days from the future date, if any, on which the Respondent is officially notified that the Union has met the condition hereinabove set forth, what steps the Respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the allegation of the complaint that the Respondent discriminatorily discharged Emmanuel Smuck- ler be, and it hereby is, dismissed. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision, and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : - WE WILL BARGAIN collectively upon request with United Elec- trical; Radio and Machine Workers of America, CIO, as the exclusive representative of all the employees in the bargaining unit described herein with respect to grievances, labor disputes, is In the event that this Order is enforced by decree of a Circuit Court of Appeals, there shall be Inserted before the words, "A DECISION -AND ORDER" the words, "A DECREE OF THE UNITED STATES CIRCUIT COURT OF APPEALS ENFORCING." 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wages, rates of pay, hours of employment, and other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement; provided said labor organi- zation complies, within thirty (30) days from the date of the aforesaid Order of the Board, with Section 9 (f), (g), and (h) of the National Labor Relations Act, as amended. The bargain- ing unit is : All production and maintenance employees who work in or out of our Baltimore plant, but excluding all engineers, drafts- men,''salesmen clerical employees, and supervisors as defined in the Act. WE WILL OTTER to the employees named below immediate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination : Marvin Baseman James Stephen Bowen Pat Compello Raymond Frankell George E. Fick Raymond A. Fronckowski Walter F. Hasenei Harry F. Hecker' Marion A. Kolb William B. MacMillan William C. Marvell Edwin J. Mooney Nelson W. Neal William'H. Rixham Milton A. Popiolek Harold W. Ruth James E. Rutledge Richard Sebeck W. M. Stratton Charles J. Sturgill Robert T. Zellers Joseph E. Ziemlak WE WILL ALSO reinstate Emmanuel Smuckler upon request in the manner set forth in the Order. WE WILL NOT dominate or interfere with the formation or ad- ministration of any labor organization, or contribute financial or other support to it. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist United Electrical, Radio and Machine Workers of America, CIO, 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. All our employees are free to become or remain members of this Union, or any other labor organization. We will not discrim-. KELCO CORPORATION 769 inate in regard to hire or tenure of employment or any term or condition of employment against any employee because of mem- bership in or activity on behalf of any such labor organization.. KELCO CORPORATION, Employer. By ------------------------- (Representative ) ( Title) Dated -------------------- This notice must remain posted for sixty (60) days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT Messrs. Earl K. Shawe and Sidney J. Barban, for the Board. Messrs. John Henry Lewin and Edward L. Rich, Jr., of Baltimore, Md., for the respondent. -Messrs. Jack Myers and Jack Zucker, of Baltimore, Md., for the Union. STATEMENT OF THE CASE Upon an amended charge duly filed on November 26, 1946, by United Electrical, Radio and Machine Workers of America, CIO, herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Direc- tor for the Fifth Region (Baltilnoie, Maryland), issued its complaint dated December 16, 1946, against Kelco 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 amended charge, the complaint and notice of hearing were duly served upon the respondent and the Union on December 16, • 1946. With respect to the unfair labor practices, the complaint alleged in substance that: (1) on or about October 18, 1946, and at all times thereafter, the respondent refused and continues to refuse to bargain collectively with the Union, although the Union was, and at all times thereafter has been, the designated representative of all the respondent's employees in an appropriate unit comprised of all pro- duction and maintenance employees, employed by the respondent at its Balti- more plant but excluding all engineers, draftsmen, salesmen, all clerical em- ployees and all supervisory employees;' (2) that on October 15, 1946, and on October 24, 1946, the respondent discharged Milton A. Popiolek and Emmanuel Smuckler, respectively, and since those dates has refused to reinstate said em- ployees; (3) on October 15, 1946, and on October 16, 1946, the respondent dis- charged 21 of its employees who went on strike in protest against the unfair labor practices of the respondent and has at all times thereafter refused to 'Over respondent's objection the Board was allowed to amend its allegation as to the appropriate unit by adding the H ords "all engineers, draftsmen , salesmen" after the word "excluding " The amendment merely clarified the previous allegation and was deemed denied by the respondent. 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reinstate them, or any of them, because they joined or assisted the Union or engaged in concerted activities with the other employees for the purposes of collective bargaining or other mutual aid or protection, and (4) the respondent since on or about July 1, 1946 and continuously down to and including the date of the complaint, has interfered with, restrained, and coerced its employees in. the exercise of their rights guaranteed in Section 7 of the Act by certain enumerated acts On January 2, 1947, respondent filed a "Motion and Request for Extension of Time to File the Answer to the Complaint and for Postponement of the Hearing Thereon" and a "Motion and Demand (sic) for Bill of Particulars of Complaint." 'Thereafter, the hearing on the complaint was postponed from January 7 to 'January 8, 1947. On January 3, 1947, the undersigned granted certain portions of the request for a bill of particulars and denied the remainder. Thereafter the respondent filed its answer in which it admitted certain allega- tions of the complaint, but denied both the jurisdiction of the Board in interstate commerce and also that it had engaged in any unfair labor practices. -Pursuant to notice, a hearing was held in Baltimore, Maryland, from January 8 to January 24, 1947, inclusive, before the undersigned, the Trial Examiner duly designated by the Chief Trial Examiner. The Board and the respondent were represented by counsel, and the Union by its officials Full opportunity to be heard, to examine and cross-examine witnesses and to introduce evidence bearing on the issues was afforded all parties. At the close of the Board's case, the .'respondent moved that the complaint and each allegation therein be dismissed on the ground that the evidence adduced by the Board failed to sustain the -allegations of the complaint. The undersigned denied the motions. At the .conclusion of the hearing the respondent renewed these motions to dismiss. The ,undersigned reserved ruling thereon. They are hereby denied. At the close of the hearing, the undersigned advised the parties that they might argue orally and file briefs and/or proposed findings of fact and conclusions of law or both with the Trial Examiner. All parties waived oral argument. Thereafter, a brief has been received from the Board and proposed findings of fact have been sub- mitted by the respondent? Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Kelco Corporation, incorporated under the laws of the State of Maryland in October 1941, operates a metal working plant in Baltimore, Maryland, where it fabricates metal products for industrial use. During the fiscal year ending Octo- her 1, 1946, the respondent purchased raw materials consisting of steel, copper, bar stock and angle irons of a value in excess _of $170,000. Of this amount, approximately 29 percent is.purchased and shipped directly to the respondent's plant from, sources outside the ,State. in addition, at least 25 percent of the raw materials purchased by the respondent from sellers within the State of Maryland $ The undersigned accepts the folloning paragraphs of respondent's proposed findings of fact : 1, 2, 3, 4, 7, 22, 23, 43, 47, 48, 72, 73; and rejects the following : 5, 6, 8, 9"10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 44, 45, 46, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87. KELCO CORPORATION 771 = originates outside' the State and-is shipped to the respondent,"from outside the State. During the same fiscal year, respondent's gross sales amounted to $254,000, of which 3 percent was shipped directly to customers outside' the State of Mary- land. In addition, at least 10 percent of the respondent 's products, by conserva- tive estimate, was sold to customers in the State of Maryland , who reshipped them to places outside the State of Maryland . The remaining products sold by the respondent to other companies within the State of Maryland are designed for industrial use and are used by these companies in connection with their man- ufacturing operations. A substantial number of these sales are to companies which are themselves engaged in interstate commerce. Counsel for the respondent stated during the hearing that there was no dispute concerning the Board's jurisdiction. The undersigned finds that the respondent is engaged in commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED United Electrical, Radio and Machine Workers of America , CIO, is a labor organization admitting to membership 'employees of the respondent. .III. THE UNFAIR LABOR PRACTICES A. The chronology of events In May 1946 all of the respondent's operations were housed in three build- ings, one of which was of two stories, and the others of one story. On the second floor and a part of the first floor of building number one were located 'the execu- tive offices and the engineering department , consisting of from two to four drafts- . men. All of the rest of the first floor space was utilized for production work on which the•respondent employed 30 or more men. Throughout the period of time involved in this proceeding , the respondent's supervisory hierarchy consisted of the following : Michael J. Kelly, president of the respondent since its incorporation in October 1945 and one of the original founders and co-owners of the Kelco Company formed originally in 1932 as a partnership ; James J. Kaehler, secretary of the respondent and plant manager in charge of the shop and engineering department , who had been shop foreman until 1940; and George W. Alt, who became shop foreman in May 1945 , having direct supervision over all production employees. Neither Kelco Company, the partnership , nor this respondent , the corporation, has ever had a labor agreement with a union. At or about this time, the respondent was planning to expand its facilities by leasing from Michael J. Kelly personally, a building across the street from the respondent's present location . Construction on this new building began on July 1, 1946. On May 17, 1946, respondent caused the following notice to be posted in its plant : TO ALL EMPLOYEES Plans are now being made to erect a new modern daylight Plant on the southwest corner of Baltimore and Haven Streets. The management is very desirous of having the Plant ready for occu- pancy about September 1, 1946. - We are also very desirous of obtaining any or all suggestions that you may care to submit for the improvement of working facilities, conditions and better co-ordination. 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Your suggestions will be given very careful consideration by the manage- ment. All suggestions must be in writing and signed by employee. Turn in all suggestions to Mr. Alt, Plant Foreman. Not a single suggestion resulted from this notice. Sometime about May, the respondent granted the employees a straight 12% percent raise "across the board." About July 1946, an AFL,union unsuccessfully attempted to organize the re- spondent's employees. The respondent knew of this attempt 3 In the latter part of August, in conference with Kaehler and Alt, Kelly sug- gested that a labor-management committee 4 of three representatives of the employees and three of management be formed to discuss matters suggested in the May 17 notice. This matter had been under discussion by them as early as June or July." Alt was designated to instigate its formulation. Sometime in August, Alt inquired of employee Harold W. Ruth, during working hours, if he recalled anything which had taken place approximately a month before. Requested to be more specific, Alt mentioned the "talk of trying to get a union in here." Ruth acknowledged that there had been talk about the AFL, but that it seemed "to have been, quashed or just dropped " That ended the matter at that time. In early September, Marvin T Baseman was interviewed by Alt on his appli- cation for employment with the respondent After first talking about the work, Alt inquired "what is your opinion of unions?" Baseman answered that his father and brother belonged to the Carpenters Union, and that he himself had belonged to the CIO while working in the shipyards, b_ut that, if the union had not been there, he might still be employed. Alt then stated that he, too, had had a very bitter experience with a union, that "American workers seemed a little hard headed and liked to learn the hard way," but that he knew that "unions were no good and the sooner the American workers found it out the better." Fol- lowing this interview, Baseman was employed In his testimony Alt acknowl- edged that there was nothing unusual about this type of conversation during one of his employment interviews. A few weeks after the first interview, Alt again approached Ruth and inquired as to his opinion of forming "a labor-management set up in the shop." When Ruth reacted agreeably, Alt suggested having a committee of three employees elected by all the shop employees "to meet with management to discuss griev- ances and working conditions and suggestions for improvements in the shop, and so forth." Then Alt suggested that Ruth probe the sentiments of the other employees and, if they were favorable, "we would go ahead with it." 3 Both Alt and Kaehler knew that the AFL had made this attempt Koehler testified on January 21, 1947, as follows Q You, of course, heard in 1946, that the American Federation of Labor attempted to organize your employees, hadn't you? You heard some talk about that? A. Yes I heard some talk Kaehler then set the time of this as in July. On the following day, Kaehler testified that he could not recall that the A F of L had attempted to organize the plant The undersigned finds that Kaehler had knowledge in accordance with his original testimony 4 Throughout the hearing, respondent referred to this committee as the "labor-management production committee " The respondent apparently never gave it an official title Among the employees, the committee was universally referred to solely as the "labor-management committee " The undersigned will adopt this latter name for the committee s Although Kelly knew of the'laboi-management committee program sponsored by the War Manpower Commission during World War II in an effort to increase production, lie testified that lie was not sufficiently interested to institute such a program at his orvn plant at that time 1 KELCO CORPORATION 773 Ruth promptly canvassed the employees during working hours and found them agreeable to the suggestion . Ruth reported his finding to Alt and inquired when the employees could have a meeting in the shop to elect their committee of three: A few days later, Alt told Ruth that the plant would be kept open on Sat- urday afternoon after work so that the employees could hold their meeting in the shop. This meeting was held as arranged and as a result of a vote taken there, em- ployees Milton A Popiolek, George W. Ruth and Robert T Zellers were elected to represent the employees. At another meeting of all the shop employees held in the plant at Alt's sug- gestion on a subsequent Saturday afternoon after work, the employees decided to bring their grievances to the attention of the management one at a time, and to press first for an increase in wages. The first meeting of this committee with the management representatives con- sisting of Kelly, Kaehler and Alt was held in Kelly's office after work on Septem- ber 16, 1946, a date set by Kelly.' As authorized by the respondent, Alt informed the labor representatives that they would be paid for the time they spent in these joint meetings. The first issue raised at the meeting was when the labor repre- sentatives inquired about the possibilities of a wage increase for the employees. Kelly answered this by going into a half-hour discussion of general economic, situation before agreeing that the respondent would investigate the situation, consult the stockholders and report back.' No specific dollars and cents increase was ever discussed between the gioups. The remainder of the meeting was spent discussing the advisability of appointing an assistant foreman to Alt, improving the conditions of the first-aid station, inaugurating a merit system, giving mechanics greater authority and attempting to relieve the congested condi- tion of the shop. The points under discussion applied to both the old plant and the proposed new one.- About 2 Saturdays later, the employees held another meeting in the shop with Alt's permission at which the committeemen made a report on their first meeting with management. The respondent did not pay the employees for the time they spent in this or any of the meetings at which the management was absent. On or about October 7, 1946, at the request of the labor committeemen, another meeting with management was held in Kelly's office after work. Again the labor representatives were paid for the time spent. Again the first matter discussed was the wage increase. On this occasion, Kelly stated that no decision had been 6 At the beginning of the first meeting with management, Ruth noted that Kaehler was taking notes of the meeting on a typewriter and requested that the respondent furnish the labor representatives with copies thereof , which Kelly agreed to do No notes were ever furnished and, in fact , Kaehler testified that while he made some notes of the meeting, he never actually typed out any minutes and ultimately lost the notes he had made . No notes were produced at the hearing 4 After testifying that the first order of business at the meeting was the question "could we do anything to give them a wage increase " and that he personally consumed a half hour's time in reply discussing "the economic situation generally at length and pretty thoroughly," Kelly testified as follows : Q (By Mr . LEWiN) At either of those meetings did any of the employee members of this labdr-management committee make a demand upon the management for a wage increase? A (By Mr KELLY) There was definitely no demand ; it was merely a request to see if we could do anything - In addition, despite Kelly 's half-hour discussion . Alt. Kaehler, and Kelly all testified that only 3 or 4 minutes of these labor-management meetings were devoted to the requested wage raise 809095-49-vol. 79-50 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reached by the respondent and in answer to a query as to when a decision might be expected, stated that it would take "2 weeks, 2 months or a year." Kelly added that if the men in the shop did not like the way it was going "they can pick up their tools and leave." Again there was discussion of the other topics mentioned in the previous meeting before this one adjourned. The next day, the labor representatives reported to their fellow employees indi- vidually on the discussion had at the meeting with management. As a result of the talk among the employees, it was decided to investigate the possibilities of joining a union and that Popiolek was to make arrangements through an inter- mediary to meet with Curtis R. Dove, then a part-time organizer for the Union and president of Local 146 thereof. As arranged, Popiolek and Ruth met with Dove on Wednesday evening, October 9, and discussed with him the problems of the employees and the possibility of their joining the Union. On that occasion, Dove gave Popiolek and Ruth printed cards reading as follows: UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA Affiliated With the Congress of Industrial Organizations IS PLEDGED TO WIN THE WAR I hereby request and accept membership in the above named union, and authorize it to represent me, and in my behalf to negotiate and conclude all agreements as to hours of labor, wages, and all other conditions of em- ployment. Book No. ------ Applicant's Signature -------------------------------------- Tel.______ (Please write) Address ------------------------------- City & Zone ------------------ Employed by ---------------------------------------- Dept. ---------- Date ----------------------- Occupation ------------------------------ Date must be filled in - Check or Clock No. -________- Badge No. ____ Bldg. Shift __ Fl. Print Name ----------------------------------------------------------- Please Print Steward's Signature ------------------------------ and requested them to have their fellow employees execute the same. On Thursday, October 10, and Friday, October 11, Popiolek and Ruth surrepti- tiously distributed these cards to all but a few of the 32 employees then working in the respondent's shop during working hours and urged them to sign 8 Twenty- one of these employees executed the cards and returned them to Popiolek or Ruth. On the evening of October 10, Kaehler made a tour of inspection in the plant and discovered, according to his own testimony, that the job Popiolek was then engaged on was taking "too long" and thereupon ordered a check of the time spent on the job made by the pay-roll department. Kaehler testified that he "believes" that he mentioned this proposed check to Alt about this time, although it is admitted that Alt had never complained that Popiolek was taking too long on the job Kaehler's recollection of any such conversation with Alt was hazy. On the evening of October 11, Popiolek and Ruth met with Jack Myers, organizer for the Union, to whom they delivered the 21 signed application cards. 8 Two other employees were carried on respondent's pay roll, but were on sick leave at this time One of them has since returned to work while the return of the other is indefinite. KELCO CORPORATION 775 -It was then decided to hold a meeting of all the shop employees in the Union .Mall on October 15 at 8 p. in. On October 12, 14, and 15, Ruth and Popiolek again surreptitiously spread the .news of the proposed October 15 meeting to all the employees in the shop with a very few exceptions. This information caused considerable talk among the -employees. On October 14, as employee Marick was punching his time card he either "casually" told Alt that the employees were going to have a meeting or inquired ,.if Alt had heard that the employees "were going to have a meeting tomorrow ,night." ° Although, according to Alt's testimony, he neither inquired of, nor was J old by, Merick anything further about the meeting, Alt approached employees ,.Hergenhahn and Manacelh 1° individually and ask each of them if he was going to attend "a meeting." Each of these employees, believing Alt was referring to the _,October 15 Union meeting which was the only meeting then scheduled or being discussed, answered that he did not think so. Although Alt testified that he believed the meeting referred to was an employees' meeting connected with the labor-management committee, the undersigned finds for reasons which will ,.be more fully explained hereinafter, that Alt knew about the Union meeting scheduled for October 15, and that it was to this Union meeting that he referred as the employees correctly understood. Promptly after Alt's inquiries, both Hergenhahn and Monacelli reported to their fellow employees that Alt knew about the Union meeting. Hergenhahn reported specifically to Popiolek about the incident. Also during the morning of October 14, B. W. Neser, chief draftsman of the American Can Company in Baltimore, Maryland, telephoned Kelly and asked him to expedite certain long outstanding orders. Neser assured Kelly that the deliveries of these items was a matter that was "very urgent." In his testimony at the hearing, Kelly could not recall this telephone conversation, nor could Kaehler, who controlled the flow of orders through the plant, testify whether or not Kelly even mentioned the request to him. The record does not indicate that the respondent did anything on October 14 to attempt to comply with this request. A few minutes before 8 a. m. on October 15, as Popiolek entered the plant to begin work, Alt stopped him, told him not to change into his working clothes and that he would be paid off. As Alt started to move away, Popiolek said to liim, "George, I guess you know that we have got the majority of the men in the Union and you are fooling around with the National Labor Board. Do you still want me to go?" After pausing slightly Alt replied, "I want you to go." This discharge of the Union's most active adherent -will be discussed more fully hereinafter.' ° Alt testified to both of the above versions. Employee Merick did not sign a union card , ,and has continued working for. the respondent. 30 Neither Hergenhahn nor Monacelli signed a union authorization card nor did either ever cease working for the respondent. 11 Alt testified that Popiolek's remark was "we have 50 percent of the names of the employees at the Labor Board Does that mean anything to you?" and further denied that Popiolek had mentioned either the Union or that the employees were members of the Union. As this conversation was one of the rare instances when Alt did not testify that he could not remember the exact words , the undersigned can put little faith in his testimony and finds in accordance with the testimony of Popiolek as stated above. 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Between 10 and 11 o'clock on the morning of October 15, employee Smuckler was sent to Kelly's office where he was asked by Kelly if he was going to attend "a union meeting." 12 Sometime about 2 o'clock in the afternoon of October 15, Neser telephoned the respondent's plant in order again to urge Kelly to expedite the same orders men- tioned in his conversation with Kelly of the previous day. According to the testimony of Neser, he had received about 9 a. m. that morning a telephone call from his New York office explaining the urgency of securing the items ordered from the respondent as quickly as possible. Neser made no attempt to explain the delay betty een the receipt of this urgent New York call and his afternoon call to Kelly. As Kelly was not in his office that afternoon, Neser left the message with Kelly's secretary. At 2: 18 p. m., Neser dispatched the following telegram to the respondent: CONFIRMING PHONE CONVERSATION YESTERDAY WE REQUIRE IN OUR PLANT BY OCTOBER 18TH TWO MAU1042 ONE MAU1457 ONE MAU1479 ONE MAU1472 COVERED BY ORDER NUMBERS 44A 1571- Early the same afternoon, Lester W. Jones, director of purchases for the Baltimore firm of McCormick & Company, another large customer of the re- spondent, also tried to reach Kelly by telephone in order to have him expedite some of his company's orders originally given to the respondent in February ,and March 1946. Jones was unsuccessful in reaching Kelly and he, too, at 2: 54 p. in. dispatched to the respondent a telegram reading as follows : CONFIRMING PHONE CONVERSATION. MUST HAVE OUR ORDERS 48546 AND 47374 ALSO 49173 AT ONCE VERY IMPORTANT- Both these telegrams were delivered simultaneously at respondeut's office at 3: 40 •p. in. The respondent failed to acknowledge either telegram prior to October 17 when it sent a letter to the American Can Company. Although both Neser and Jones testified that it was "usual practice" or "company policy" to send confirming telegrams of this nature, the respondent admits that these two telegrams both received simultaneously on October 15, 1946, are the only similar confirmation telegrams the respondent has ever received, not only from these customers, but from any customers. After being informed by the telephone operator of these two telephone calls, and speaking to Kelly by telephone, Kaehler at 3: 45 p. m. handed to Alt the following bulletin for posting in the plant:, ALL SHOP EMPLOYEES WILL WORK TONIGHT OCTOBER 15TH, 1946: 4:30 P. M. to 5:15 P. M. (Supper Time) 5:15P M. to 10: 00 P. M. and said "It is an overtime notice." Alt answered : "The fellows are going to have a meeting tonight." Then Kaehler stated, "I don't know about a meeting, but we have got orders to work and I want the whole shop to work." 13 About 12 Kelly denied that he had any conference or conversation with Smuckler on October 15, The reasons the undersigned finds in accordance with Smuckler's testimony will be more fully set forth hereinafter 13 This finding is based on the testimony of Kaehler and Alt, the only persons present. According to them, Alt did not volunteer nor did Kaehler inquire anything further about the KELCO CORPORATION 777 3: 45 p. m. Alt posted the above notice by the time clock. It was a notice without precedent since the incorporation of the respondent and for 3 years and 2 days in the shop." At 4: 30 p. in., as some of the employees were checking out and some were changing clothes, apparently in preparation for going home, Alt stood by the time clock and shouted out for all to hear, "Anyone who leaves the plant and does not return at 5: 15 need not report back to work ; that they.were discharged." Alt did this, he testified, because he wanted everybody to know that it was a "mandatory order and would have to be carried out." " He further testified that, it was his intention then to discharge permanently any men failing to return to work.1' When employee Stratton protested to Alt that he had a meeting to go to that night, Alt answered, "I am sorry but that is not a sufficient reason."" At the end of the so-called "lunch period" the following employees did not report for work : Bowen, Compello, Fronckowski, Kolb, McMillan, Stratton and Sturgill. In accordance with his announcement, Alt mentally determined to discharge these men promptly upon their failure to return to work, although he was unable to make any physical move to indicate that intention until 8: 30 a. m. the following morning Ruth returned to the plant after the dinner hour in order to pick up his thermos bottle which he had forgotten. but did not check in. Alt asked-him-a question about the work he had been doing and then went off to locate a welder to complete that work. Ruth secured his bottle and left the plant. Alt con- sidered him discharged as of that time. Just before leaving the plant about 6 p. in., Kelly had a conversation with Alt who informed him that eight employees had failed to report back and that he intended to discharge them. Kelly answered, "You are carrying out your orders, meeting mentioned The testimony of the respondent 's witnesses and its p ^.sent employees, Monacelli and Hergenhahn , is remarkable foi the consistency with whuh questions about the type of meeting involved were avoided In view of Alt's admitted "curiosity" about who was going to attend the meeting, his alleged complete indifference to the type of meeting becomes too incredible to be worthy of belief. As the meeting might conceivably have been of sufficient importance to the respondent foi it to have excused the employees from over- time, it is equally unbelievable to this examiner that Kaehler would have insisted upon attendance at overtime without knowing more about the purpose of the meeting. The undersigned has no hesitancy in finding that the respondent 's officials and each of them knew that the meeting was for union organizational purposes 14 The respondent produced at the hearing all notices of overtime work it had ever posted similar to the one posted on October 15 The present notice was the first posted since the respondent's incorporation in October 1 945, and the first overtire night work notice posted applying to the whole shop since October 13, 1943. On February 10, 1945, the respondent posted a notice requiring a full day's work on Sunday, February 11, 1945 In 1943, the respondent required the whole shop to work overtime at night on five separate occasions 15 Respondent contended that it had always been company policy to discharge anyone who failed to obey an overtime work order. However , no one had been discharged because of this alleged rule in the past 5 or 6 years and the rule itself had never been announced to the employees within that same period of time Alt's intention to discharge , in accordance with the alleged rule, appears inconsistent with the respondent 's alleged desire to turn out the requested orders on time 16 Despite his talks with Marick, Heigenhalin, and Monacelli, and his remark to Kaehler, Alt still testified that he "had no recollection of any union meeting" until a week after the events here related This testimony is so completely at odds with the rest of the testimony as to be unbelievable. 17 According to his testimony , Alt did not consider Stratton 's statement a request to be excused. , , 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD if that is what you have done."' They both testified that they "could not under- stand why the men had not returned." Although both of them knew of the scheduled meeting, Kelly having been informed about it at 5: 30 p. in. by Kaehler,l"' so far as the record indicates neither of them mentioned the meeting as a possible cause.'3 Kelly then departed saying that he would call back about 9 p in. to find' ,out how the jobs were going. During the evening, employee Zellers needed some welding done and asked' Alt for a welder. Alt answered, "It looks like our welders did not come back." While Alt was looking for another job for'Zellers, Zellers said, "George, I want you to' understand I did not have anything to do with starting this'union. I was about the last fellow in the shop to sign a card " Alt answered, "The reason we, are working overtime is not on account of the meeting. We have a couple of rush jobs upstairs." 20 About 6: 35 p. m. Zellers returned to Alt and told him that he- had better go home as he did not like to work while the other employees were not there. Alt said, "All right, Bob." They shook hands and Zellers checked out.' Employee Marvell checked out and departed about the same time. The respond= ent considered these men discharged as of the time they left the plant During the evening, employee Ziemlak asked to be excused from work about 8: 45 p. in. for the reason that his wife did not know he was working overtime' and he had no means of communicating' that fact to her. Alt refused' to excuse him on the ground that he (Alt) "had (been) given strict orders the whole shop, should work until 10 o'clock that night " ' Ziemlak continued working ' During the evening, Alt assigned two or four employees to work on the Ameri-' can Can Company and McCormick Company orders mentioned in the telegrams- of August 15. The rest of the employees worked on the jobs they had been doing- earlier that day. Between dusk and dark Kelly telephoned the Baltimore police and asked for police protection at the plant because he ",was having some labor trouble" at the plant 21 About 9 p. m., Kelly called Alt by phone, was told that two more of the- employees had left and, according to their own testimony, mutually expressed, their bewilderment over the situation in the shop He also told Alt of his call, to the police as Alt assured the employees that they would have protection. The meeting at the Union Hall was attended by 8 or 10 of the employees who, had either failed to report back to work or had left the plant after the lunch' period. They elected Popiolek, Ruth and Zellers as a committee to represent them. They also discussed their future strategy in their dispute with the, respondent and picketing the plant. On the morning of October 16, the employees gathered outside' the plant gate about 7: 30 a. in deciding what to do. None of them attempted to enter the plant' reasonably believing that they had been discharged the night before. ' The men discharged the night before were joined by 10 other employees who had worked the overtime period Among these 10 men were Frankell, Fick, Hecker, Mooney; Neal, Rixham and Ziemlak, who decided to picket with the other 10 employees "Despite Knehler's testimony, as well as the testimony of Smuckler, Kelly continued to, deny having heard of any meeting of the employees at least until October 16 or 17 at the earliest, and probably not until October 31 19 Regarding this conversation with Alt, Kelly testified on direct examination, "No, I can't recall the exact conversation." 20 This conversation is undenied 21 Kelly testified his telephone call was made between 8: 30 and 9 p m. while the police officials all place it as found above. Official records show that on October 15, 1946, the sun set at 5: 28 p. m., and that it would be dark by 6 p. m. KELCO CORPORATION 779. - until the question of their discharge was settled. These men were joined after 8.a. in. by employees Hasenei and Sebeck, who had reported at plants other than • the respondent's in order to install some of the respondent's machinery there, and who received orders from Kaehler after 8 a. in. to report back to the respondent's plant. On their return to the plant they discovered the existence of the picket line and joined it. Employee Wissel, who was also called to the plant from outside work,, ignored the picket line and joined the employees inside the plant. At 8: 30 a. in., after seeing these 9 men outside on the picket line which formed about 8 a. in., Alt ordered that dismissal notices be sent to these last named 9 employees, as well as the 10 employees who did not work the night before. Sometime thereafter, Alt saw employee Rutledge on the picket line, which he joined after having worked an hour or so outside before Kaehler's message to return to the plant was relayed to him. Alt thereupon ordered Rutledge's name added to those discharged. The dismissal notices of the 10 who failed to work the night,of October .15, gave as the reason of the discharge "walked off the job," and for the employees discharged the following morning after having been seen on the picket line, "failed to report for work" and were mailed to the employees. This picket line was formed about 8 a. in. under the direction of Organizer Myers. By 8: 15 a. m., the Police Department had received a report from one of its lieutenants that there was a strike in progress at Kelco. However, at the hearing, the- respondent's officials contended that they were unable to under- stand what was occurring until October 17 when the pickets carried banners, one of which mentioned Local 146, U. E.-C. I. O. which indicated to them that the employees were on strike. 'A little after 8 a. in., while Kelly was standing in front of the plant looking at the picket line, Myers approached Kelly, whom he did not then know, and two policemen standing by Kelly and stated that he wished to see Alt in order to try tQ get the dispute straightened out. Kelly asked him if he had any business there and was told by Myers that he was the Union representative and was there to see if he could straighten out the dispute and get the men back to work. Without replying, Kelly turned and walked into the plant .22 'Later that morning, Myers telephoned the respondent's plant, told the tele- phone operator his name, his capacity, his telephone number, and that he desired to speak to Kelly to arrange a conference to settle the dispute. After a short pause, the operator informed Myers that Kelly was busy and could not speak to him. This telephone call was repeated on the afternoon of October 16, The conversation and the result were the same. .Kelly received notices of these calls from Myers but, as he testified, he did not "honor" the calls by answering them. Kelly further testified that when he is' "in conference," no telephone call can get through to him "no matter how im- portant it is, and that includes customers." Kelly later testified that he was "in conference" most of October 16 with Kaehler and the respondent's labor relations counseler, Edward. L. Rich, Jr., to see what could be done "about the 22 According to Kelly's version of this incident, he was standing outside the plant with the two policemen "standing adjacent to me" when Myers approached and asked for Alt. Kelly' described the remainder of the scene as follows : "I did not know who he (Myers) was, and with that [inquiry] I moved on into the plant" Asked why he did not answer Myers, Kelly answered, "I did not know the man and as a result of not knowing who the individual was, I did not think it was within my prerogative to tell him who Mr. Alt was or where he was." Kelly contended at the hearing that Myers spoke to the policemen and not to him. The undersigned finds that Myers' version of the above incident is the true version thereof. 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD situation that had suddenly struck our plant. We did not know what it was all about." This conference prevented him from answering Myers' telephone calls, according to his own testimony. He made no effort to return the calls. Myers telephoned the respondent's plant asking for Kelly again on October 17. The conversation and the results were again the same as on October 16. Kelly again failed to "honor" the call and did not attempt to return it. On October 18, 1946, Myers sent to the respondent by registered mail, the following letter : This is to inform you that the United Electrical, Radio & Machine Work- ers of America, CIO, has been designated as exclusive bargaining agent by a majority of your employees. We therefore request that you recognize the Union as the exclusive bar- gaining agent for all production and maintenance employees, exclusive of supervisors, for the purpose of negotiating an agreement covering wages, hours, and working conditions, and any other matters in dispute between the company and its employees. We will be glad to meet with you at your convenience to discuss the above matters. It was received by the respondent on October 19, 1946 The respondent has _ never answered this letter. On October 18, Alt saw employee Baseman, who had been on sick leave from the plant for several days with an infected jaw, on the picket line outside the plant and thereupon gave orders that he be discharged. Baseman's dismissal notice gave the reason for his discharge as "Failed to report for work." Within 2 weeks a conciliator of the United States Conciliation Service, whose services had been requested by the Union, attempted without success to tele- phone Kelly and to see him in person . Again Kelly refused to "honor" the telephone calls or to see the conciliator, even though he knew the conciliator's business. Since that time, there have been no communications between these parties and the picket line has continued in existence. During the months of October and November, the respondent advertised in the local newspapers for new employees with experience in the type of work performed by the respondent. These advertisements were discontinued, in December. Since October 15, 1946, the respondent has employed two new employees. On December 23, pursuant to a notice-given to the respondent, dated Decem- ber 20, 1946, the following employees, signified their readiness to return to work on December 23, 1946, at 8 a. in.: Milton Anthony Popiolek Joseph E. Ziemlak Raymond Anthony Fronchowski Richard Sebeck Patrick Compello Marion A Kolb Edwin Mooney William B. MacMillan Nelson William Neal William H. Rixham The employees reported at that time and were interviewed individually by Alt and Kaehler, who told each individual man that there were no positions available at that time, but that, when there were such positions, the applications of the employees then on file with the respondent would be considered. KELCO CORPORATION B. Conclusions 781 1. The credibility of witnesses The facts found above indicate that the undersigned has resolved every con- flict of testimony between witnesses for the Board and those for the respondent in favor of the Board witnesses. The unanimity with which the undersigned has been forced to do this requires that he set forth in some detail his opinion of the witnesses as he saw then on the witness stand and as their testimony appeared under scrutiny. First, the Board witnesses were mostly young men, many of whom have recently returned from military service, who testified in a straightforward manner to the small part of the whole story which each had seen or heard himself Each told his segment of the story in his own words with conviction. and with sup- porting details. Their appearance and their testimony had the ring of sincerity and honesty about it The cross-examination served only to enhance that evident honesty and sincerity A-special word should be added about the witness, Smuckler, whose testimony the undersigned has credited against a flat denial by Kelly At the hearing the respondent unsuccessfully attempted to prove this witness incompetent because he had been in it mental hospital from October 31 to December 15, 1946, when he was released on parole to his wife. Acting upon the advice of Dr. Weltmer, the head of this institution, who, would not testify that the witness was incompetent but restricted his testimony to the possibility of jeopardizing Smuckler's recovery by subjecting him to the excitement of testifying, the exam- iner had Smuckler re-examined by Dr Tuerk, a member of Dr. Weltmer's staff. Following this examination, Dr. Tuerk testified without hesitancy or equivoca- tion that Smuckler was sane and competent and would not be injul iously affected by testifying. This testimony was corroborated by Smuckler's appearance and testimony on the stand Both Smuckler and his wife, who also testified, im- pressed the undersigned as persons who would not knowingly tell an untruth. Except for the witness, Howard D Haines, the undersigned cannot similarly characterize the witnesses called by the respondent The respondent's case was largely presented-through its three principal wit- nesses, Kelly, Kaehlec and Alt, each of whom was glib in generalities, sometimes almost completely forgetful of details and prone to testify in contradiction not only to their colleagues' testimony, but also to his own previous testimony, as the exigencies of the moment appeared to'dictate. They appeared to be testi- fying in accord with a preconceived, but not too well correlated, plan rather than in accord with the truth. They were also alert to suggestive objections This being harsh criticism, the undersigned has selected an example from the testimony of each of these witnesses to illustrate in part the finding made above. Kelly's testimony is illustrated by the following excerpts ; Q (By Mr. LEWIN) Have you ever actually refused to negotiate or bar- gain with either of these unions or with these discharged employees or any of their representatives? . . . A. We have not s * * a * s * Q. (By Mr. LEwIN) Mr. Kelly, did you testify in Circuit Court No. 2 in the-injunction case against five' of these discharged employees to enjoin them 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from committing acts of violence," that you then refused to bargain and negotiate with these unions? A. Yes, I think I did on that occasion make the statement; it probably was not meant that way. The testimony of Kaehler is illustrated by the following: Q. (By Mr. BARBAN) You, of course, heard in 1946, that the American Federation of Labor attempted to organize your employees, hadn't you? You heard some talk about that? A. Yes. I heard some talk. . . . I would say in July sometime. Q (By the TRIAL EXAMINER) How did you learn about the fact that the A. F. of L. came into the picture in July, I believe' Mr. LEWIN. I object to that question. I do not remember any testimony they did come into the picture. Trial Examiner WILSON. I will sustain the objection to that question. Did you hear that the A. F. of L. had attempted to organize in your plant? The WITNESS I don't recall anything on that, that anybody stated the A. F. of L. was trying to get in. Q (By TRIAL EXAMINER) Did you hear anything at all about the A. F. of L. ? A. I do not recall I ever did. Illustrative of the testimony of Alt is the following : - Q. (By Mr. LEwIN) Did you have occasion, Mr. Alt, to inspect this work of Mr. Popiolek on this order of the Crown Cork and Seal, after you gave him this final order about'jigs and patterns on October 10? A. On Monday, October 14, after everyone had left the plant and I had -gone around and made an inspection I found that up to that time nothing had been done whatever as far as the making of patterns and jigs for this particu- lar item. .. . * * * * * * Q. (By Mr. BARRAN) Let me ask you this: Are you prepared to testify that no jigs or patterns had been made for the Crown, Cork & Seal job when you made your inspection on the night of October 14th; is that your testimony? A. That is my testimony, that the important jigs and patterns on this particular job had never been made. Q. Are you prepared to testify that no jigs or patterns had been made for this job between October 10th and October 14th? A. The only thing I can recall at that time was they had made a checking gauge which would have been unnecessary had the work progressed properly at the start of this job. Q. That is not the question. The question is this : Between October 10th and October 14th, is it not a fact that Mr. MacMillan had made a checking gauge and in fact had punched in his time on that set-up of jig work? A. That is right. [Italics supplied.] 23 In December 1946, in Circuit Court No 2, the respondent prayed for an injunction from further picketing" and for other relief, against five of its striking employees. After a trial Plaiting a week,' Judge Manley of that Court gianteclY'an injunction enjoining the striking employees "from by threats of bodily harm or acts of violence, in any way or at any place, interfering with the employees of Kelco Corporation, in connection with their employment" but specifically did not interfere with the right of the employees to strike or peacefully picket. ` KELCO CORPORATION 2. The discharges and the strike 783 Eliminating extraneous issues, the present case amounts to the following. An anti-organized labor employer 24 instigated and dominated the formation and administration of the Labor-Management Committee as the bargaining agent for its employees, after learning that an affiliate of the A. F. of L. had attempted to unionize its employees. After having accepted this type of bargaining agent at the suggestion of the respondent, and after having discovered the futility of trying to bargain with the respondent through such an organization, the employees themselves determined to investigate the possibilities of joining a nationally affiliated union or of engaging in concerted activities on their own in order to better their working conditions, and for these purposes scheduled a meeting The respondent learned of the employees' intent. It promptly began looking for some pretext for discharging the leader of the movement as is more fully discussed hereinafter. Respondent also learned of the meeting. On the morning of the day of the scheduled meeting, the respondent dischaiged this leader without explanation. Three quarters of an hour before the end of that day, the respondent suddenly scheduled a night overtime work session mandatory for every employee for the whole scheduled period. This was the first such notice in 3 years. The scheduled session encompassed the time the employees had set aside for the organizational meeting. Respondent's foreman orally announced to all the employees that any one who failed to work the complete overtime period would be discharged. He refused to excuse an employee who stated he wanted to attend the meeting. The only possible inference from these facts is that the respondent intentionally ordered this overtime session at the particular time in order to interfere with the right of its employees to engage in concerted activities, and to coerce them into abandoning their right to self-organization and to join unions of their own choosing, by threatening them with the loss of employment for so doing. But the respondent contends that it had no knowledge of the ; cheduled organi- zational meeting. The respondent also contends that it was compelled to work the employees overtime on October 15, because of requests from two of its chief customers that the respondent expedite the delivery of their orders, and that, therefore, this session had nothing to do with the fact that the union organization -meeting was to be held at the same time. The first point has heretofore been held untenable as the facts show that Alt ,admittedly knew of the scheduled meeting of the respondent's employees to be held off the respondent's property and beyond the respondent's supervision,R" thereby proving that the respondent knew that this overtime session was inter- fering with concerted activities of its employees. Kelly also knew that a "union meeting" was to be held' Common sense dictates from all the facts that the respondent knew of the meeting and its purposes, and it is so found. Regarding the "urgency" of the request of the two customers that the respond- ent expedite their orders, it is to be noted that all these orders were originally .given in the early months of 1946, that the necessity for such expedited delivery ..arose suddenly on October 15, and so far as the record shows, apparently died .,suddenly the same day, for a goodly part of the goods are still undelivered and neither customer has thereafter inquired about delivery. Nor canceled the 'orders. The two telegrams simultaneously delivered on October 15 are unique 24 The type of employment interview given by Alt justifies such a finding. ^ As he knew that the meeting was not to be held on respondent's property. 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the respondent's annals, being the only similar telegiams the respondent has received before or since The American Can Company telegram confirmed a telephone request of October 14 for expedited delivery, winch, from all the evi- dence, the respondent completely disregarded on that day There is no explana- tion in, the record as to why.Neser of the above-named company delayed from 9 a m., October 15, when lie-testified he received a "iery urgent" telephone call from his New York office regarding these orders, until 2 p. in, before attempting to secure respondent's cooperation in expediting the orders Nor is there any indication in the record as to why this urgency apparently disappeared imme- diately after October 15 It is further to be noted that the respondent failed to work overtime on any other day than October 15, the day of the scheduled organizational meeting, in order to try to comply with these alleged requests for expedited delivery. Nor does it seem logical of good, busi ness practice, if the respondent was mak- ing a bona fide effort to comply with bona /rife requests, for it orally to threaten its employees with discharge if they failed to work the overtime shift so suddenly decided upon, or thereafter actually to discharge two-thirds of its production employees, thereby making compliance with requests of its two largest customers impossible The demand for the attendance of all its production employees dur- ing the whole overtime session becomes logical only if it were for the purpose of preventing its employees from attending the simultaneously scheduled meet- ing and engaging in concerted activities. The undersigned so finds The undersigned, therefore, finds that the overtime work notice of October 15, 1946, was not issued by respondent in good faith nor for legitimate business reasons but, on the contrary, was deliberately issued to create discriminatory conditions of work designed to intertere with, restrain, and coerce respondent's employees from exercising their rights to self-organization, to join or assist labor unions of their own choosing and to bargain collectively and for other mutual aid or protection, in violation of Section 8 (1) of the Act. That evening Alt made use of that same discriminatory order as a pretext to discharge the 10 employees who had refused to be intimidated by it and had exercised their rights under the Act by attending the meeting despite the order. The employee-, had the right to refuse to obey a discriminatory order. When Alt informed Kelly that he was discharging these employees for disobeying the notice Kelly answered: "You are carrying out your orders, if that is what you have done." The undersigned, therefore, finds that on October 15, 1946, the respondent dis- -charged employees Bowen, Compello, Fronchowski, Kolb, MacMillan, Marvell, Ruth, Stratton, Sturgill and Zellers in fulfillment of its plan to sever from its employ all those of its employees who were interested in self-organization, unionization, concerted activity or anything other than representation through the respondent-dominated Labor-Management Committee 30 and because of their activities on behalf of the Union and of self-organization, in order to discouiage membership in the Union. The case of the 10 employees discharged on the morning of October 16 is slightly different from that of the employees discharged on October 15. These last individuals joined the previously discharged employees in picketing the respondent's plant on October 16 in protest to the respondent's unfair labor 20 As early as October 7. 194d at the last Labor-lianagement Committee Kelly indicated this when he said "It the men did not like the wad it (the Committee ) was going they can pick up their tools and leave." KELCO CORPORATION 785 practices in discharging the first 10. After seeing these last 10 employees 2T on the picket line, Alt ordered separation notices prepared for them at 8: 30 a. in. It is admitted that Alt also ordered the dismissal notices prepared at this time for the first 10 men discharged. The respondent contends these last 10 employees were dischai ;ed for failure to report to work after respondent knew that they were physicai1 able to work from having seen them on the outside, or on the picket line. This fact could also lead to the inference that the employees were fired for having joined in a concerted protest with their discharged fellow employees. However, the respondent maintained throughout that it had no knowledge of the fact that the employees outside were picketing the plant until October 17 when some of the employees walking up and down in front of the plant carried a banner which referred to "UE-CIO, Local 146 " The fact is that a picket line without banners was formed sometime between 7 : 4;5 a in and 8: 30 a. in., on October 16, and that prior to the actual marching of the pickets in line, the employees had been standing in groups outside the plant and not report- ing to work A reasonable man would have understood from these activities of the employees that the men were engaging in concerted activities and were on strike In fact, about 8: 15 a. in., a police lieutenant had already reported to his superior some distance away that there was a strike at the respondent's plant. Despite his profession of ignorance, at the hearing, Kelly suspected that his employees were going to strike, for by 9 p. in on October 15, lie had tele- phoned the police requesting protection for his plant on the following morning, because he was "having labor trouble" Theiefore Kelly knew the evening before the picketing began that lie had created "labor trouble" when the 10 employees that evening accepted his challenge of being discharged in order to attend the meeting. The respondent's alleged profession of ignorance is further weakened by the fact that Kelly himself had refused to speak with the union organizer on the morning of the 16th, after that organizer had introduced himself to Kelly and the two policemen standing alongside of him. Furthermore, any such ignorance was self-induced by Kelly's refusal to accept or honor telephone calls from this organizer on the grounds that he was in conference with his labor consultant trying to figure out what the trouble was. The undersigned, therefore, finds that the respondent had full knowledge by 8: 30 a. in October 16, 1946, that the employees were on strike. The fact is that Alt made no attempt to discharge the second group of 10 until each of them had been seen outside the plant on the picket line. After seeing this group of 10 engaging in concerted activities protesting respondent's unfair labor practices, the respondent in furtherance of its plan to eliminate all employees interested in self-organization, unionization or concerted activities, discharged the second group at 8:30 a. m. Respondent made absolutely no effort to induce the men to work or even to determine the cause of the dissatis- faction as would seem reasonable if the respondent had received actual requests to expedite orders and was making a bona fide effort to comply. In fact, as shown heretofore, respondent by actually preventing any communication between the strikers and itself proved that its real purpose 1n`discharging the second group of 10 was to prevent unionization in the plant rather than for their failure to report for work ZT Under the terns of Section 2 ( 3) of the Act, these men remained'employees because their work also ceased because of,respdndent 's unfair labor practices A 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The undersigned, therefore , finds that on October 16, 1946, the respondent discharged employees Frankell , Fick, Hasenei , Hecker, Mooney, Neal , Rixham, Rutledge, Sebeck, and Ziemlak because they engaged in concerted activities by striking in protest to respondent 's unfair labor practices thereby discouraging membership in the Union. The respondent completed its campaign to discourage concerted activity and membership in the Union on October 18, 1946, by discharging employee Baseman, who had been on sick leave during the period of organizational activity, after it had seen him on the picket line. 3. Interference, restraint, and coercion The respondent has, as indicated by the facts heretofore found, interfered with, restrained, and coerced the employees in the exercise of their rights guar- anteed in Section 7 of the Act by the following activities : (a) It illegally questioned prospective employees about their union member- ship and activities and stated through its foreman, Alt , the respondent's oppo- sition to unionization , as well as disparaged the labor movement as a whole- This activity was proved in Alt's employment interview with Baseman in September 1946, which Alt testified was not unusual. (b) As heretofore found, the respondent imposed on its employees conditions of work designed and intended to prevent said employees from joining or assist- ing the Union or engaging in concerted activities , by requiring them to work overtime instead of attending a union organizational meeting on penalty of loss of employment. The imposition of such discriminatory conditions of work constitutes a violation of Section 8 (1) of the Act. (c) It threatened employees with discharge if they attended a known union meeting instead of working an unexpected and unnecessary overtime period scheduled by it for the purpose of preventing the employees ' attempted exercise of their right to form, join, or assist labor organizations . This is exemplified in the record by Alt's announced intention of discharging any who failed to work the required overtime session. Such coercion violates Section 8 (1) of the Act. The fulfillment of this threat has heretofore been found to be a vio- lation of Section 8 (3) of the Act. (d) By these same activities , the respondent warned its employees to refrain from assisting, becoming, or remaining members of the Union or engaging in concerted activities for the purposes of collective bargaining or other mutual, aid or protection, which also constitutes a violation of Section 8 (1) of the Act., (e) The respondent further violated Section 8 (1) of the Act by dominating and interfering with the formation and administration of the Labor-Management, Committee and by contributing financial and other support thereto , thereby interfering with, restraining , and coercing its employees in the exercise of the- rights guaranteed in Section 7 of the Act. This Labor-Management Committee was formed at the suggestion and insti- gation of the respondent as the facts show. The respondent admitted, and the- undersigned finds, the respondent further dominated its administration and assisted the Labor-Management Committee by financial payments to the labor committeemen and by providing the employees with a rent -free meeting place. The respondent defended against this charge with the claim that the Labor- Management Committee was not a labor organization under the definition of that term in Section, 2 (5) of the Act, for the reason that the respondent intended' in its formation that it be simply a procedure whereby production problems., KELCO CORPORATION 787 could be discussed, and for the further reason that there was "no bargaining" in this Committee because there were "no demands," according to the testimony of the respondent's witnesses. The facts show that the Labor-Management Committee was an organization in which the respondent's employees participated at the instigation of the re- spondent. The facts further show that despite the testimony of the respondent's witnesses, the Committee was intended to act as the representative of its employ- ees because one of the specific ends the Committee was to accomplish was to pro- vide a forum for the discussion of grievances, according to Alt's outline of the plan. It is undisputed that the first matter discussed in meetings with the management was the question of an increase in wages requested by the labor committeemen. When the witnesses for the 'respondent testified that the con- versation about the wage increase proposal lasted in toto only 3 or 4 minutest they apparently forgot that Kelly's answer to this request, delving as it did into economic conditions in general, admittedly consumed a "good half hour." As the two meetings together consumed approximately 2 hours, it becomes obvious that one quarter of the time spent was spent on wages alone. The other topics discussed were also closely related to wages and other conditions of work. The Labor-Management Committee therefore falls completely within the definition of a "labor organization" of the Act. The undersigned, therefore, finds that the Labor-Management Committee was a labor organization within the meaning of the Act, and that by dominating and interfering with its formation and administration, by contributing financial and other support to it in violation of Section 8 (2) of the Act, the respondent inter- fered with, restrained, and coerced its employees in their right to self-organiza- tion, to form, join or assist labor organizations and to bargain collectively through representatives of their own choosing.28 4. The refusal to bargain a. The vw,t and the majority The facts show that the respondent employed at its Baltimore plant a number of classifications of production and maintenance workers, engineers and drafts- men, salesmen, clerical employees and supervisory employees. The production and maintenance employees are a separate and self-contained group readily identifiable as having similar interests. They are all employed under the super- vision of one foreman, Alt. The other groups above mentioned are under the supervision of other officers of the company. The production and maintenance employees are all engaged in the manufacture and installation of the respond- ent's fabricated metal products. From two to as many as eight employees are generally engaged in the installation of these products at plants other than that of the respondent. When not so engaged, these latter individuals are also engaged in production work with the other employees at respondent's plant. The respondent's answer denied the appropriateness of the unit composed of all production and maintenance employees, but failed, as did the respondent's testimony, to indicate what, if any, unit respondent actually considered appro- priate. The facts indicate clearly that the respondent actually considered the 2s The respondent's activities relating to the Labor-Management Committee are alleged in the complaint as a violation of Section 8 (1) only, and not as a violation of Section 8 (2) as well As the Committee appears to have been disbanded by the activities of October 15 and 16, there seems little need to order its disestablishment at this time. 788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD production and maintenance employees, including those employees engaged in installation work at plants other than the respondent's, to be an appropriate bargaining unit for the reason that this was the unit which the respondent selected when it formed the Labor-Management Committee The undersigned, therefore, finds that all production and maintenance em- ployees employed by the respondent at its Baltimore plant, but excluding all engineers, draftsmen, salesmen, all clerical employees and all supervisory employees with authority to hire, promote, discipline, or otherwise effect changes in the status of employees or effectively recommend such action, have at all times material herein constituted and do now constitute an appropriate bar- gaining unit within the meaning of Section 9 (b) of the Act. At all times material herein, and on October 16, 1946, the maximum number of production and maintenance employees carried by the i espondent on its pay roll was 34, which included 3 employees absent then on account of sickness, and the 20 employees who began picketing that day because of the respondent's unfair labor practices?' It is settled law that strikers and/or discriminatorily discharged employees remain employees and that the employer remains duty bound to bargain with the representative of the unit of which such employees remain an integral part. On October 11, 21 production and maintenance employees had authorized the Union to bargain for them through the authorization cards described heretofore. By October 18, 3 more of the employees had signed similar authoiization cards The undersigned, therefore, finds that on October 11, 1946, and at all times thereafter, the Union was the duly designated bargaining representative of the majority of the employees in the aforesaid bargaining unit, and that pursuant to Section 9 (a) of the Act, the Union was on October 11, 1946, and at all times thereafter has been, the exclusive representative of all employees in the aforesaid unit for the purposes of collective bargaining with the respondent in respect to rates of pay, wages, hours of employment and other conditions of employment. b. The refusal to bargain On October 16, when Myers, the authorized representative of the Union, inquired for Alt, of two policemen and Kelly, standing "adjacent" to them, stating that he was the authorized representative of the Union, Kelly turned on his heel and returned to the plant without answering. On October 16, Myers, the then known representative of the Union and of the employees, twice telephoned to Kelly who refused to answer the call or to "honor" it by returning it. On October 17, Kelly again refused to accept or "honor" Myers' telephone call. On October 19, 1946, Kelly received, but refused to acknowledge, a letter from the Union advising him that it represented a majority of the employees, and requesting a conference to settle the dispute Within 2 weeks thereafter, Kelly refused to receive a conciliator from the United States Conciliation Service in person or to answer or return phone calls known to be from this conciliator, whose business was also known to the respondent. In line with its other defenses the respondent contends that it has not refused to bargain with the Union because it has never said orally or in writing that it refused. However the respondent's refusal to answer the telephone requests of Baseman , who was discharged on October 18, was on sick leave at this time. KELCO CORPORATION 789 the Union and the letter of the Union speak as clearly as though the respondent had put its refusal in writing or in words. The respondent's intention to -refuse to bargain was clearly expressed to Mrs. Smuckler as found hereinafter. Under all the facts of this case the undersigned finds that, on October 16, 17, and 19, 1946, and at all times thereafter, the respondent refused to bargain collec- tively with the Union as the exclusive representative of the employees in the above-found appropriate unit and has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 5. The discharge of Milton A. Popiolek Milton Popiolek began his employment with the respondent as a sheet metal mechanic in the latter part of January 1946, soon after his return from the service. At the hearing, Alt testified that Popiolek was a "satisfactory" worker. In view of the admitted fact, which Alt stressed in other portions of his testimony, that Popiolek was the "supervisor" in the sense of the leadman on numerous important and rush jobs in the plant, the appraisal as "satisfactory" appears to be an understatement. The undersigned accordingly finds that Popiolek was a good employee. Popiolek was elected as one of the three labor representatives on the Labor- Management Committee by the employees. He attended both meetings with management. After the second and last meeting he reported back to the indi- vidual employees on the results of that meeting and it was through him that the employees decided and intended to get in contact with the union organizers. Popiolek arranged a meeting for Ruth and himself with the union organizers at which they secured union application cards. Popiolek and Ruth passed these cards out to the employees in the shop on October 10 and 11, collecting those which had been executed. Fifteen of the employees executed and returned these authorization cards to Popiolek personally. Popiolek and Ruth delivered the 21 signed cards to Organizer Myers on October 11 and made arrangements with Myers to hold an organizational meeting of all the shop employees at the Union Hall on October 15 at 8 p. in. On Saturday, October 12 and Monday, October 14, Popiolek informed the em- ployees of the scheduled meeting. That Popiolek was one of the leaders, if not the leader, in the move to unionize the plant was well known °0 On October 14, two more employees handed their signed authorization cards to Popiolek and Hergenhahn promptly reported to him concerning Alt's inquiry about Hergen- hahn's attendance at the proposed meeting. As Popiolek came into the plant on the morning of October 15, Alt approached him and told him that he did not need to change his clothes. When Popiolek asked why, Alt stated that his money would be waiting for him. As Alt turned to depart, Popiolek said, "George, I guess you know we have got the majority of ,30 In the support of its alleged lack of knowledge about the type of meeting scheduled for October 15 and about Popiolek's leadership in the unionization drive, the respondent brought out the fact that the employees were enjoined to secrecy regarding the distribution and execution of the authorization cards as well as the union meeting of October 15. Com- mon sense indicates that keeping such matters secret in a plant the size of the respondent's would be next to impossible especially when the union activities were being carried on in the plant under the eyes of respondent's officials. The speed with which Alt learned of the October 15 meeting the day before proves that the above matters were not unknown to respondent and the undersigned so finds. 809095-49-vol. 79-51 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD, the men in the Union and you are fooling around with the National Labor Board'- Do you still want me to go?" Alt's answer was "I want you to go." 31 Popiolek was given his pay and departed. No further explanation for his. discharge was given him until he received his separation slip by mail which gave the cause of discharge as follows : "Discharge due to failure in following: instructions." Respondent contends that it discharged Popiolek because of his failure to obey instructions on an order known as the Crown Cork and Seal job, upon which Popiolek was working. This order for 36 bottle or explosion guards went into production on August 27, 1946. Each of these 36 bottle guards was composed of 3 individual circular segments fitting together to make a perfect circular guard. These guards were to be constructed so as to attach onto an already existing machine. Each of these 3 circular segments required literally hundreds of holes to be made in it by which angle irons were to be attached or the completed guard was to be attached to the machine. Close accuracy in the placing of these holes was required. On August 27, Alt assigned this job to Popiolek giving him the blueprints to, study and telling him to make the necessary patterns and jigs for the fabrica- tion of these jobs. A search for the jigs and patterns used on a similar 1940' order of the same type proved fruitless 32 After studying the blueprints, Popiolek suggested to Alt that the holes be punched in the guard rather than drilled. because of the fact that holes can be punched much more rapidly than they can be drilled. Alt agreed that the punching process would be all right and for Popiolek "to go ahead." 33 Thereupon Popiolek made a complete guard using this punching process. This sample was -submitted to the Crown Cork and Seal Company for approval. Alt well knew that no jigs or patterns had been made, and that the holes had beeni made by the punch process. The inspector for the Crown Cork and Seal Company found three holes in the sample out of line, but in a telephone conversation with Kaehler on September 5, 1946, agreed to make the necessary corrections, to accept the sample and for respondent to complete the order. A written confirmation of this was sent to the respondent. Sometime later, Alt informed Popiolek that the sample was "okay and to go ahead with the rest of the order." It is undisputed that Popiolek was told nothing: further about the sample or the three holes being out of line.- About the middle of September and again on September 26, Alt mentioned to. Popiolek that it would be a "good idea" to make a jig to secure the two end brackets on each of the three segments84 Popiolek frankly admitted that he forgot this suggestion and failed to make the bracket jig. He did demonstrate to Alt that the article itself acted as a type of jig thereby making the suggested jig unnecessary. 31 The conflict of testimony between Popiolek and Alt as to the phraseology of the above- found statement has been discussed supra under Section A. 32 Sometime thereafter Popiolek did locate a battered but useable .pattern as it was being discarded by the respondent 33 When holes are punched it is admitted that no jigs or patterns are necessary. 34 After testifying on direct examination that he could not remember any of the details of the conversations, Alt continued by testifying that he "ordered " or "directed" Popiolek to make "jigs and fixtures " For reasons stated heretofore , and because of the generalities and general vagueness of Alt's testimony , the undersigned accepts Popiolek 's version as' found above. KELCO CORPORATION' 791 As Alt knew, Popiolek continued thereafter to make this order using the same punch process. About September 26, Popiolek made an error in placing some of the holes which he discovered himself and which caused him to fill up the misplaced holes and repunch them in the correct places. On one of his inspections, Kaehler saw Popiolek correcting this error but made no comment to him. After his inspection in the latter part of September, Kaehler told Alt to have the patterns and jigs made "before the job went much further." Kaehler ad- mittedly never spoke to Popiolek. According to the testimony of Kaehler, he spoke to Alt in the same vein after another inspection trip early in October. On October 10, the day that Popiolek first began circulating union authorization cards in the shop to the employees for their signature, Kaehler again inspected the shop and either that day or the next morning had the timekeeper begin com- piling a statement of the time which had been spent on this Crown Cork and Seal job He testified that he believed the job was taking too long. Kaehler "believed" he mentioned requesting this time study to Alt who had never com- plained that the job was taking too long. Although this tabulation was handed to Kaehler on the evening of October 14, it was not shown to Alt before he dis- charged Popiolek and hence could have played no part as a reason for that discharge." On October 11, Alt assigned Popiolek to two special rush jobs and told him to get his helper, MacMillan, "straightened around" on the bottle guard job before starting the rush jobs himself. Alt then said, "I think it would be a good idea if we turn around and make drill jigs and fixtures." When Popiolek asked why, Alt answered that it would be useful "to compare the two orders," i. e., the first 18 bottle guards and the second 18. On the evening of October 14, Alt inspected the work in the shop and also noted "if anything had been done especially on this" Crown and Seal job. Alt first testified that he found that "nothing whatever" had been done on the patterns and jigs but later admitted on cross-examination that a checking gauge had been made subsequent to his request of October 10 .^ The following morning, Alt discharged Popiolek without explanation and with- out speaking to MacMillan or making any attempt to find out if Popiolek had passed on Alt's "order" to make jigs and patterns to MacMillan. Popiolek attended the organizing meeting that evening and has been on the picket line ever since. Alt's testimony was that he determined to discharge Popiolek when he dis- covered during his inspection on the evening of October 14, that no jigs and pat- terns "whatever" had been made subsequent to his request of October 10. It is obvious that this failure could have been due either to MacMillan's failure to 11 This tabulation as produced at the hearing indicated aZl the time spent on the Crown Cork and Seal job. The respondent originally contended that at the time of Popiolek's discharge, only 80 percent of the first 18 guards of the Crown Cork and Seal order had been completed . At the hearing, it was later admitted that not only 80 percent of the first 18 guards had been completed , but that 30 percent of the final 18 guards had also been completed. This tabulation therefore indicated that the Crown Cork and Seal job was not taking more than the time estimated for it. Hence , this tabulation failed to confirm the contention the respondent originally claimed it proved. 36 See testimony quoted under Section BI . In fact, Alt knew what MacMillan had been doing on this job and hence knew even before the inspection that the checking gauge had been made . Nor had Alt criticized MacMillan for making this gauge although he contended that "it would have been unnecessary had the work progressed properly at the start of the job " 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD carry out instructions given himbyPopiolek or else to Popiolek 's,failure to pass those instructions on to MacMillan. If the failure was due to the first of these, MacMillan should have been the man , if either discharged. But Alt discharged Popiolek without making any investigation as to which man was to blame. Moreover, the proof that -the alleged -failure to make jigs and patterns was not the underlying cause of the discharge, is the fact that, when 'he discharged Popiolek allegedly for this ifailure, Alt knew that a jig had been made so that there was, in -fact, -no failure to obey orders It is, therefore, clear that Alt attempted to justify'his discharge of Popiolek by giving an•untrue' reason as the explanation for the discharge. Beginning the very day Popiolek started soliciting memberships in the'Union, respondent, through Kaehler, began checking Popiolek's work for mistakes, even thr,ugh respondent, through Alt, still considered him a good enough workman to assign to special rush work. On the very day the respondent learned of the union organizational meeting of its employees scheduled for the following eve- ning, arrangements which had been made and circulated to the employees by Popiolek, the respondent, through Kaehler, determined by erroneous calcula- tions that Popiolek's job -was taking too much time and respondent, through Alt, allegedly working independently, determined to discharge Popiolek on an- other pretext known at the time to he untrue' And on the morning of -the day of the scheduled organizational meeting, respondent discharged the leader of the organizational drive, Popiolek, without explanation. Besides its demonstrably false defenses, respondent relied on its claim of ignorance of Popiolek's Union membership or activity. In N. L. R. B. v. Link- Belt Company e8 the Supreme Court speaking through Mr Justice Douglas of a similar situation said : "The evidence as to inefficiency is quite inconclusive. The Board was justi- fied in relying on circumstantial evidence of discrimination and was not required to deny relief because there was no direct evidence that the em- ployer knew these men had joined Amalgamated and was displeased or wanted to make an example of them." The true explanation for Popiolek's discharge was the fact that he was the leader in the effort to organize the respondent's employees, and that the respond- ent was willing to go to any lengths to ,prevent such organization. When the discharge of Popiolek failed to prevent that activity, the respondent. thereafter posted its overtime work notice thus presenting the employees with the choice of either abandoning the .union meeting or of losing his employment with the respondent. The undersigned, therefore, finds that the respondent discharged Milton A. Popiolek on October 15, 1946, 'because of his activities on behalf of the Union. 6. -Emmanuel Smuckler Emmanuel Smuckler began his • employment with the respondent in October 1942 and worked continuously for it until'October 23, 1946. 37 The importance of the jigs and patterns as a pretext for the discharge of Popiolek is obvious. Their actual unimportance is attested by the following facts: (1) Alt had approved a procedure on September'5, which obviated the necessity for jigs and patterns; (2) from August to October 10, 1946, the only jig mentioned by Alt was an end bracket jig; and ( 3) Alt who had watched MacMillan closely as he was working on the Crown Cork and Seal job-had never mentioned jigs and patterns to him after he had relieved Popiolek and did not complain while MacMillan was making the checking gauge 28 311 U. S 584. KLLCO CORPORATION 793 He signed an authorization card for the union on October 10, 1946 On October 14, as found heretofore, Kelly asked him if he were going to attend the Union meeting, which Smuckler denied Smuckler did not intend to go to the meeting because of his deafness. Smuckler. worked the complete overtime period on October 15 and continued working' after the discharged' employees began picketing On October 18 Smuck- ler left the plant early to go to a movie as he was upset by the necessity of his crossing the picket line. That evening, Kaehler visited the Smucklers' home and when he was, told by Mrs. Smuckler what was bothering her husband he said, "I know we are not accepting any union. We don't want no union." When Smuckler entered the room and saw Kaehler, he began arguing to Kaehler that it would be' better for the company and the employees, if the respondent would recognize the Union To this Kaehler answered, "I don't know about a union but you come back tomorrow and we will see what is going to be " Smuckler returned to work as requested and continued, going through the picket line to work until October 23, when he again stopped work Thereafter, the respondent saw him in and around the picket line outside the plant. On the night of October 24, Kelly, Kaehler and Alt visited Smuckler at his home "to straighten him out" according to their testimony After Smuckler came into the room' he said to Kelly, "Please Mr. Kelly, please break that (picket) line and, bring those boys back. It will be much better for you if you will recog- nize that union." Kelly then wrote Smuckler two notes, the second saying that he would pay Smuckler more money if lie would come back to work and forget the pickets.3° Smuckler's answer to this was to get quite violent and shout "you are not going to buy me, and if you don't bring the boys back, I am never going back to work," and to repeat over and over again "friends are much better than gold'." In an emotional but emphatic voice, Smuckler ordered the visitors out of his house. As Kelly was leaving he said' to Mrs. Smuckler, "You had better tell Mr. Smuckler that is the last decision He is coming back to work or he is fired."" Smuckler did not return to work thereafter, but was seen the next day on the picket line. Unlike the other employees, Smuckler has never received a separa- tion slip. At the hearing, the respondent's counsel stated that "KmmanueF Smuckler was never discharged from (respondent's) employ. On the other hand, he has been 30 The transcript indicates Smuckler as testifying , "Mr Kelly came and wanted to give me more money to come back to work or to get the men outside." At another place the underlined words were recorded as "if he got the men outside " The undersigned heard the words as originally produced here even though the sentence did not make sense. Due to his deafness, Smuckler's enunciation was somewhat strange. The witness' last answer to a question by the respondent's attorney in the, transcript, "He (Kelly )' would' give me more money and leave the men outside" indicates clearly that the word actually used in his previous answers had been the word "forget " 40 Kelly's version of this event differs materially with that found' above His testimony indicates that his first note to Smuckler was an inquiry about his health and , the second was the following : " Smuck, you ought to try to get yourself straightened, out; we would like to see you back on, the job, but if you feel you have to have some rest , rest up and as soon as you are straightened out, come in to work." Smuckler did not get excited until after Kelly 's second note Kelly also testified that Smuckler repeated a number of times the words • "Friends are much better than gold " These words, which Kelly testified he did not understand , are perfectly comprehensible under Smuckler 's version of the contents of the notes but not under Kelly's . Certain facts are agreed upon by all witnesses. These fact, make sense under the Smucklers version , but are incomprehensible under Kelly's testimony Therefore , the undersigned accepts the testimony of the Smucklers. 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD absent from work on account of his mental illness. If he appears at the plant of the Kelco Corporation voluntarily, and ready and able to do the work which that company has for him to do, his job is there for him." Thereafter, on October 31, Smuckler was admitted to the Spring Grove Hospital from which he was discharged on December 15, 1946, on parole to his wife. Psychiatrists from that institution testified that he was sane, competent, and physically able to do light work, but were not sure that it would be good for Smuckler to do his regular work at this time. Relying on counsel's statement and the fact that Smuckler did not receive a separation slip from the respondent, the undersigned finds that Smuckler was not discharged by the respondent. The facts show that on and after October 23, 1946, Smuckler became an unfair labor practice striker. The-undersigned so finds, and will recommend that as such, he be reinstated upon his application to his former or substantially equiva- lent position when physically able to perform it. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III, above, occurring in connection with the operations of the respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead and have led to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in unfair labor practices vio- lating Section 8 (1), (3) and (5) of the Act, the undersigned will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Respondent in the instant case has not only orally coerced and intimidated its employees by threatening economic reprisals against those who desired rep- resentation in the matters of collective bargaining, and also created conditions of work designed to deprive its employees of their rights under the Act upon penalty of dismissal, but has later executed these threats as against 22 indi- vidual employees by actually depriving them of their economic livelihood by discharging them from its employ because of their attempt to exercise their rights under the Act, and for engaging in concerted activities guaranteed by the Act. These facts conclusively prove the respondent's fixed intent to defeat self- organization and to deprive its employees of all the rights guaranteed by the Act. Its violations of the Act indicate the respondent's firm intention to deprive its employees of those rights by any means available to it. Such disregard for the fundamental rights of employees as evidenced by the threats, the coercive conditions of work, and the discharges mentioned above, as well as by the policy adopted to prevent the employees from enjoyment of the right to bargain collec- tively, convinces the undersigned of the ever present danger of the commission by the respondent of further types of unfair labor practices in the future. It is therefore recommended, in order to effectuate the policies of the Act and to deter the respondent from future violations thereof, and in order to make effective the interdependent guarantees of Section 7 of the Act, thereby pre- venting a recurrence of unfair labor practices and minimizing industrial strife, that the respondent be ordered to cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. KELCO CORPORATION 795 As the facts prove that the respondent discriminatorily discharged the first group of 10 employees on October 15, 1946, because of their refusal to be intimi- dated by the discriminatory work order promulgated by respondent in violation of Section 8 (1) of the Act, the undersigned will make the usual recommenda- tion for such discharges ; namely, reinstatement and back pay. This recom- mendation will also apply to Milton A. Popiolek. As heretofore found the second group of 10 and Baseman went on strike, a strike caused by respondent's unfair labor practices. The law is definitely estab- lished that unfair labor practice strikers retain their status as employees during the pendency of the labor dispute and, upon its termination, are entitled to their former positions regardless of whether they had been replaced during the strike. Customarily, strikers signify their availability for work by requesting rein- statement. But here where the employer discriminatorily discharged the strikers during the pendency of the strike and thereby effectively barred their return to work, the discharge effectively proved the futility of any such request for reinstatement. As the employer is not entitled to profit by his own wrong which has made futile any application for reinstatement, back pay to these employees should run from the date of respondent's discriminatory discharge which for the group of 10 would be October 16 and for Baseman October 13" Nor can respondent here contend that these discharges constituted no more than a "tactical maneuver" after refusing reinstatement to the 10 employees who requested it on December 23, 1946, and after the uncompromising attitude respondent assumed on and after October 16, 1946. The undersigned will recom- mend that the respondent reinstate Marvin Baseman, James Stephen Bowen, Pat Compello, Raymond Frankell, George E. Fick, Raymond A. Fronckowski, Walter Hasenei, Harry F. Hecker, Marion A Kolb, William B. MacMillan, Wil- liam C. Marvell, Edwin J. Mooney, Nelson W. Neal, William H. Rixham, Harold W. Ruth, James E. Rutledge, Richard Sebeck, W. M. Stratton, Charles J. Sturgill, Robert T. Zellers, Joseph E. Ziemlak and Milton A. Popiolek to their former positions and make each whole for losses incurred by each of them because of -respondent's discrimination against each by payment to each of a sum of money equal to that which each would normally have earned from October 16, and in the case of Popiolek from October 15, 1946, the date of the discrimination, to the -date of the respondent's offer of reinstatement, less his net earnings 42 during said period. The undersigned will also recommend that the respondent reinstate Emmanuel Smuckler to his former or substantially equivalent position without prejudice to his seniority and other rights and privileges upon his application accompanied by an affidavit from a duly licensed physician that Smuckler's health will not ,be jeopardized by such return to employment. Having further found that the respondent refused to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit, the undersigned will recommend that the respondent upon request bargain col- lectively with the Union. Upon the basis of the above findings of fact, and upon the entire record in the case, the undersigned makes the following : 41 Fourth Annual Report of National Labor Relations Board , p. 105 ; Matter of Industrial ,Cotton Mills Company, Inc., 50 N. L. it. B. 855, 869. 42 Matter of Crossett Lumber Co., 8 N: L. it. B. 440, 497-498. 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. United Electrical, Radio and Machine Workers of America. CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and- is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 3. By discharging and discriminating in regard to the hire and tenure of employment of Marvin Baseman, Janes Stephen Bowen, Pat Compello, Raymond Frankell, George E. Fick, Raymond A. Fronckowski, Walter Hasenei, Harry F. Hecker, Marion A. Kolb, William B. MacMillan, William C. Marvell, Edwin J. Mooney, Nelson W. Neal, William H. Rixham, Harold W. Ruth, James E. Rut- ledge, Richard Sebeck, W. M. Stratton, Charles J Sturgill. Robert T. Zellers, Joseph E. Ziemlak and Milton A. Popiolek, thereby discouraging membership in United, Electrical, Radio and Machine Workers of America, CIO, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 4. All production and maintenance employees employed by Kelco Corporation at its Baltimore plant, but excluding all engineers, draftsmen, salesmen, all clerical employees and all supervisory employees with authority to hire, promote, discipline, or otherwise effect changes in the status of employees or effectively recommend such action constitute an appropriate unit for the purpose of col- lective bargaining within the meaning of Section 9 (b) of the Act. 5. United Electrical, Radio and Machine Workers of America, CIO, was on October 16, 1946, and at all times thereafter has been the exclusive representa- tive of all employees in the aforesaid unit for the purposes of collective bargain- ing within the meaning of Section 9 (a) of the Act. 6. By refusing on October 16, 17, and 19, 1946, and at all times thereafter, to bargain collectively with United Electrical, Radio and Machine Workers of America, CIO, as the exclusive representative of all its employees in the aforesaid appropriate unit, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8'(5) of the Act 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS On the basis of the above findings of fact and conclusions of law , and upon the entire record in the case , the undersigned recommends that the respondent, Kelco Corporation , Baltimore, Maryland , its officers, agents, successors, and assigns shall: 1. Cease and- desist from : (a) Discouraging membership in United Electrical , Radio and, Machine Work- ers of America, CIO, or any other labor organization of its employees by dis- charging or refusing to reinstate any of its employees or by discriminating in any other manner in regard to their hire and tenure of employment , or any term or cdridition of employment ; (b) Refusing to bargain collectively with United Electrical , Radio and Ma- chine Workers of America, CIO, as the exclusive representative of all produc- tion and maintenance employees employed by Kelco Corporation at its Balti- KELCO CORPORATION 797 more plant, but excluding all engineers, draftsmen, salesmen, all clerical em- ployees, and all supervisory employees with authority to hire, promote, discipline, or otherwise effect changes in the status of employees or effectively recommend such action ; (c) In any other manner interfering with, restraining, or coercing its em- ployee's in the exercise of the rights to self-organization, to form, join, or assist United Electrical, Radio and Machine Workers of America, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : (a) Offer to Marvin Baseman, James Stephen Bowen, Pat Compello, Raymond Frankell, George E. Fick, Raymond A. Fronckowski, Walter Hasenei, Harry F. Hecker, Marion A. Kolb, William E. MacMillan, William C. Marvell, Edwin J. Mooney, Nelson W. Neal, William H. Rixham, Harold W. Ruth, James E. Rut- ledge, Richard Sebeck, W. M. Stratton, Charles J. Sturgill, Robert T. Zellers, Joseph E. Ziemlak and Milton A. Popiolek, immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights. and privileges, discharging if necessary all employees hired since October 15, 1946; (b) Make whole Marvin Baseman, James Stephen Bowen, Pat Compello, Raymond Frankell, George E. Fick, Raymond A. Fronckowski, Walter Hasenei, Harry F. Hecker, Marion A. Kolb, William B. MacMillan, William 0. Marvell, Edwin J. Mooney, Nelson W. Neal, William H. Rixham, Harold W. Ruth, James E. Rutledge, Richard Sebeck, W. M. Stratton, Charles J. Sturgill, Robert T. Zellers, Joseph E. Ziemlak and Milton A. Popiolek, for any loss of pay each may have suffered by reason of the respondent's discrimination against him by pay- ment to each of them of a sum of money equal to the amount which he normally would have earned as wages from the date of his discharge to the date of the respondent's offer of reinstatement, less his net earnings during said period ; (c) Upon request reinstate Emmanuel Smuckler to his former or substantially equivalent position without prejudice to his seniority and other rights and privileges upon presentation of an affidavit from a duly licensed physician that such reinstatement will not injuriously affect his health and if the respondent fails to reinstate Emmanuel Smuckler within 5 days after such request and presentation of such proof, then to make him whole for any loss of,earnings which he may incur by the respondent's failure to reinstate him ; (d) Upon request, bargain collectively with United Electrical, Radio and Machine Workers of America, CIO, as the exclusive representative of all its employees in the aforesaid appropriate unit, and if an understanding is reached, embody such understanding in a signed agreement ; (e) Post at its plant in Baltimore, Maryland, at the time of the reinstate- ment of the individuals listed above, or any of them, copies of the notice attached to the Intermediate Report herein narked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Fifth Region, shall, after being signed by the respondent's representative, be posted by the respondent, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material ; 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (f) Notify the Regional Director for the Fifth Region in writing, within ten (10) days from the date of the receipt of this Intermediate Report, what steps the respondent has taken to comply therewith. It is further recommended that unless on, or before ten (10) days from the receipt of this Intermediate Report, the respondent notifies said Regional Direc- tor in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondent to take action aforesaid. As provided in Section 203.39 of the Rules and Regulations of the National Labor Relations Board, Series 4, effective September 11, 1946, any party or counsel for the Board may, within fifteen (15) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.38 of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and four copies of-a brief in support thereof; and any party or counsel for the Board may, within the same period , file an original and four copies of a brief in support of the Intermediate Report. Immediately upon the filing of such statement of exceptions and/or briefs, the party or coun- sel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.65. As further provided in said Section 203.39, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10 ) days from the date of service of the order transferring the case to the Board. THOMAS S. WILSON, Trial Examiner. Dated March 21, 1947. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor' Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT in any manner interfere with, restrain, or coerce our em-' ployees in the exercise of their right to self-organization, to form labor organizations, to join or assist UNITED ELECTRICAL, RADIO AND MACHINE WORfi- ERS OF AMERICA, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. WE WILL oFFEa to the employees named below immediate and full rein- statement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the dis- crimination. KELCO CORPORATION 799 WE wi7 ,T. BARGAIN collectively upon request with the above -named union as the exclusive representative of all employees in the bargaining unit described- herein with respect to rates of pay, hours of employment or other conditions of employment, and if an understanding is reached , embody such under- standing in a signed agreement . The bargaining unit is: All production and maintenance employees employed by Kelco Corporation at its Baltimore plant, but excluding all engineers , draftsmen, salesmen, all clerical employees, and all supervisory employees with authority to hire, promote, discipline , or otherwise effect changes in the status of employees or effectively recommend such action. Marvin Baseman James Stephen Bowen Pat Compello Raymond Frankell George E. Fick Raymond A. Fronckowski Walter F. Hasenei Harry F. Hecker Marion A. Kolb William B. MacMillan William C. Marvell We will also reinstate upon request : Edwin J. Mooney Nelson W. Neal William H. Rixham Harold W. Ruth James E. Rutledge Richard Sebeck W. M. Stratton Charles J. Sturgill Robert T. Zellers Joseph E. Ziemlak Milton A. Popiolek Emmanuel Smuckler All our employees are free to become or remain members of the above-named union or any other labor organization . We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. Dated -------------------- KELCO CORPORATION, Employer. By ------------------------- (Representative ) ( Title) NOTE.-Any of the above-named employees presently serving in the armed forces of the United States will be offered full reinstatement upon application in accordance with the Selective Service Act after discharge from the armed forces. This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT upon charges against Trial Examiner Thomas S. Wilson. The hearing upon which this report is rendered was held under the Board's Order of July 2, 1947, to determine the issues of fact raised by Paragraph 11 of respondent's exceptions to the earlier Intermediate Report of Trial Examiner 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wilson in the above case , and the accompanying and answering affidavits relat- ing thereto. The exception read : "11. The prejudgment of the issues of the case as early as January 9, 1947 as disclosed by the Trial Examiner's statement to counsel for the defendant that `You haven't a chance to win this case before the Board and I'm going to see that you don't."' The charge was supported by affidavits of respondent 's President, Michael J. Kelly, and its counsel, Edward L. Rich, Jr., and denied in an answering affidavit by Examiner Wilson filed in response to the Board's Order of May 2, 1947, under leave of which respondent further answered with reiterating affidavits by Kelly and Rich, and additional affidavits by James J Kaehler, its Secretary and Plant Manager, and George W. Alt, its Shop Foreman. The order for this hearing ensued, an Examiner for this purpose being designated from outside the Board's staff, with the approval of the Civil Service Commission and the consent of the Securities and Exchange Commission , under authority of the Administrative Procedure Act of June 11, 1946. At the opening of the hearing respondent's counsel offered a series of motions and objections variously challenging the authority for the hearing , demanding a further specification of its purpose, and insisting that it comprehend the whole issue of prejudice and bias on the part of Examiner Wilson, as evidenced alleg- edly not only by the incident specified in Exception 11, but by the whole record of his rulings in the former hearing as specified in Exception 12. The Examiner held that the hearing was to be confined to the issues under Exception 11, as specified in the Board's Order of July 2, 1947, both because its purpose was clear upon its face, and since the record of the former hearing and of Examiner Wil- son's rulings therein were already before the Board for review of his Intermedi- ate Report thereon. An opportunity was afforded, however, on the first day of the hearing, to make application to the Board for further specification of its pur- pose, in response to which application the Board ordered that "the record made before , and the facts found by Hearing Examiner Tee- garden in accordance with the Board's Order of July 2, 1947, shall be part of the record in the above entitled proceeding and will be considered by the Board in connection with its consideration of the proceeding on its merits." Over objection of respondent 's counsel, a motion was granted for the sequestra- tion of witnesses. The sequence of events leading up to the charge is as follows : The former hearing was held in Baltimore, January 8 to 24, 1947, upon charges that respond- ent had been engaging in unfair labor practices in violation of the National Labor Relations Act. The episode and utterance upon which the charge of prejudice in Exception 11 is based , are alleged to have occurred during the noon recess on the second day of the hearing , January 9 . Respondent made no point or mention of it at the time, continued to participate in the hearing until its end, and on February 8 filed its request for proposed findings. Examiner Wilson's Intermediate Report was dated March 21, and on April 28, 1947, respondent filed its exceptions to this Report, citing therein •for the first time the alleged utter- ance of January 9. KELCO CORPORATION 801 A clear picture of the geographical setting will aid in understanding the evidence. It is mapped in Wilson Exhibit 4, and included in the large city map introduced as Respondent 's Exhibit 13. A copy of the former, including nota- tions added by the Examiner as to distances referred to in Mr . Wilson's testimony, is here incorporated. Except for scattered references to other locales, the region covered in the evidence, as indicated on the above map, comprises an area of about a dozen city blocks in the City of Baltimore , bounded by Gay and Calvert Streets on the east and west, and by Baltimore and Lombard Streets on the north and south. The Appraisers Stores Building , (where the hearing was held from January 8 to 17, when it moved to another location on Light Street ), stands at the southeast corner of this area, on the southeast corner of Lombard and Gay Streets, with its entrance on Gay Street , fifty feet south of the building corner. The Emerson Hotel, where Examiner Wilson stayed during the hearing , stands at the diag- onally opposite corner of the area, on the northwest corner of Baltimore and Calvert. Intervening thoroughfares between Baltimore and Lombard , parallel to Gay and Calvert, are ( reading west from Gay) Custom House Avenue (a one lane passageway ), Commerce Street, and South Street ; while Cheapside (as shown on Resp. Ex. 13, though not on Wilson Ex. 4) lies between South and Calvert, running from Lombard north one block to Water Street only . At right angle to these, and parallel to Baltimore and Lombard , Redwood Street runs east from Calvert one block only to South Street , while Water Street runs east from Calvert to Gay Street with a slight jog in the north at South Street. Light Street parallels Calvert one principal block to the west of the above described quadrangle (beyond the area shown on Wilson Ex. 4). 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I m A c o f2 Z C.AL.VEt T In A rl^ "7, Am0 O 00 Sou T H COMMERCE N '1 COSroM HWSE AVE. CvsroM 14005E GAY sr. AVE i3 C A z M Wilson Exhibit 4. KELCO CORPORATION 803 Diagonally across the street intersection from the Appraisers Stores Build- ing, the United States Customs House fills the whole block from Lombard to Water Streets, on the west side of Gay Street, extending back, with its adjacent parking area, to Custom House Avenue on the west . Diagonally across from the Emerson Hotel, at the northwest corner of the above described quadrangle, the Mercantile Trust Building occupies the southeast corner of Calvert and Baltimore, with its entrance on Calvert , housing the offices of respondent's counsel, Mr. Lewin. Approximate distances in feet, noted in evidence in the course of the hearing J Tr. 787-97), are : From the entrance of Appraisers Stores Building north to corner of the building and of the intersection----------------------------- 50 ft. Across sidewalk from above building corner to curb on Lombard St__ 9 ft. Across Lombard St. at above corner, from curb to curb ------------ 44 ft. Across Gay St. at above corner, curb to curb ----------------------- 39' 5" Lombard to Water St., along front of Customs House- ------------- 254 ft. Gay to Commerce Sts-------------------------------------------- 350 ft. Commerce to South Sts------------------------------------------ 160 ft. South to Calvert Sts--------------------------------------------- 350 ft. From entrance of Mercantile Trust Building south to corner of Red- wood and Calvert--------------------------------------------- 92 ft. The testimony of respondent's witnesses and that of Examiner Wilson are in direct conflict . According to the former : After the adjournment for lunch on January 9 , Mr. Rich (one of respondent's counsel ) and Examiner Wilson, find- ing themselves together , among a group of others from the hearing, while waiting for the downward elevator , struck up a conversation , which they con- tinued on reaching the ground floor and passing out the corridor and through the revolving doors onto the street . There Mr. Kelly ( respondent's President) joined them, and the three of them moved north on Gay Street from the entrance of the Appraisers Store Building to the southeast corner of Lombard and Gay Streets, Messrs. Rich and Wilson discussing the while various questions that had arisen in the course of the morning's hearing. On reaching the curb to cross Lombard Street, they hesitated; whereupon Mr. Wilson suddenly asked, "You expect to beat the Board in this case ?", and in reply to Mr. Rich's affirma- tion that they did, further declared , "You don't have a chance to win this case before the Board, and I'm going to see that you don't. " Mr. Rich replied to the effect that a Congressional investigation was then in progress which they hoped would result in more consideration and justice by the Board toward industry than had in the past been apparent in its decisions ; and first Mr. Kelly, and shortly Mr . Rich left Mr. Wilson , proceeding westward across Gay Street and along the south side of Lombard until they joined Messrs. Lewin ( another of respondent's counsel), Kaehler (its Secretary and Plant Manager ), and Alt (its Plant Foreman ), who had started out from the building ahead of them, crossed over Gay Street at the corner and proceeded west on the southside of Lombard Street. On the return from lunch the same day, ( still according to respondent's witnesses ), Mr. Rich overtook Mr. Wilson , walking down Calvert Street, and they proceeded to discuss mutual friends of theirs in Oregon ( the Martin family), as they returned together to the hearing. At the end of the afternoon session, according to the same witnesses , either on that or the next day, Mr . Rich and Mr. Wilson walked together westward on 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the south side of Lombard Street to Calvert Street , arguing and gesticulating heatedly over questions that had arisen in the course of the hearing. On at least five other occasions , according to these witnesses , Mr. Rich fell in with Mr. Wilson during recesses in the hearing , either in the corridor spaces outside the hearing room or elsewhere , and engaged in conversation regarding questions in the case. In his own testimony , on the other hand, Mr. Wilson declares that he regularly used Gay and Baltimore Streets, not Lombard-Calvert, going and coming between the Appraisers Stores Building , where the hearing was held, and the Emerson Hotel , at the corner of Baltimore and Calvert Streets, where he stayed during the hearing; that he had never used or been on Calvert Street during the bearing ; and that he had never used or been on Lombard Street except on two occasions, the first after lunch on Monday, January 13, when he fell in with a mixed group of persons in attendance on the hearing . while walking east on Baltimore, which group, by a route he does not remember, worked its way over to Lombard and over the last block of that street to Gay Street. The second such occasion was on Monday , January 20th, when the hearing moved to another location on Light Street west of Calvert , and he and the official reporter were directed to walk, and did walk together west on Lombard to Light Street to reach it. Mr. Wilson further testified that the first he became aware of Mr. Rich's company during the noon recess of January 9 or 10, whichever it was , was when Mr. Rich overtook him as he left the revolving doors of the Appraisers Stores Building and started to walk north on Gay Street ; that they immediately fell into a discussion of their mutual friends in the Martin family in Oregon, which continued all the way as they proceeded to the southeast corner of Gay and Lombard, turned right there because of a traffic light against them and walked west across Gay Street to the southwest corner, waited there for the traffic light, then continued up the west side of Gay Street to Water Street , where Mr. Rich left him to join other of respondent 's personnel, wanting a little to the west on the north side of Water Street ; that during this walk he and Mr. Rich discussed the Martin family and nothing else ; though they later made repeated references to that family in the course of their casual conversations throughout the hearing; that he never walked either way on Lombard street with Mr. Rich unless he happened to be a member of the general group returning on Monday , the 13th, as to which Mr. Wilson did not remember ; that he never engaged in heated argu- ment or discussion or gesticulation with Mr. Rich , discussed the case or ques- tions in it with him in any other way , either during recesses in the building or on the street or otherwise , nor ever spoke to Mr . Rich about the case other than in the course of the proceeding itself, except for three instances : (i) On the first day, before the opening of the hearing , when they discussed procedure with regard to subpoenas desired by Mr. Rich ; (2) During one recess period, when Mr. Rich asked him for the citation for a ruling he had made during the hearing , and he gave him the name of the case cited, nothing more. (3) Several occasions toward the end of the hearing, after its removal to the District Court building on Light Street , when Mr Wilson reminded respond- ent's counsel , Mr. Rich and Mr Lewin, to complete the preparation and checking of certain exhibits that had been arranged for, and that must be gotten in before the hearing could be closed. KELCO CORPORATION 805 With this conflict in testimony , it becomes necessary to examine the various factors affecting credibility The conflict involves four principal occasions: (1) The noon recess of January 9 (or 10), going to lunch, in which Examiner Wilson's prejudicial utterance is said to have occurred, but in which he claims to have discussed only the Martin family. (2) The same recess, returning from lunch , when Mr. Rich claims he overtook Mr. Wilson coming down Calvert Street and discussed the Martin family; whereas Mr. Wilson claims he neither came down Calvert Street nor with Mr. Rich, but returned to the hearing via Baltimore and Gay Streets. (3) The evening of the same day, when Mr. Rich claims that he and Mr. Wilson walked west together on the south side of Lombard Street from Gay to Calvert, arguing and gesticulating heatedly with one another about the case; whereas Mr. Wilson claims he never walked west on Lombard until the last week of the hearing, that he never discussed anything heatedly with Mr. Rich, nor discussed the case with him in any fashion. (4) The five or more occasions when Mr Rich claims to have fallen in with Mr. Wilson alone during recesses and discussed various aspects of the case and the fairness of the latter 's rulings in it; whereas Mr. Wilson , while agreeing that the two did sometimes fall into casual discourse on such occasions , denies that they ever referred to the case, with the exceptions described above. On the first of the above occasions Mr. Rich and Mr. Kelly, and on the other three Mr. Rich alone, were the only witnesses to the alleged conversations with Mr Wilson. The rest of respondent's witnesses testify only to what Mr. Rich or Mr Kelly told them Mr. Wilson said, or to having seen them from a distance in the situations claimed. Mr. Rich has been adviser to respondent in labor matters, or otherwise "involved" with the company , as he stated it, for a number of years, and within the past year has gotten admitted to the bar and become also one of its counsel. Mr. Kelly is its President and virtual owner, owning practically all of its capital stock Respondent's other witnesses are all similarly allied in interest, Mr. Kaehler as respondent's Secretary and Plant Manager, Mr. Alt as its Plant Foreman, and Mr. Clark as an associate in Mr. Lewin 's law firm. It further appears that in his Intermediate Report, in reviewing the evidence with regard to the question of conflicting testimony there presented , Examiner Wilson had held unfavorably to respondent 's witnesses , Kelly, Kaehler, and Alt, the same who testified in the present hearing. The situation thus presented is one in which parties in interest to a decision against them accuse the deciding authority of prejudice on the basis of happen- ings which allegedly came to their attention early in the course of the hearing culminating in the decision , of which they said nothing at the time, and to which they claim the only witnesses were themselves and the accused. In the nature of the case, the self-interest implicit in such testimony subjects it to severe scrutiny for credibility , else the integrity of the judicial process is in constant jeopardy in its very exercise. The nature and extent of the above interest in the present case is indeed elaborated in the testimony of Mr. Rich, and apparent in the positions taken by respondent's counsel , Mr. Lewin. In presenting his series of motions at the opening of the hearing, Mr. Lewin made it clear that he is not interested in the charge against Mr. Wilson as indicating any unfitness or disqualification to sit or act as Examiner. He insisted , in fact, upon a statement by the Board as to the use intended for the results of this hearing, with a view to refusing 809095-49-vol. 79-52 806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to participate in it if such were its purpose. His only interest in it was for the effect it might have with the Board in dealing with Examiner Wilson's Intermediate Report, either to disregard it accordingly in the Board's decision, or to set it aside and order a new hearing, in which, since respondent does not wish him disqualified , Mr. Wilson might presumably be assigned to sit again. Similarly, Mr. Rich , in his cross-examination, persistently refused a direct answer to questions as to whether Mr. Wilson 's utterance indicated in fact, under the surrounding circumstances, that he had prejudged the case. He insisted, on the other hand, that, while it indicated a disposition against them at the time , they felt he might change and in fact would change on hearing the remainder of their evidence , that their situation did in fact seem to get better as the case progressed , then wavered "up and down ," and that he did not con- sider that there was a clear case of bias until he got the Intermediate Report. Mr. Rich, indeed, seemed to have a curious conception of the relation between examiners and parties to a hearing. He likened it to that between employers and employees as they sit down at the bargaining table, and took the Examiner's alleged utterance no more seriously than he would an employer 's announcement at the outset of such a negotiation that he would not grant a closed shop. "That is not an unfair labor practice as you know, because he may change his mind before the negotiations are over." (Tr. 158.) And when he found that Mr. Wilson knew his friends , the Martins, his hopes rose. Personal influence on his side seemed unobjectionable. He made no point of the alleged utterance at the time , he said, because he felt their position would be no better were another examiner assigned to hear the case. He would likely be as bad or worse, first because he might try to vindicate the displaced examiner, second , because he thought the Board, its examiners, and its employees generally were all "tarred with the same stick," by which, however, when pressed to explain it on cross-examination, he finally said he meant only that they were trying rigorously to follow the law : "I have not accused them of breaking the law. I think-frankly, I have never said the Board has not done a good job in what it was supposed to do. * * * The law required them to stick to that side of the fence. Nov, the new law says you must be down the middle, you must protect both sides. They have a dual function now. * * * It is my firm impression that they will stick to the new law just as they did to the old, and I expect to see them do a very good job." (Tr. 204-5, 213-4) The questions of fact before us include not alone that as to whether Mr. Wilson uttered the words as charged. They include also the question as to what was in fact their significance under the circumstances in which they were reportedly uttered. Mr. Rich was the principal witness on the latter question . So far as Mr. Kelly, the only other witness to the alleged utterance , touched upon it, he testi- fied that while it gave him concern, and indicated at that time that Mr. Wilson had made up his mind regardless of Mr. Rich's conviction that he had a good .case, he never entertained a thought of wanting him out of the case. Upon such evidence we cannot find that the utterance , assuming it to have been made as alleged, indicated that Mr. Wilson had closed his mind to the evidence or to the duty of impartial judgment upon it. However indiscreet and injudicious it might have been from Mr. Wilson 's standpoint, as Mr. Rich and Mr. Kelly explain the impression it made upon them at the time and their reaction to it, it is not evidence that Mr. Wilson had prejudged the case . This is in harmony with the general law to the effect that only a personal bias or prejudice for or KELCO CORPORATION 807 against a party to the cause is disqualifying in a judge, not an impersonal bent .of mind arising from his cultural or social background , associations or experi- ence, nor a predilection or aversion toward a particular type of litigation, nor toward particular schools of social, political or other philosophy that may by implication be under attack or defense in the cause , nor a particular liking or dislike toward particular counsel in the case, nor even a prejudgment of the merits on the basis of previous stages in the litigation . In 'e Beecher (DC- Wash. ) 50 F. Supp. 530. Thus it was held not disqualifying that, in advance of hearing, the judge in a bankruptcy suit told the trustee that he was going to deny the petition of a bondholders' protective committee (In re Lisinan ( CCA-2 ) 89 F. (2d ) 898) ; or that the judge had written his opinion before assignment of the case for trial, without the master's report or the evidence , and before the arguments of counsel (Henry v. Speer, ( CCA-5 ) 201 Fed. 869 ) ; or that the judge apologized to the jury for the conduct of one of the counsel and told him that his conduct before the court was not such as to entitle him to any great consideration ( People v. Emmet, 123 Calif. App. 678; 12 P. (2d) 92; held not reversible error) ; or that the judge was unfriendly to appellant's attorney and on intimate terms with opposing counsel (May v. May, 150 Ky. 522; 150 S W. 685 ) ; or that the court told counsel ( in this case Government counsel ) in the course of the trial and arguments that they were trying to cover up evidence relating to some of the issues , attempting to put something misleading into the record, that an unfair advantage had been taken of one of the land-owner petitioners , and told one of the attorneys in the corridor outside the courtroom "that he was a pettifogger and had been pettifogging for two hours and a half" ( U. S. v.16,000 Acres of Land, ( DC-Kan. ) 49 F. Supp. 645) ; or that the judge "has prejudged the guilt or innocence of the defendant, Jack Young, and has publicly declared that said Jack Young is a bootlegger and criminal , and has threatened to wear the county jail out with the said Jack Young if the said Jack Young did not cease . . . violation of the prohibition laws," and warned and cautioned his prospective bondsman not to sign his bond, stating "that the said Jack Young was one of the biggest criminals and bootleggers in Pittsburg County," ( Young v. State , ( Okla. Cr . App.) 74 Okla. Cr. 64; 123 P. (2d) 294 ), in which the recused judge did not deny the opinions charged, but stated that notwithstanding them he could and would give the defendant a fair and im- partial trial ) ; or that the judge's son , also a lawyer , had represented defendant in another matter and had a quarrel with him over his fee (Pruitt v. State, 62 •Okla. Cr. 38; 70 P. ( 2d) 130) or that the judge was biased and prejudiced against defendant as the result of a previous trial before him, and against all defendants charged with violation of the liquor laws ( Craven v. U. S., (CCA-1) 22 F. (2d) 605) ; or that the judge was a director or trustee of another bank nearby the one which defendant was accused of robbing and therefore prejudiced against defendant (Price v. Johnson, ( CCA-9 ) 125 F. (2d) 806). Most of the federal cases above cited were decided under Section 21 of the Judicial Code ( 28 U. S . Code, Sec. 25), which provides: "Whenever a party to any action or proceeding , civil or criminal, shall make and file an affidavit that the judge before whom the action or pro- ceeding is to be tried or heard has a personal bias or prejudice either against him or in favor of any opposite party to the suit, such judge shall proceed no further therein , but another judge shall be designated in the manner prescribed in section 24 of this title, or chosen in the manner prescribed in section 27 of this title, to hear such matter. Every such affidavit shall state 8©8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the facts and the reasons for the belief that such bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term of the court, or good cause shall be shown for the failure to file it within such time. No party shall be entitled in any case to file more than one such affi- davit ; and no such affidavit shall be filed unless accompanied by a certificate of counsel of record that such affidavit and application are made in good faith. The same proceedings shall be had when the presiding judge shall file with the clerk of the court a certificate that he deems himself unable for any reason to li^^,side with absolute impartiality in the pending suit or action." (Act of Mai 3, 1911, c. 231, Sec 21, 36 Stat. 1090). The Supreme Court, in construing this statute in Ex parte American Steel Barrel Co , (1913) 230 U. S 35, 39; 57 L. ed. 1379, said : "The basis of the disqualification is that `personal bias or prejudice' exists, by reason of which the judge is unable to impartially exercise his functions in the particular case. It is a provision obviously not applicable save in those rare instances in which the affiant is able to state facts which tend to show not merely adverse rulings already made, which may be right or wrong, but facts and reasons which tend to show personal bias or prejudice. It was never intended to enable a discontented litigant to oust a judge because of adverse rulings made, for such rulings are reviewable otherwise, but to prevent his future action in the pending cause. Neither was it intended to paralyze the action of a judge who has heard the case or a question in it, by the interposition of a motion to disqualify him be- tween a hearing and a determination of the matter heard. This is the plain meaning of the requirement that the affidavit shall be filed not less than ten days before the beginning of the term." (Cited and quoted in Berger v. U. S., (1921) 255 U. S. 22, 31; 65 L. ed. 481.) Neither respondent nor its witnesses suggest anything in the nature of per- sonal animus or feeling in the words attributed to Examiner Wilson, nor in the heated argument said to have occurred between him and Mr. Rich as they walked west on Lombard Street at the end of one day's sessions, nor in other alleged discussions of the case between the two during hearing recesses. Their rela- tions were friendly, they all say, and continued so after the alleged -utterance; and in the casual recess discussions, as described by Mr. Rich, the only one claiming to have heard them, Mr. Wilson evinced a solicitude to be fair, and Mr. Rich thought that at times he had been unusually so, at others not as much so as lie should have been-quite a characteristic specimen of the results likely to be achieved by anyone who strives for rectitute of conduct. Hence, any "heat" in their alleged discussions found no apparent basis in personal feeling by either toward the other ; it was at most the ardor of ideas, and concededly only upon questions that arose in the proceedings. These proceedings, and the introduc- tion of evidence, had already been in progress a day and a half more; and if Examiner Wilson was so imprudent as to express at that juncture a con- viction that respondent hadn't a chance to win, there is still nothing to suggest that that conviction arose other than from impressions received from the evi- dence and the proceedings so far had-whether erroneous or not is immaterial, since the possibility of error is implicit in the judicial function. And if he added the alleged announcement of his mission to see that they didn't win-also con- cededly imprudent, if a fact-there is still nothing to suggest that it represented other than a determination of duty to give effect to the demands of justice KELCO CORPORATION 809 according to those convictions. In neither case is there anything to show that that conviction and determination were foreclosed to revision in the light of evi- dence yet to be received ; and Mr. Rich's course of action, and his testimony in explanation of it, make it clear that he so understood them. As the Supreme Court said in United States v. Morgan (1941) 313 U. S. 409, 421, in which the Secretary of Agriculture had been charged with bias as to further proceedings in the case before him on the ,basis of his vigorous criticism of a decision of that Court with respect to one chapter of those proceedings, "But, intrinsically, the letter [to the "New York Times," in which he had expressed his criticism] did not require the Secretary's dignified denial of bias. That he not merely held but expressed strong views on matters be- lieved by him to have been in issue, did not unfit him for exercising his duty in subsequent proceedings ordered by this Court. As well might it be argued that the judges below who had three times heard this case, had dis- qualifying convictions. In publicly criticising this Court's opinion the Sec- retary merely indulged in a practice familiar in the long practice of Anglo- American litigation, whereby unsuccessful litigants and lawyers give vent to their disappointment in tavern and press. Cabinet officers charged by Congress with adjudicatory functions are not assumed to be flabby creatures any more than judges are. Both may have an underlying philosophy in approaching a specific case. But both are assumed to be men of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances." There remains to determine whether the utterances and conduct charged to Examiner Wilson are true as alleged. In the nature of the case, Mr. Wilson's possible defense against them, so far as direct evidence is concerned, is limited to his own denial, since according to the terms of the accusation, only he and the accusers were present at the time of the alleged events. One cannot pro- duce witnesses to something that did not happen when they were not there. We must accordingly turn to a comparative analysis of his own testimony and of that of his accusers, and of the harmony of each within itself. Except for the general facts of the hearing itself, its dates, location, parties to it, etc., and the geography of the surrounding locale, there are but few points of agreement between Mr. Wilson and the witnesses against him. They agree that Mr. Rich and Mr. Wilson walked together from near the door of the Ap- praisers Stores Building to the southeast corner of Lombard and Gay; they disagree as to what they talked about and where they went from there They agree that at some time they talked about their mutual friends of the Martin family ; they disagree as to when they did so, though they agree that they did so on a number of occasions. They agree that they sometimes chatted during hear- ing recesses; they disagree as to what they talked about. And they disagree on practically everything else. To take first the incident before lunch during the noon recess of January 9 when Mr. Wilson is claimed to have uttered the prejudicial words: According to Mr. Rich, as he and Mr. Wilson walked from the door of the Appraiser's Stores Building north a distance of 50 feet to the corner, they discussed questions that had arisen in.the hearing : "The conversation which was engaged in between Mr. Wilson and myself with Mr. Michael J. Kelly being present, as we proceeded from ,the door,of the Appraisers Store Building on the east side of Gay Street, during the 810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD noon recess on January 9, 1947, as we proceeded north on Gay Street to the corner of Lombard and Gay Street dealt with the matter pertaining to the things that came up in the hearing at the morning session. And to the general fact that during that morning hearing Mr. Lewin, counsel for the defendant, Kelco Corporation, had been raising as defense several points, one of which had to do with whether the former employees of the defendant corporation were members of the union, and as to whether under such circumstances, as he set forth, the union was a proper party to the proceeding, and also regarding. the submission of the bylaws of the union in evidence. "Now, in the course of my conversation-Mr. Wilson's conversation with me-we both made conversation-I was contending that the defendants could take up any defense he wanted to, whether it was a good defense or a bad defense. "The Board could do what they wanted with it, but he should be permitted to make it. As we got to the corner of Gay Street and Lombard Street which is the southeast corner of the intersection, Mr. Wilson, Mr. Kelly and IC stopped for a moment, hesitated, and were continuing our talk." "Mr. Wilson made the statement ; `You expect to beat the Board in this case?' "It was a question to me. I said yes, I thought we should win this case before the Board, or words to that effect. Mr. Wilson immediately replied, `You don't have a chance to win this before the Board, and I'm going to see that you don't,' or words to that effect. I then proceeded to tell Mr. Wilson that Congress was then investigating the Board and I felt sure they were going to do something about it and I was going to do all I could to assist them' to correct the situation whereby we could get a little more justice and con- sideration than was commonly felt among industry that had been in the past handed out by the overall decisions of the Board." (Tr. 90-92). This Mr. Rich in substance reaffirmed on cross examination (Tr. 315-319), in response to a specific question, twice elaborated, to relate the conversation from the point where Mr. Kelly joined up with Mr. Rich and Mr. Wilson outside, the revolving doors, until they reached the corner of the street. At the end, when asked to reaffirm that all this took place within the 60 feet distance trav- ersed, upon an objection by Mr. Lewin, Mr. Rich veered and insisted that he had been covering the whole time beginning with the wait for the elevator on the seventh floor. We think the record is clear that Mr. Rich had intended to relate the conversa- tion from the revolving doors to the corner, and we agree that it was a long con- versation to crowd into that time and distance. The distance was paced off at Mr. Wilson's normal gait in 17 seconds (Tr. 795-6), which seems leisurely enough, since at that rate it would take 25 minutes to walk a mile. But in that time, at the rate of 200 words per minute-which would be rapid even for public speak- ing-there would be time for the utterance of but 56 words, equivalent to about four or five lines of standard reported transcript. According to Mr. Rich, as the three of them started three abreast up Gay Street from the building entrance, Messrs Kelly, Kaehler and Alt were ahead of them. At first he said they were considerably ahead and had crossed Gay Street at Lombard and proceeded west on the south side of Lombard (T 87). Later he said that at the start they were a little ahead, perhaps a couple of paces, but they were hurrying and the distance increased. (Tr. 312.) But after KELCO CORPORATION 811 he joined them somewhere on Lombard Street, they "were walking along at a• normal rate of speed continuously." (Tr. 100.) According to Mr. Kaehler, however, "the five of us" (Kelly, Rich, Lewin, Alt and himself) assembled together for lunch that noon in front of the building and proceeded north to the corner, where he, Lewin and Alt left Kelly and Rich standing on the corner and crossed west across Gay Street, paused there and looked back and then saw Mr. Wilson with Mr. Rich on the other corner, waited• half a minute to a minute for them to catch up or at least start after them, until the light changed, then proceeded on west on Lombard, though he doesn't remem- ber whether Kelly and Rich came on right away or not. (Tr. 606-9.) According to Mr. Alt, they could not both have done so, for when Mr. Kelly caught up with them, he (Alt) saw Rich and Wilson still standing on the corner talking. (Tr. 633.) When and where did Mr. Rich leave Mr. Wilson? He says he left him at the end of his exclamation about the Congressional investigation and his hopes for more justice from the Board. First he says this was on the southwest corner of Gay and Lombard, where Mr. Kelly had left them at the beginning of that speech, departing westward across Gay Street (Tr. 94), and that Mr. Wilson went on up Gay Street (Tr. 109). Next day he said he didn't remember where he left him, or whether they crossed the street together, or whether he finished his exclamation while they were crossing the street, but thought it was before cross- ing the street, that it was only a few sentences and followed immediately upon Mr. Wilson's words, without any hesitation. (Tr. 327-9.) Going west on Lombard Street, according to Mr. Rich and Mr. Kelly, Mr. Lewin was walking slightly ahead of Kaehler and Alt as Mr. Rich caught up with them-Mr. Rich said because he was hurrying to keep an appointment (Tr. 102), Mr. Kelly said because he was preoccupied and seemed to "want to get going" (Tr. 527) ; yet he did not gain on them during the remaining three or four blocks to his office building, as he "walked up that far" with them, remaining three or four feet ahead of them all the way, and congregated with them there a moment before he said goodbye and went in the building. (Tr. 102, 528, 571, 577, 592, 612-3, 630, 637, 662, 665.) Either he was not in such a hurry as claimed, or they were walking so fast he could not gain on them. Mr. Lewin was careful to bring out from each of his witnesses on direct examination that he was removed from the group when Mr. Kelly and Mr. Rich told them of Mr. Wilson's utterance, and as they continued to discuss it on up to Mr. Lewin's office; and the witnesses' seized frequent occasion to reiterate this, both on direct and cross-examinations. According to Mr. Kelly, he and Kaehler and Alt were walking three abreast on Lombard Street when Rich joined them and told them about Wilson, and then continued to walk with them four abreast. (Tr. 572, 577.) According to Mr. Kaehler, however, they were walking with Mr. Lewin in front, then Alt and Kaehler together, then Kelly and Rich. Mr. Rich caught up with them, according to his own testimony, "towards the extreme western end of that strip of pavement on Lombard Street." (Tr. 94-5.) This strip of pavement is not further identified, but we assume from Wilson Exhibits 4 and 7, and Respondent's Exhibit 13, that it refers to the distinctive stretch of Lombard Street where it widens into Exchange Place, beginning about Custom House Avenue and extending westward to South Street, and that Mr. Rich accordingly was indicating a point a little to the east of South Street. Mr. Kelly says Mr. Rich caught up with them "somewhere east of South Street" (Tr. 525), or within half a block later than he did himself (Tr. 570), which in turn he says he did toward the end of the first block westward on Lombard,' 812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or nearly to Commerce Street (Tr. 525). Kaehler and Alt place Kelly's catching* up with them at half-way to Commerce (Tr. 611, 632). Kaehler places Rich's overtaking them at Commerce and Lombard (Tr. 591), while Alt says it was a "little further up Lombard" than where Kelly had joined them. (Tr. 634.) The distances involved in the above movements, from the southeast corner of Gay and Lombard where Rich and Wilson are supposed to have stood for their final exchange, are as follows : Distances Total from Between S 91. Car, Gay points & Lombard Across Gay St to west Bldg. line______________________ 50 ft. 50 ft. Gay to Commerce Sts________________________________ 350 " 400 Across Commerce St_________________________________ *50" 450 " Commerce to South Sts_______________________________ 160 " 610 Across South St______________________________________ #60" 670 South to Calvert Sts__________________________________ 350 " 1020 *Estimated from Respondent's Exhibit 13. From where Rich and Wilson were seen then still standing, to the point on Lombard midway of the Gay-Commerce block where Kaehler and Alt claim Kelly caught up with them, it is accordingly 225 feet, while it is another 175 feet, or a total of 400 feet, through this block to Commerce Street. If Mr. Rich started immediately after Mr. Alt last saw him, in order to catch up with the others at Commerce Street, he would have to cover 400 feet while they were covering 175, or 2.28 times their distance, and accordingly at 2 28 times their speed. If they were using the leisurely sort of gait that Rich and Wilson used walking from the entrance to the corner (about 25 minutes to the mile), Mr. Rich would have had to walk at the rate of less than 11 minutes to the mile,-faster than Army "double time" (165 33-inch paces per minute). If, as Mr. Rich claims, the others were hurrying-if, for example, they were walking 50% faster than he and Mr. Wilson (about 16 minutes to the mile), a brisk gait at which it might well be difficult for one of Mr. Lewin's stature to gain on them, it then would re- quire a pace of 7 minutes to the mile for Mr. Rich to catch up with them- sprinting speed. Mr. Kelly places the point of his catching up further west, nearer Commerce Street, while Mr. Rich places that of his catching up also further west, near South Street, with the two still about half a block apart or about the length of the short block, Commerce to South Streets. The further west the meetings occurred without correspondingly increasing the interval between them, the faster Mr. Rich would have to run to catch up. Where could he, then, have caught up, using walking gaits within practical range? Assuming first that the others were using Mr. Wilson's gait, and that Mr. Rich walked a quarter faster, starting immediately after Mr. Alt last saw him, he would have to cover five times the initial distance then between them (225 ft ), or 1125 feet before reaching them, which, allowing an additional 60 feet for crossing Lombard Street, would place the meeting about 45 feet around the corner on Calvert Street, north of Lombard. If walking a half faster, he would reach them after 675 feet, or slightly west of South Street. Whatever the gait at which they were walking, so long as Mr. Rich increased their gait by these fractions, the results would .be the same ; but beyond a gait for them a quarter faster than Mr. Wilson's, and a quarter faster than that for 11Mr ftich, the resulting gaits for the latter would quickly become impractical. KELCO CORPORATION 813 If, as Mr. Kelly claims, he overtook them nearly to Commerce, or around 350 feet west of where Rich and Wilson were still standing, then Mr. Rich, at a quarter faster, could not overtake them short of 1750 feet, or 670 feet north of the corner of Lombard and Calvert, which is practically at the corner of Balti- more ; while at a half faster he might reach them in 1050 feet, or while they, were crossing Lombard at Calvert. As to the second incident, the return from lunch one day early in the hearing, and during it the alleged discussion of the Martin family : the witnesses to it are Rich, Kaehler and Alt, as Mr. Kelly did not return with them. The three claim to have overtaken Mr. Wilson walking south on Calvert, whereupon he and Mr. Rich paired off in front with Kaehler and Alt following them. Kaehler overheard none of their conversation. (Tr. 596.) Alt heard only "something in regard to General Martin and his daughters." (Tr. 639.) Rich is the only witness to the conversation as a whole, and he does not remember when it was, other than "in the early part of the hearing" (Tr. 111 ) The other two, one of whom heard nothing, and the other only a fragmentary allusion, of the conver- sation, are quite definite that it was on the same day as the first incident. The incident has no significance except as it addresses Mr. Wilson's general credibility. It is consistent with his and Mr. Rich's agreement that they discussed the Martin family on numerous occasions, and accordingly with Mr. Wilson's claim that that was the sole topic before lunch on the 9tb, except as Mr. Rich claims it to be the first such occasion, as to which it rests solely on his testi- mony. It 'suggests an exception to Mr. Wilson's impression that he never used Calvert Street, though consistent with his memory that on one occasion he did end up his return from lunch via Lombard Street, in the general company of a number of others, though unable to remember by what route he reached Lombard. In no case does it suggest anything in the nature of bias or prejudice on Mr. Wilson's part. As to the third incident, Mr. Rich's alleged walk with Mr. Wilson west on Lombard' to Calvert Street at the end of the day, during which they argued and gesticulated heatedly over questions that had arisen in the case, and were seen from the other side of the street by Messrs. Lewin, Kelly, Kaehler and Alt, walking in the same direction. Again, the content of the conversation rests solely on Mr. Rich's testimony. So far as concerns the others across the street, the evidences of ardor which they beheld might have emanated as well from mutual though dissonant enthusiasms over some topic of art, sports, or the foreign situation. Its only possible Sig- nificance, so far as supported by their testimony, lies again in the extent to which' it contradicts Mr. Wilson's claim that he never used the Lombard-Calvert Street route to and from his hotel. In that respect, it leaves some curious questions une)tplained. Mr. Rich, who remembers so distinctly that this heated discussion continued all the way down the' south side of Lombard Street to Calvert Street, and that there he left Mr. Wilson "and proceeded across the street going north on Calvert Street and caught up with' Mr. Lewin and Mr. Kelly and Mr. Kaehler' and Mr. Alt," (Tr. 117, 121), has at that point a blank memory as to what became of Mr. Wilson, not only as to where he may have been bound-which he may well not have known-but as to what direction he took, whether continuing to the west, turning left to the south, or doubling back to the east He even denies memory as to whether Wilson turned north in the same direction as himself, which seems remarkable , as quitting another's company under such circumstances 814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would necessarily involve a studied lagging behind or speeding'ahead that in either case would risk an embarrassing appearance of discourtesy. One would seem normally able to remember whether or not he did such a thing. So with the rest across the street: Although their attention was apparently riveted by the spectacle of Rich's and Wilson's hands and arms "flying all around," and they continued to watch this spectacle all the way to Calvert Street, and there see the two part company, from that point none of them have any idea which way Mr. Wilson went. (Tr. 530-4, 596-9, 641-6.) Mr. Alt, though asserting that Rich and Wilson had parted company, and that Rich had then joined their group on Calvert Street, was not even sure whether or not Wilson had done so too. There is also a curious contradiction as to the identity of those who were watching from across Lombard Street. On eleven occasions in the testimony, the group is specifically referred to as consisting of Messrs. Lewin, Kelly, Kaehler and Alt : P. 117, by Mr. Rich : "Yes, I left him [Mr. Wilson] at Calvert Street . . . and caught up with Mr. Lewin and Mr. Kelly and Mr. Kaehler and Mr. Alt who were slightly ahead of me and had gone up on the other side of Lombard Street walking parallel . .. P. 121, by Mr. Rich : _ "I crossed the street and proceeded up Calvert Street and a short distance from the corner I joined Messrs. Lewin, Kelly, Kaehler and Alt." P. 122, by Mr. Rich : "I joined Messrs. Lewin, Kelly, Kaehler and Alt." P. 123, by Mr. Lewin, referring to the same incident : "Now, Mr. Rich, did anything particular happen then which recalls to your memory particularly that you did report to Messrs. Lewin, Kaehler, Kelly and Alt the fact that you had been discussing this case in your walk along-while you were walking with Mr. Wilson?" P. 416, by Mr. Rich, in response to a question as to how he happened to part with Mr. Wilson at Lombard and Calvert : "I knew that Mr. Lewin and Mr. Kelly, Mr. Kaehler and Mr. Alt, whom I was to join up with, were going up Calvert Street on the east side, north from Lombard." P. 530, by Mr. Kelly, to a question as to the evening recess incident : "Well, . . . that is the night I went along with Mr. Kaehler and Mr. Alt and Mr. Lewin and proceeded north on Gay Street .. . to the north side of Lombard and we proceeded west on Lombard " P. 533, by Mr. Lewin, questioning Mr. Kelly : "Now, do you remember where, if at any place along that route that night, Mr. Rich joined your group, consisting of-Messrs. Kaehler, Alt, Lewin and yourself?" "A. Yes. We proceeded west on Lombard Street and we turned north on Calvert Street." P. 597, by Mr. Kaehler, when asked what he observed on this evening occasion "Well, on that day, Mr. Lewin, Mr. Kelly, Mr. Alt and myself proceeded . to the northeast corner, and then turned west on Lombard." KELCO CORPORATION 815 P. 598, by Mr. Lewin, questioning Mr. Kaehler : "Did you and your group, consisting of Mr . Lewin, Mr. Kelly, Mr. Alt, yourself, continue to watch Mr . Rich and Mr Wilson as they walked along conversing in the manner which you describe?" "A. Yes, I observed that." Notwithstanding this express and repeated identification of the group, on the last day of the instant hearing, after Mr. Wilson's testimony denying that he had ever walked down Lombard Street with Mr. Rich, or argued or gesticulated with him on the street or anywhere else, or about the case or anything else, or ever used or been on Calvert or Lombard Street except for two stated occasions on Lombard, neither of which was compatible with the incident alleged, respondent produced as a witness a young associate in Mr. Lewin's law firm, a man six feet two inches in stature (Tr. 984), who testified that he attended most all of the Kelco hearings in the Appraisers Stores Building and the Post Office Building, that he usually left early at the noon recess to run errands for Mr. Lewin (Tr. 971-2), but usually left with Mr. Lewin and the rest of the Kelco group at the end of the day to help carry things back ( Tr. 9S6, 988-90), that he too was a member of the group on the north side of Lombard Street that watched Messrs. Rich and Wilson all the way to Calvert Street on the evening occasion in question. (Tr. 973-7.) How the rest of the group missed seeing him if he was there, or, if they saw him, ,why they so carefully concealed his presence in testifying, is unexplained. This ,witness also testified that he and Mr. Lewin followed Messrs. Rich and Wilson out the building doors and up to the south corner of Lombard, where the latter two crossed west on the south side of Lombard , that the other two, fol- lowed by Kelly, Kaehler and Alt, crossed to the north side and then west on Lom- lbard, ( which would place them about the width of Lombard Street, or some fifty feet, to the rear as compared with Rich and Wilson on the opposite side), that they proceeded thus to Calvert , that there Rich and Wilson crossed over Lom- ,bard ( whereas Rich claims he left Wilson on the south corner ), that the witness and Lewin turned right at their corner and the former "went on ahead,"-sug- gesting necessarily either that he "speeded up ahead," thus leaving the rest behind, bor which no reason is suggested , or that he proceeded at the same gait while the ,rest paused at the corner to wait for Rich (with or without Wilson ), in which case we again encounter the questions , what became of Mr. Wilson ; in what sdirectlon at least, did he depart ; why does no one remember ; and why the vagueness as to where Mr. Rich joined them? If, indeed, the incident happened as related in the testimony, ignoring for the moment its incongruities, it seems almost certain that Messrs. Rich and Wilson would have reached Calvert ahead of the group across the street, either because ,the latter walked to the rear, as testified by the last witness-and it would appear a bit grotesque for them to be craning their vision rearward watching the,other two all the way to Calvert, as would be necessary were the order reversed-or because in any case the group on the north side had a longer distance to cover, by some eighty feet, because of the "detour" the sidewalk takes on that side -around the widening of Lombard into Exchange Place (about 100 feet wide), between Custom House Avenue and South Street. ( See Resp. Ex. 13.) In such case Wilson and Rich would necessarily arrive at Calvert, and Wilson take off in his "unknown" direction , all in full view of the group across the street , and Rich -would cross Lombard to meet them "somewhere on Calvert Street" as they arrived at their corner. 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As to the fourth group of incidents, Mr Rich's casual meetings with Mr. Wilson during recesses in the corridors outside the hearing room : The only dispute is as to the content of the conversations. Mr. Wilson does not dispute that he fell in with and chatted briefly from time to time with Mr. Rich and various others on such occasions. The claim that they discussed or argued questions in the case rests solely on Mr. Rich's testimony. Mr. Wilson denies it. The others only saw them together, but heard nothing they said. (Tr. 112, 126-9, 271-4, 534, 600.) Mr Alt could not even remember seeing them. (Tr. 646-7.) The testimony of Examiner Wilson was direct, straightforward, cooperative on cross-examination, and consistent both within itself, with the physical facts and environment involved, and with the ordinary molds of human behavior applicable in the circumstances involved, and withstood all attempts to shake it on cross-examination. The record is devoid, both in testimony and in repre- sentations of counsel , of any suggestion of personal or material interest or other motive to lend color to any hypothesis that he might be prejudiced or biased against respondent's success in the case before him if such success were war- ranted upon the law and the evidence. His salary is unaffected by the outcome of cases before him. When in private practice, he had corporate clients but never any labor union clients (Tr. 767). He comes from a family of lawyers, on both sides of the house (Tr. 766), and is a lifelong Republican in politics (Tr. 963). -There is no suggestion of personal animus toward any of respond- ent's personnel, or of personal affiliation in interest with any of the Board's per- sonnel other than the fact that they are all members of the Board's staff, just as judge and prosecutor are officials of the same government. There was ample character testimony in his support, both by his superior, the Board's Chief Ex- aminer, and by present and former members of the Board's litigation and execu- 4 ^ tive staff who had had close personal and professional contact with him. Even more significant is the lack of anything to explain why Examiner Wilson should so gratuitously have declared himself prejudiced if he were so in fact, for it is still less credible that a dishonest man should declare his dishonesty than that an honest man should turn dishonest. We agree with the position taken by Mr. Rich in his cross-examination that judicial bias and prejudice does not nec- essarily involve dishonesty (Tr. 162-3). One may be biased without realizing it. and if he doe,, realize it, he may still preserve his honesty by refusing to sit judicially in a case in which it is involved ; but it is hard to divorce dishonesty from one who knows he is biased in a cause and proceeds to sit judicially in it notwithstanding. Where there is no other evidence that such is the case, or. of interest to motivate it, it would be radical to rely alone on the testimony of interested parties to an utterance that he would all the less likely have made were he guilty as charged. It remains to note the significance of respondent's and its counsel's silence re- garding Mr. Wilson's alleged utterance until after he had rendered a decision against them. Were the charge directed at a member of the federal judiciary, this would of course in any case be fatal to their complaint under Section 21 of the Judicial Code, quoted above. Ecc parte American Steel Barrel Co.,' 230 J. S. 35, 39; 57 L ed 1379; Skirvin v. Mesta, (CCA-10) 141 F. (2d) 668; Scott V. Reams. (CCA-10) 122 F. (2d) 777; Davis v. Securities and Exchange Commis- sion, (CCA-7) 109 F (2d) 6; Tennessee Publishing Co. v. Carpenter, (CCA-6) 100 F. (2d) 728. We need not here consider whether the principles and limi- tations of that statute apply also to officials sitting as the judicial representa- tives of federal administrative tribunals. Certainly we know of no rule of KELCO CORPORATION 817 statute or decision, nor of any principle emanating from the general nature and structure of administrative agencies and their procedure, that would subject them to more constricting standards of judicial conduct, nor that should place them more at the mercy of discontented litigants armed with such charges. The delay would be equally fatal as against state judges. Thus, in Aker v. Coleman, (1939) 60 Ida. 118; 88 P. (2d) 869, where the affidavit of prejudice was filed after the ruling of the court upon the demurrer to the original complaint : "Under similar statutory provisions it has been determined that a party may not be allowed to speculate upon what the ruling of the court may be and after any ruling has been made in the action, then for the first time seek dis- qualification on the ground of bias and prejudice." Semble: State ex rel Johnson v. Circuit Court, (1925) 114 Oreg. 6; 233 Pac.'563; 234 Pac. 262; Barton v. Brown, 117 Oreg. 525; 244 Pac. 660; In re Thomas' Estate, (1932) 167 Wash. 127; 8 P. (2d) 963; Krebs v. Los Angeles Railway Corp.,.7 Calif. (2d) 549; 61 P. (2d) 931; Curtis v. Joyce, (1917) 90 N. J. L. 47; 99 Ail. 932. The rigidity with which this rule is applied is well illustrated in Woolley v. Superior Court, (1937) 19 Calif. App. (2d) 611; 66 P. (2d) 680, involving litigation between private parties and a power company for damages for the diversion of waters from plaintiffs' lands. The charges in the affidavit, taken by the court as true for failure of the respondent to file a reply, recited that the judge was prejudiced against power companies in general and had asked, in advance of the trial, to be excused, to which the judicial council of the state had replied that, having been assigned, he could only be excused upon the filing of an affidavit of prejudice in compliance with the statutory requirement, which counsel at the time had forborne to do ; that during the trial he had openly stated that he was opposed to power companies and considered them monopolies and against the public interest; that during the trial he actively interrogated witnesses but always and only for evidence in favor of the plaintiffs, became extremely an- noyed over any objections by defendant to any of his questions, and angered whenever defendant counsel called his attention to errors in his statements of facts in the record; that repeatedly out of court he threatened to visit corporal punishment upon one of defendant's attorneys ; that during recesses he permitted plaintiffs' attorneys to visit and consult with him in his chambers over matters connected with the case, and that these consultations were also carried on at the hotel "where they met daily and dined in public consultation." In spite of all this, however, the jury, after a six months' trial, returned a verdict for the defendants, whereupon plaintiffs filed motion for new trial. On the day set for argument of this motion, defendant filed its affidavit of prejudice, which the court (after first granting the motion for new trial) denied, and fined each of the attorneys signing it $250 for contempt. On appellate review, the court sustained the rejection of the affidavit : "When, as here, the statement of disqualification was filed after judgment, and after two extensions of time had been granted petitioners within which to oppose motions for new trials, and when it appears from the statement of disqualification that the defendants were relying largely upon facts within their knowledge before and during the course of the trial, the trial judge was justified in striking the statement from the record as,being too late to comply with the provisions of Section 170 of the Code of Civil Procedure. People v. Berman, 117 Calif. App. 334; 4 P. (2d) 226; People v. Nolan„126 Calif. App 623;,14 P: (2d) 880." , , 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD And for the rationale of the rule, it quoted from-Lindsap-Strathmore District v. Superior Court, 182 Calif. 315; 187 Pac. 1056, 1065: "It would seem to be intolerable to permit a party to play fast and loose with the administration of justice by deliberately standing by without making an objection of which he is aware and thereby permitting the proceedings to go to, a conclusion which he may acquiesce in, if favorable, and which he may avoid, if not." The New Mexico Supreme Court expressed the same rule in somewhat more picturesque language, in State e.T rel Shufeldt v. Armilo, (1935) 39 N. M. 502; 50 P. (2d) 852: "We hold that an affidavit of prejudice is timely made if filed and called to the attention of the court before it has made any ruling on any litigated or contested matter whatsoever in the case, either on a motion, demurrer, or plea of the party making the affidavit, or on the motion, demurrer, or plea of any other party to the action, of the hearing of which the party making the affi- davit has been given notice. Otherwise it is not timely made. We cannot per- mit a litigant to test the mind of the trial judge like a boy testing the tem- perature of the water in the pool with his toe, and if found to his likigg, decides to take a plunge. The plunge into the pool of litigation with an affi- davit disqualifying the trial judge must be made on a belief of prejudice theretofore entertained, and not on any subsequent discovery of such belief of prejudice resulting from an adverse ruling." We are here, however more immediately concerned not so much with the legal; significance of delay in filing the charge of prejudice, as with its factual signifi- cance ; and the nature of its factual significance is at the same time suggested by the above pronouncements upon its legal significance. Delay spells uncertainty in the mind of the charging party as to whether that which to him appears sympto- matic of prejudice is attended by actual prejudice in the judge's mind ; and when, after decision against him, he finally brings the charge, he in effect represents as previously determined that which has not until then become certain even to him,- just as Mr. Rich testified in the present case : there was not a clear case of bias until he got the Examiner's Intermediate Report. (Tr. 156.) The difficulty them confronted is that, unless the symptoms are admitted, as in the Woolley case above, or separately established, it becomes difficult to localize the misrepresentation as between the symptoms and their significance : has the party thus post-charging the prejudice misrepresented only their significance, or has he misrepresented as well the conduct and utterances to which he attributes that significance? It is com- mon knowledge that the "game" of litigation, as it is too often regarded, is too widely accepted among elements of bar and laity alike as a license for carelessness with facts as well as with legal conclusions. Delay in bringing the charges is thus a factor entitled to consideration in determining the verity of the facts charged. The explanation for it attempted in the present case-that respondent did not want Mr. Wilson disqualified but only wants his prejudice considered by the Board in reviewing his findings-involves an intrinsic contradiction. Prejudice is not merely a varnish that can be peeled in review from ai disguised judgment leaving- the true one to stand forth. Prejudice, by the very meaning of the word, is pre- judgment ; and as such it dethrones judicial judgment on the question affected, leaving none to review. It is immaterial to the correction of errors apparent on the record, since their correction is the same whether they arose from prejudice or- KELCO CORPORATION 819 from mere errors in judgment. It is material only as to matters lying peculiarly within the lower tribunal's notice, such as the appearance and bearing of wit- nesses as affecting their credibility and the exercise of discretion as to matters discretionary within its proper limits. As to such matters, the only question on their review is, were they determined in the exercise of judicial judgment, or was, such judgment displaced by prejudice? If the latter, the reviewing authority can- not then replace it with a judgment of its own making upon factors not before it. If the question. affected is material to the decision, it can only vacate it entirely and remit the case for rehearing before an authority that is qualified. To be prej- udiced and yet qualified to exercise the judicial office is a contradiction in terms ; and to search for a prejudice that is not disqualifying is to look for one that can not be noticed as such upon judicial review. Upon the full consideration of all the factors above described, including the content of the evidence itself, its comparison as to credibility, the comparative interest of the parties or lack of it, the significance of the delay in bringing the charges, and upon all the evidence of record, the present Examiner is unable to find that the expressions charged to Examiner Wilson in respondent's Exception No. 11, of its Exceptions to Examiner Wilson's Intermediate Report of March 21, 1947, were uttered either in letter or substance as charged. The Examiner accordingly finds the charge not sustained. H. B. TEEGARDEN, Hearing Nxaminer. August 26, 1947.