C. Pappas Co., Inc.

In the Matter of C. PAPPAS COMPANY, INC. and DISTILERY, RECTIFYING AND WINE WORKERS INTERNATIONAL UNION (A. F. OF L.) Case No. 1-C-2970.-Decided April 6, 1949 DECISION AND ORDER On June 23, 1948, Trial Examiner Irving Rogosin issued his Inter- mediate 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 the Inter- mediate Report attached hereto. He also recommended that the com- plaint be dismissed insofar as it alleged that the Respondent engaged in certain other unfair labor practices. Thereafter, the Respondent filed exceptions to the Intermediate Report, and a memorandum brief., The Board 2 has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief filed by the Respondent, and the entire record in the case, and hereby adopts the findings, conclu- sions, and recommendations of the Trial Examiner, except that we do not adopt that portion of the Intermediate Report which finds that the Respondent per se violated Section 8 (1) by "deprecating, disparaging and vilifying the Union, its representatives and adher- ents," as the Respondent's conduct in this respect appears to have consisted of no more than expressions of opinion,3 nor that portion which states that where reasonable proof is available of a union's ma- jority status, the employer must endeavor to ascertain this fact. Although given leave by the Board, following denial of oral argument , to file a full and complete brief, the Respondent has not availed itself of the opportunity thus afforded. 2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this proceeding to a three-man panel consisting of the undersigned Board Members iChairman Herzog and Members Reynolds and Gray]. 2 See Matter of The Bailey Company, 75 N. L R. B. 941. 82 N. L R. B., No. 90. 765 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, C. Pappas Com- pany, Inc., Boston, Massachusetts, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with Distillery, Rectifying and Wine Workers International Union, affiliated with the American Fed- eration of Labor, as the exclusive representative of all the wholesale liquor salesmen employed by the Respondent at its Boston office, ex- cluding executives, office and clerical employees, and supervisors as defined in the Act, or taking any unilateral action without prior con- sultation with the said Union, with respect to rates of pay, wages, hours, or other conditions of employment; (b) Discouraging membership in Distillery, Rectifying and Wine Workers International Union, affiliated with the American Federa- tion of Labor, or in any other labor organization of its employees, by discharging or refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire or tenure of em- ployment or any term or condition of employment; (c) Interrogating its employees concerning their union affiliation, activities, or sympathies, or in any other manner interfering with, re- straining, or coercing its employees in the exercise of the right to self- organization, to form labor organizations, to join or assist Distillery, Rectifying and Wine Workers International Union, affiliated with the American Federation of Labor, 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 bar- gaining or other mutual aid or protection, and to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with Distillery, Rectifying and Wine Workers International Union, affiliated with the American Federation of Labor, as the exclusive representative of all the afore- said employees with respect to rates of pay, wages, hours, or other conditions of employment, and, if an understanding is reached, em- body such understanding in a signed agreement; C. PAPPAS COMPANY, INC. 767 (b) Offer Lawrence H. Foley immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges; (c) Make whole the said Lawrence H. Foley for any loss of earnings he may have suffered by reason of the Respondent's discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned from December 27, 1946, the date upon which he was discriminatorily discharged, to the date of the offer of reinstatement, and also such sums as he would have received as additional commission, absent the discrimination against him, by reason of the retroactive increase in rates of commission for the months of November and December 1946, less his net earnings during said period; (d) Post at its office and warehouse in Boston, Massachusetts, copies of the notice attached hereto marked "Appendix A." 4 Copies of said notice, to be furnished by the Regional Director for the First 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) 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; (e) Notify the Regional Director for the First Region in writing, within ten (10) days from the date of this Order, what steps the Re- spondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the Respondent (1) deprecated, disparaged, and vilified the Union, its representatives and adherents, (2) engaged in physical violence upon employees, (3) compelled its employees, under threat of dis- charge, to execute individual contracts, and (4) conspired and col- luded with an attorney purporting to represent employees for the purpose of inducing them to repudiate the Union, 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 : * In the event that this Order is enforced by a decree of the United States Court of Appeals, there shall be inserted before the words, "A DECISION AND ORDER," the words, "DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING." 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT interrogate our employees concerning their union affiliation, activities, or sympathies, or in any other manner inter- fere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist DISTILLERY, RECTIFYING AND WINE WORKERS INTER- NATIONAL UNION, affiliated with the AMERICAN FEDERATION OF LABOR, 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, and to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organi- zation as a condition of employment as authorized in Section 8 (a) (3) of the Act. WE WILL OFFER to Lawrence H. Foley immediate and full rein- statement to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed, and make him whole for any loss of earnings suffered as a result of the discrimination against him. WE WILL BARGAIN collectively upon request with the above- named union as the exclusive representative of all the employees in the bargaining unit described herein with respect to rates of pay, wages, hours, and other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All wholesale liquor salesmen employed by us at our Boston office, excluding executives, office employees, and supervisors as defined in the Act. WE WILL NOT take any unilateral action, without prior consul- tation with above-named union, with respect to rates of pay, wages, hours, and other conditions of employment, affecting the employees in the aforesaid unit. 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 em- ployment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. C. PAPPAS COMPANY, INC., Employer. By ------------------------------ (Representative) (Title) Dated -------------------- C. PAPPAS COMPANY, INC. 769 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 Messrs. Leo J. Halloran and Samuel G. Zack, for the General Counsel' Friedman, Atherton, King d Turner, by Messrs. Frank L. Kozol and Thomas A. Burns, and Mr. John C. Pappas, of Boston, Mass., for Respondent. Mr. Louis J. Blender, of Boston, Mass., for the Union. STATEMENT OF THE CASE Upon an amended charge duly filed on March 27, 1947 by Distillery, Rectifying and Wine Workers International Union (A. F. of L.), herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the First Region (Boston, Massachusetts), issued its complaint on June 11, 1947, against C. Pappas Company, Inc., Boston, Massachusetts, here- inafter called Respondent, alleging that 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.2 Copies of the complaint and amended charge, accompanied by notice of hearing thereon, the orders postponing hearing, and final notice of hearing, were duly served upon Respondent and the Union. With respect to unfair labor practices, the complaint alleged, in substance, that Respondent : (1) since on or about November 6, 1946, by (a) interrogating employees regarding their union affiliation , ( b) deprecating, disparaging and vilifying the Union, its representatives and adherents, (c) threatening employees with economic and physical reprisals, (d) engaging in physical violence upon employees, (e) urging, and offering inducements to employees to repudiate the Union and form a committee for the purpose of bargaining collectively with Respondent, (f) bargaining individually and unilaterally with its employees, and instituting a unilateral increase in commissions, (g) compelling its em- ployees, under threat of discharge, to execute individual contracts relating to their rates of commission, for the purpose of undermining and circumventing the Union, (h) attempting to induce, and inducing its employees to execute documents repudiating the Union, (i) bargaining collectively with a committee purporting, though not properly designated, to represent employees in an ap- propriate unit regarding rates of commission and compensation, (j) conspiring, colluding and cooperating with an attorney purporting to represent employees for the purpose of inducing them to repudiate the Union and undermining its status as bargaining representative;' (2) on or about December 27, 1946, by discharging and thereafter refusing to reinstate Lawrence H. Foley because of his union affiliation, thereby discriminating in regard to the hire and tenure and 1 All references herein to the General Counsel are , unless otherwise expressly indicated, to the attorney for the General Counsel presenting the case at the hearing 2 The provisions of Section 8 (1), (3), and (5), alleged to have been violated, have been incorporated as Section 8 (a) (1), (a) (3), and (a) (5) of the Act, as amended by the Labor Management Relations Act, 1947, Title I. 8 The allegations covered by ( g), (h), (i), and ( 1) were added by amendment during the course of the hearing, over Respondent ' s objection , with the understanding that if it claimed surprise, it would be afforded a reasonable opportunity, upon request, to meet the issues newly raised. No such request was thereafter made. 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD terms or conditions of his employment, and discouraging membership in the Union; (3) on or about November 6, and at all times thereafter, including November 8, and November 20, 1946, by failing and refusing, after demand, to bargain collectively with the Union as the exclusive representative of its em- ployees, notwithstanding that said Union had at all times since November 5, 1946 been the exclusive collective bargaining representative of Respondent's employees in an appropriate unit ; and (4) by all the foregoing acts has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8 (1), (3), and (5) thereof. Respondent, in its written answer filed before the hearing, admitted the jurisdictional allegations of the complaint, but generally denied therein, as well as in its oral answer on the record before the close of the hearing, the re- maining allegations, as amended, including the appropriateness of the unit, and the Union's majority status, but asserted its willingness to bargain with the Union upon certification by the Board. Regarding the alleged discriminatory discharge of Lawrence Foley, Respondent asserted that he had voluntarily terminated his employment, had never requested reinstatement, and had obtained substantially equivalent employment elsewhere. Pursuant to notice,' a hearing was held at Boston, Massachusetts, between January 12 and January 28, 1948, both inclusive, before Irving Rogosin, the Trial Examiner duly designated by the Chief Trial Examiner. The Board, Respondent, and the Union were represented by counsel. All parties partici- pated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. At the commencement of the hearing, counsel for Respondent moved to dismiss the complaint on the ground that the Labor Management Relations Act, 1947 had "substantially repealed" the Act under which the complaint had issued, and that the Board was thereby precluded from proceeding with the complaint. The sections alleged to have been violated having been specifically reenacted in the Act, as amended, the motion was denied. Respondent's motion for a. con- tinuance, on the ground of allowance of amendments to the complaint, was denied with leave to renew before the close of the evidence. No further request for a continuance was made, nor was it thereafter contended that Respondent had not been afforded full opportunity to meet the issues raised. Motion to suspend the hearing, until action by the Board upon Respondent's petition for investigation and certification of representatives, filed while the hearing was in progress, was denied. At the conclusion of the evidence, Respondent renewed a motion, made at the close of the General Counsel's case, and denied at the time, to strike specified testimony received subject to later connection ; expres- sions used by counsel for the General Counsel in propounding questions to wit- nesses; references to the F. B. I., and to certain criminal proceedings. An ' The hearing, originally noticed for July 14, 1947, was postponed on July 11, 1947 to September 22, 1947, and on August 25, 1947, indefinitely. On December 22, 1947, notice of the instant hearing for January 12, 1948, was served. Respondent, though not con- tending that it had not received appropriate notice of the postponements, as well as of the final notice of hearing, asserted, in effect, that it had been prejudiced by the lapse of approximately 1,0 months from the date of the issuance of the original complaint "on March 27, 1947," "without effective action" by the Board. The complaint was in fact issued on June 11, 1947, upon an amended charge, filed on March 27, 1947, the original charge having been filed on December 31, 1946. Respondent's contention is found to be without merit. The defense of laches may not be invoked against an administrative agency charged with the duty of vindicating a public policy or governmental function. See Matter of Standard Oil Company of California, 61 N L. R. B. 1251, 1255, and cases cited. See also N. L. R. B. v. Isthmian Steamship Co., 126 F. (2d) 598, 601 (C. C. A. 2). C. PAPPAS COMPANY, INC. 771 earlier motion to dismiss the complaint on substantially the same grounds, and on the further ground that, by the foregoing, counsel for the General Counsel had engaged in conduct unbecoming a prosecutor for a Government agency, was similarly renewed. Ruling having been reserved on said motions, the same are hereby denied. At the conclusion of the evidence, the undersigned granted, without objection, a motion of the General Counsel to conform the pleadings to the proof with respect to formal matters, not affecting the substantive issues. Counsel for the General Counsel, Respondent, and the Union thereupon availed themselves of the opportunity to argue orally upon the record. Although af- forded an opportunity to do so, none of the parties has filed proposed findings and conclusions or briefs. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT C. Pappas Company, Inc., a Massachusetts corporation, with its principal office and warehouse in Boston, Massachusetts, and branch offices and ware- houses in Worcester and Springfield, Massachusetts, is engaged in distributing and selling, at wholesale and retail, almost exclusively within the Common- wealth of Massachusetts, liquors, beers, wines, and groceries. In connection with its sate and distribution of beer, Respondent ships 3 to 4 carloads of empty bottles monthly from the Commonwealth of Massachusetts to the State of Min- nesota. Respondent as part of its business enterprise, also operates a chain of approximately 20 retail grocery stores, under the firm name and style of Gloria Chain Stores, all within the said Commonwealth, engaged in the busi- ness of selling domestic and imported groceries and specialties. In addition, Respondent is engaged, and will continue to be engaged indefinitely, in exporting food products to Greece, Italy, France, Scotland and other foreign countries in "vast," though unspecified, quantities. Respondent's sales exceed $15,000,000.00 annually, of which in excess of 80 percent represents products shipped to its warehouses from points outside the Commonwealth of Massachusetts. A `'very substantial" volume of its products is shipped from its warehouses to points outside the Commonwealth. Respondent concedes that it is engaged in commerce within the meaning of the Act, as amended II. THE ORGANIZATION INVOLVED Distillery, Rectifying and Wine Workers International Union, affiliated with the American Federation of Labor, is a labor organization admitting to member- ship employees of Respondent. III. THE UNFAIR LABOR PRACTICES A. Chronology; Interference, restraint, and coercion 1. Introduction Earliest organizational activity by the Union among Respondent's wholesale liquor salesmen, the only employees involved in these proceedings, occurred in "These findings are based upon the admissions in Respondent's answer to the juris- dictional allegations in the complaint, and a stipulation of the parties at the hearing. 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about March 1940 . After demand for recognition , and an exchange of communi- cations, a petition for an election was ultimately filed by the Union with the State Labor Relations Board for the Commonwealth of Massachusetts. There were then approximately 16 wholesale liquor salesmen in Respondent's employ, and an informal poll among the union members indicated that about 10 were in favor of, and about 6 opposed to the Union. The election, however, resulted in the defeat of the Union by approximately the same ratio. At a meeting soon afterward at the home of Harry Stearns, one of the salesmen, a controversy oc- curred as to which of the union members had recanted. No further action, how- ever was then taken.6 2. Later organizational activities ; Respondent's countermeasures Dissatisfaction among the wholesale liquor salesmen with prevailing commis- sion rates, and the reallocation by Respondent of accounts among salesmen, arose as early as May 1945, when further union interest manifested itself. It was not, however, until November 1946, that the salesmen made a concerted at- tempt to reorganize. On November 5, summoned by Salesman Louis Dinner, a group of 15 or 17 salesmen met at the Union's office. Louis J. Blender, executive vice president of the local, and international vice president and general counsel of the inter- national union, reviewed their earlier experience in 1941 when, in Blender's opinion, they had deserted the Union. Announcing emphatically that he had not solicited them to return, he admonished them not to attempt to reaffiliate with the Union unless they were absolutely determined to consummate their ob- jective. Assured of their earnestness, Blender accepted signed membership ap- plications, designations, initiation fees, and first month's dues of 16 salesmen.' Thereupon, and in the presence of at least some of the salesmen, Blender dic- tated a letter, notifying Respondent of the Unions claim of majority, and re- questing a conference to negotiate a collective bargaining agreement. The credible evidence further discloses that provisions for a proposed contract, selected from specimen contracts prevailing in the industry, were read and discussed at this meeting. Next day, upon receipt of the Union's demand for recognition, and on several succeeding days, Treasurer John C. Pappas' admittedly interviewed and inter- rogated various salesmen individually regarding their union affiliation. Stating that he had received the Union's demand for recognition he asked each whether he had authorized the Union to represent him, and whether he desired to have Respondent bargain with the Union. Among those thus interviewed Pappas, in his testimony, identified Herbert W. Rosen, John H. Barrett, Edward Klebenov, 6 Although the Union intimated at the hearing that its defeat in the election had resulted from employer interference, it had filed no charges of unfair labor practices or objections to the results of the election . The record in the instant case affords no substantial basis for such a finding, and none is made. The facts recited, based on the undisputed and credited testimony of Treasurer John C. Pappas and Salesman Herbert W. Rosen, are set forth as background for the later events which occurred. 4 These findings are based upon Blender 's credible testimony, corroborated by substantially all the employees who testified. 8 All references hereinafter to Pappas, unless otherwise indicated or required by the context, are to John C. Pappas, Respondent's treasurer , in charge of the wholesale liquor department . General supervision of the entire business enterprise was apparently under his brother, Thomas A. Pappas, Respondent's president. C. PAPPAS COMPANY, INC. 773 and Harry Stearns.' Of those mentioned, all had been employed by Respondent more than 3 years, and at least one, for as long as 15 years. According to Bar- rett's undisputed and credited testimony, after inquiring whether he had joined the Union the preceding Tuesday, Pappas asked how he had learned of the "meet- ing," and was told that Barrett had been notified by a telephone call from Law- rence Foley,' and that he had later talked with Foley and Harry Stearns on the phone. Pappas testified that the "invariable answer" to his question, whether the sales- men had joined the Union, was that, although they had become members of the Union, they had joined, and their membership had been accepted, with the express understanding that Blender would take no further action until specifically au- thorized by them. Although it is probable, as some of these employees testified, that they may have so informed Pappas, the undersigned is convinced, as will appear in the discussion of the refusal to bargain, that all the salesmen who joined the Union did so without reservation ; that their applications and desig- nations were accepted unconditionally ; that they did not instruct Blender to withhold further action until he was expressly authorized to proceed; and that he entered into no such undertaking. Moreover, assuming Pappas had been so advised by employees whom he interrogated, such advice, obtained by a method proscribed by the Act, can hardly be relied on as justification for ignoring the Union's demand for recognition. On November 8, at a regular Friday afternoon sales meeting lasting several hours;' Pappas announced that he had received a letter from the Union, which he proceeded to read. Stating that it was "not worth the paper it was written on," he declared he would never answer it. He continued, that he had learned some of the men had joined the Union, that he assumed their union activities had been prompted by dissatisfaction with commission rates, and promised them an increase. Reproaching them for joining the Union, he observed that while the "democratic people of Massachusetts had gone to vote,' . . . some of the boys of [Respondent's] organization had gone to the union office to stick a knife in his back." Admittedly greatly agitated and excited, he stated it was inconceivable that men like Harry Stearns, Michael Kaplan, or Louis Dinner' would "ever picket his place," and that unless a majority of the salesmen were on the picket line, they would be "carried away bodily on stretchers." Parenthetically, he added that in the event a picket line was established, he would take motion pictures to exhibit to the families of the men. He urged the salesmen , if they desired a union, to form one within the company, without "outside" influence. He complained of their failure to consult with him, as they had in the past, in the "usual family relationship," and threatened that he would sooner go out of busi- ness than deal with the Union. He cffered, however, to deal with the men di- rectly, and advised that they form a committee to discuss a commission plan with him. 0 Pappas testified that he was uncertain whether it was Harry Stearns or his brother, Walter Stearns , whom he had questioned . In view of Walter Stearns' denial that he had been so interviewed, and Harry Stearns' testimony that be had been "in and out" of Pappas' office during this interval, the undersigned finds, contrary to his denial, that it was Harry Stearns who was interviewed. 10 Whose alleged discriminatory discharge is discussed hereinafter. 11 In contrast to usual weekly sales meetings which rarely lasted more than an hour. 12 November 5, 1946, was Election Day. "Each of these men had been in Respondent 's employ for more than 8 years ; Stearns, for more than 13, at the time of the hearing , and their earnings were among the highest of the salesmen, approximating, in Stearns' instance, $20,000 a year. • 838914-50-vol. 82-50 '774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During his remarks, Pappas referred disparagingly to Union Representative Blender as a "racketeer," owner of "joints" or "sawdust joints," 4 and reviled him in such vile, lewd and obscene language as to cause Louis Dinner to announce that he would refuse to remain and be insulted. Pappas retorted that he was at liberty to leave if he objected, and Dinner and several others, including Law- rence Foley, started to leave, but were finally mollified by the other salesmen, and remained. Pappas apologized for his intemperate outburst, but did not retract any of the scurrilous remarks about Blender, or repudiate any of his other statements. Other remarks by Pappas, in themselves privileged, were to the effect that the men were "blind" to pay dues and fees to a union ; that they would lose their right to think for themselves ; would forfeit their independence by affiliating with a union ; and that they could obtain more by dealing directly with him than through a union. Except for admitting his scurrilous utterances about Blender, which he attempted to justify on the ground that it had been reported to him by Harry Stearns and others that Blender had previously made similar remarks about Pappas to union members, a fact not supported by the credible evidence,1° Pappas either generally denied or attempted to rationalize the statements attributed to him. According to Pappas, he stated to the employees that he wanted to ascertain whether the Union actually represented a majority; that he would not bargain with the Union except upon conclusive proof of majority by a Board-conducted election ; that he understood that Blender had refused in other instances to consent to an election ; and that, since he could not compel the Union to go to an election, the only way he could be certain of the Union's majority was if he found a majority of his men picketing his premises. Although he denied any reference to the removal of pickets on stretchers, he admitted mentioning that he would like to take moving pictures of any picketing, and that he would rather shut down his business than accede to the demands of a minority, asserting, however, that he would abide by the "free will of the majority." In view of Pappas' admission that he was aware that he could not be compelled to bargain with the Union as exclusive representative, unless it actually represented a majority, his explanation, that he had stated merely that he would shut down 14 Although the record discloses that the term "joints" or "sawdust joints" is in common usage, in the parlance of the liquor business, to denote taverns or similar liquor establish- ments, it is evident from the context in which the reference was made, and Pappas' temper at the time , that it was intended in an uncomplimentary sense, and so regarded by the men, despite the testimony of some that they did not so construe it at the time. Pappas, though denying the use of the expressions , admitted that he had referred to Blender's ownership of liquor establishments , in some of which Blender did in fact have an interest. Since there is no suggestion of impropriety in the ownership of an interest in such an enterprise, the reference could have had no purpose other than to disparage and undermine the union representative in the eyes of the employees. lc Although all the salesmen , testifying in the General Counsel 's case, stated positively that they had never heard Blender utter any derogatory remarks about Pappas, after Harry Stearns testified, as a witness for Respondent, that Blender had engaged in similar utterances against Pappas , several salesmen, recalled as witnesses for Respondent , testified that their recollection had been refreshed , and that Blender had in fact made similar remarks about Pappas All , however, including Stearns, agreed that such remarks were made by Blender for the first time at the union meeting of November 11. Thus, it is clear that the scurrilous references to Blender on November 8, could hardly have been in retaliation for similar remarks by Blender 3 days later. On the contrary, the evidence ,clearly warrants the inference that any remarks by Blender on November 11 were in retaliation for Pappas ' remarks on November 8. Although Blender emphatically denied 'that he bad ever made any profane or derogatory remarks about Pappas, it is probable, in view of the extreme provocation in Pappas' remarks, reported to Blender by union members, that he did in fact retaliate. C. PAPPAS COMPANY, INC. 775 rather than yield to a minority, is not credited. Nor, in view of the credible and mutually corroborated testimony of salesmen, notably Walter C. fiuening, Bernard N. Biller, and Lawrence H. Foley, upon whose testimony the findings have been made, a number of whom testified, with obvious reluctance, as wit- nesses for the General Counsel under subpena, does the undersigned credit Pappas' remaining denials or explanations. Although his testimony received some support from other salesmen testifying on behalf of Respondent, their testimony impressed the undersigned unfavorably 16 After the meeting, a committee, consisting of Harry Stearns, Michael Kaplan, Jed Kushner, Louis Dinner, and Jack Rosen was assembled to confer with Pappas. Stearns, self-appointed spokesman for the salesmen,17 testified that he himself selected the committee, despite testimony by other salesmen that the members of the committee were selected by informal nomination. Next morn- ing, Stearns, either alone or with the committee, waited on Pappas, and told him to ignore the Union's letter, because, according to Stearns, Blender had given the salesmen his word that "he would never touch" Respondent unless the salesmen went to Blender "in a body" and instructed him to proceed.1B On Armistice Day, November 11, a union meeting was held in response to a call from Louis Dinner Union Representative Blender reported that he had received no reply to the letter demanding recognition, and that he had enlisted the aid of John Del Monte, president of the State Federation of Labor, who had communicated with President Thomas Pappas in an effort to obtain a conference, but without success. Each of the salesmen then related in detail his version of what had occurred at the sales meeting the preceding Friday, repeating the substance of Pappas' remarks. Obviously incensed, Blender countered with some profanity toward Pappas. Heated discussion ensued, with recriminations between Harry Stearns and Louis Dinner, followed by expressions of mutual distrust and suspicion among the men, and accusations that persons within the room had been divulging union matters to Respondent. Predicting that the men would be unable to resist pressure which would be brought to bear by Respondent, Blender warned that if they desired to repudiate their action, they do so then before proceeding further. The men indicated that they had been "burned once," and intended to "see it through" this time. Asked what pressure could be exerted in the event Respondent resisted unionization of the salesmen, Blender stated that the Union could enlist the support of distilleries, whose employees were organized by the parent union, and which did business with Respondent 19 Mention was made of the possibility of strike action, but Blender effectively dispelled the idea, pointing out that such a course would prove costly 16 Of the salesmen subpenaed by the General Counsel, Michael Kaplan, Harry Stearns, Walter Stearns, Jed Kushner, Edward Kiebenow, Guy DelGazio, and John H . Barrett, excused without being called by the General Counsel were called as witnesses for Respond- ent. Their testimony was so patently biased in favor of Respondent, and as to some, Harry Stearns and Kushner in particular , characterized by such a lack of recollection regarding facts which might prove unfavorable to Respondent , as to render their testimony unreliable , except where corroborated by the credible testimony of other witnesses. 17 Stearns arrogantly boasted at the hearing of his role as both "father and mother" to the men , and testified , "Whatever I do in my company, my boys will stand behind me . . . They all let me go in and bargain with Pappas with the authority of all the men." 18 This contention is considered hereinafter under the allegations of refusal to bargain. 19 Notwithstanding Blender 's denial that he indulged in disparaging remarks 'about Pappas; that he stated that the Union could exert pressure on Respondent ; and that he made remarks of similar import , the undersigned finds, upon the preponderance of the credible testimony of various salesmen, and the plausibility of the statements in the light of their context, that he made the statements attributed to him. 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and unnecessary, and remarking that if resort were had to a strike, he was extremely dubious whether any of the men could be depended upon to support it. A proposed collective bargaining agreement was read to the men, and suggested changes were made by various members. During this interval, various salesmen were further questioned by Pappas, as well as his brother, regarding their union adherence. Of these, Biller, according to his undisputed and credited testimony, was first interviewed by Sales Manager Meader, who expressed surprise that Biller, a college graduate with three degrees," and a former teacher, should have been so gullible as to join the Union. In his later interview with Pappas, the latter substantially repeated Meader's remarks. Questioned as to the possible advantages of a union, Biller referred to it as the salesmen's only possible protection, meta- phorically contrasting the strength of a "bundle of sticks" with a single stick. Closing the interview, Pappas observed cryptically, "You know a heavy bundle of sticks will sink." On Friday, November 15, another sales meeting was held at Respondent's place of business, this time in the morning.21 Pappas opened the meeting with an apology for his outburst a week earlier, but, again, without retracting any- thing he had said about Blender, or repudiating any of his anti-union remarks. After some general discussion whether the men actually wished to be repre- sented by the Union, Pappas authorized the salesmen to adjourn to the Hotel Kenmore for luncheon at company expense. Although, accor,'.ing to the con- sensus of the testimony, the company was extremely generous in permitting salesmen to dine in a group at various hotels from time to time, at company expense, it is obvious that the purpose of this luncheon meeting was to enable the salesmen to reach a decision as to whether they still desired to be represented by the Union. After lunch, the group retired to a private room to discuss the Union. Jack Rosen presided. Discussion turned to the strategy of calling a strike during the pre-Christmas season, while Respondent's stock of merchandise was plentiful, a course previously explored. The meeting lasted into the late afternoon." Amid conflicting opinions, some favoring an immediate strike, others, following Rosen's lead, urging a "moratorium," Dinner suggested sending for Blender, who had had no previous knowledge of the meeting. When Blender arrived, shortly afterward, Rosen summarized what had taken place. Deprecating any talk of a strike, and expressing dismay that such a course was even being entertained, Blender urged the men to take full advantage of the pre-Christmas season to sell as much merchandise as possible, thereby earning Respondent's favor, and en- hancing their own earnings. The men accepted his advice, and the meeting adjourned. On November 19, the Union again wrote Respondent requesting a reply to its earlier letter demanding recognition. Apparently in consequence of this letter, President Thomas A. Pappas notified 11 or 12 of the oldest salesmen, including m Including a law degree. 21 Apparently no explanation was given the salesmen for the unusual hour of the meeting. The only explanation appearing in the record is Kaplan's undisputed testimony that the morning meeting was for the purpose of allocating liquor, then in short supply, among the salesmen. 22 The salesmen were all employed on commission , and any time lost from their work would theoretically be reflected in their earnings. Moreover, since there was no showing that Respondent paid them any compensation in lieu of commissions for the time so spent, no adverse inference is drawn from the fact that the men met during ordinary working time, or that Respondent, in accordance with its occasional practice, paid for the luncheon. C. PAPPAS COMPANY, INC. 777 several who were not union members, to appear at his office at 5: 00 p . in. for a conference . General complaints of Respondent's lack of cooperation with the salesmen, and various long-standing grievances were aired . When John Pappas joined the meeting soon afterward , his brother "bawled him out," remarking to the salesmen that it was unfortunate that he had not known of what had occurred. Since, however, according to Herbert Rosen, President Pappas said nothing about the Union , and the record discloses no specific reference to Treas- urer Pappas' remarks at the sales meeting of November 8, and , especially, since President Pappas testified that he learned of his brother 's remarks for the first time at the hearing, his reprimand of his brother , made in the presence of only part of Respondent's sales force, could hardly have dissipated the effects of Treasurer Pappas' prior statements and conduct. Nor, did the rebuke constitute an effective repudiation of his brother's conduct, particularly in view of President Pappas' own later activities. According to Herbert Rosen, a committee was formed, however, to attempt to bring Blender and Respondent together, but Rosen testified that he never heard anything further of such a committee. Despite President Pappas' remarks to the salesmen at the time, according to Salesman Biller's undisputed and credited testimony, Pappas himself later questioned him regarding his earnings , and as to whether he was satisfied with his job, comparing it with his former, presumably, unremunerative job as a school teacher. Broaching the subject of unions and strikes, Pappas observed that unions were "outsiders" and "a lot of trouble," and urged that the salesmen deal with him, assuring Biller that they could obtain more from him than "a third party." In conclusion, President Pappas warned that "if the Union was going to get rough, two could play at the same game." ' At the next regular sales meeting, on November 22, Pappas expressing surprise at receipt of the Union's latest letter, stated that he had understood "this thing was over and done with." He suggested that if the men had changed their minds, they discuss the matter and advise him of their decision. After discussion among themselves, a group of 10 or 12 salesmen reported to Pappas, in the presence of his brother, Thomas, that they had not authorized the sending of the letter, that they had decided "to stand on what they had promised him pre- viously," and that no reply was necessary 2' According to Pappas, he was visited next day by the committee of 5, was again told to ignore the Union's letter, and that the committee would notify Blender that the salesmen did not desire to have the Union bargain on their behalf. Contrary to some suggestion in the record, Blender was never so advised, nor did any committee wait on him until June 1947, shortly before this case came on for hearing, as will later appear. 3. The unilateral increase in commission rates ; subsequent events Several days later, the committee requested Pappas to discuss commission rates for 1947. He stated that he preferred to postpone discussion until he was 23 Although it is possible that Pappas may have been referring to threats by Blender, reported to Pappas' brother, to enlist the support of distilleries in gaining recognition from Respondent, it is improbable that that was what Pappas intended, in view of the context in which the remark was made. There was no showing that the Union had manifested any disposition to "get rough ." This remark, as well as the covert threat of risk of loss of remunerative employment, if Biller persisted in his union allegiance, amounted to coercion. 24 These findings are based on the credible and undisputed testimony of Jack Rosen, who testified both as a witness for the General Counsel, under subpena, and for Respond- ent As has already been indicated , however, and as will later appear, the designation of the Union was actually made without reservation or qualification by the salesmen. 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "positive that [they] mean[t] business and did not desire Blender to repre- sent them. Although, according to Pappas, they assured him of this, he sug- gested that the matter be discussed at the next sales meeting, stating, however, that he preferred to defer it until the end of the year, but agreeing that any increase in rates would be retroactive to November 1. At the next sales meet- ing, Pappas reported the committee's request, but stated that he preferred to wait "until this thing dies, if it is going to die," to avoid legal complications. A special union meeting was held on December 12, pursuant to telegraphic notice to all members. Twelve members attended. The risks involved in a consent election were discussed, but this medium was rejected, because of the Union's earlier experience, as well as the subsequent events. Foley reported that his former employer had sent for him, and reproved him for his union af- filiation.26 The salesmen present determined to continue their union activities- Finally, late in December, after a number of conferences with the committee, Pappas granted the salesmen's initial request for an increase in commissions from: 21/2 to 3 percent on sales of liquor, and 5 percent on such specialties as wine and cordials. Significantly, and in contrast to the treatment accorded the Union, Pappas at no time questioned the authority of the committee to represent a ma- jority of the salesmen, contenting himself, at most, with the committee's naked claim. Although members of the committee testified that they made informal progress reports to the salesmen from time to time, the preponderance of the credible evidence established that the salesmen were not so advised or finally notified that agreement had been reached, until mimeographed copies of the "contract" were submitted for their signatures. The "contract," effective Janu- ary 2, 1947, was, however, merely a schedule of commission rates, with appro- priate places for signature of the company and written approval by the salesmen. Individual copies were submitted for signature to all salesmen present at a sales meeting, or in the case of those absent, shortly afterward, with the exception of John Polando and Lawrence Foley. None offered any protest, and there is no evidence to support the allegation that the salesmen were required to sign the individual contracts under threat of discharge. Except for Foley, the sales- men all received checks in varying amounts, exceeding several hundred dollars, depending on volume of sales, covering the retroactive increase in commission rates for November and December." On December 23, 1946, Respondent held its annual Christmas party at the Hotel Somerset. The events of that evening, culminating in Foley's termination, are related hereinafter. On Friday, January 3, 1947, another special union meeting was held pursuant to notice mailed on December 30. Only eight members appeared, and one tele- graphed a proxy. Blender reported that he had still received no reply to the 21 The events concerning this episode are discussed later in connection with Foley's alleged discriminatory discharge. 29 Polando, who resigned voluntarily on December 26, 1946, testified unequivocally that, although he had not been requested to sign a contract, he received a check covering the retroactive increase. Pappas testified originally that he assumed Polando had received such a check , although he was uncertain , and that Foley was the only salesman who had not received such additional compensation. Later, however, after consulting, but without producing his records, he testified, that the last check to Polando, dated January 8, 1947, in the amount of $19.87, covered commissions on sales prior to January 1, and that Polando received no check for retroactive commission. In view of this inconclusive evidence, Polando's general credibility , and the probability that such an unusual occur- rence as the receipt of additional compensation would undoubtedly make a marked im- pression on an employee, the undersigned concludes that Polando did in fact receive suck additional compensation. C. PAPPAS COMPANY, INC. 779' requests for recognition. Reviewing the events at the Christmas party, and Foley's subsequent termination, Blender announced that he had filed unfair labor practice charges against Respondent, on December 31, alleging interference, restraint, and coercion, the discriminatory discharge of Foley, and a refusal to bargain. Some question was raised whether the action required authorization by a majority of the members. Blender informed them that all members had been notified by letter, a copy of which was read, and stated that those present- had complete authority to act. Neither at this meeting, nor at any prior meet- ing, was it ever reported to Blender that Pappas had expressed his willingness- to bargain with the Union on proof of majority ; that Pappas had been in- structed not to reply to the Union's demands for recognition ; or that he had been advised of any arrangement or understanding between the union members and Blender that the latter would take no action on their behalf without prior ex- press authorization. Nor, although the undersigned regards it as immaterial, was any protest made at this meeting at the filing of unfair labor practice- charges. At a regular sales meeting late in March 1947, Pappas announced that he had been served with notice of the filing of the amended charge ; repeated that he- had understood that the men had notified Blender that they no longer desired- to be represented by the Union ; and that they had not authorized the filing- of the charge. Pappas suggested that they discuss the matter, and advise him. According to Pappas, the committee again reported to him that Blender had not been authorized to prefer charges ; that the Union did not represent a ma- jority ; and that Blender had, nevertheless, insisted that he would proceed even if he represented only one employee. Pappas thereupon advised that they write a letter to the Board stating their position. Such a letter was actually prepared- by Harry Stearns, after consultation with an unidentified attorney, which was then signed by all the men. The letter, however, was never submitted to the Board, allegedly, according to Pappas, because the hearing was indefinitely postponed 27 4. Events following issuance of complaint The hearing was originally scheduled for July 14, 1947. Early in June, the committee called on Blender to request him to withdraw the charge. According- to Blender's credited and substantially undisputed testimony, Jack Rosen, the spokesman, told him that the committee was there at Respondent's suggestion to "get the charges dropped." 28 Harry Stearns, too, joined in the request, while- Kaplan "apologized for . .. being there," stating that "he had to go through with it." Pointing out that the Union, and not the employees, was the charging party, Blender refused. Significantly, the committee did not then assert that it purported to act for the majority of the salesmen, and the record furnishes no reliable basis for such a conclusion. On June 19, another union meeting was held. Attendance had by now dwindled to six members, Lawrence Foley, Jack Rosen, one of the members of the committee which had waited on Blender, Bernard Biller, Walter Hueningf Walter Stearns, and Herbert Rosen. Blender read the formal notice of the hearing and complaint, and stated that the men would be required to testify. None protested or requested Blender to withdraw the charge. With passage of 27 The hearing was not actually postponed until July 11, 1947, for the first time. 76 Although Rosen originally fixed the date of this visit as sometime in January, he later testified that it might have occurred in June, and acknowledged that there was only one such visit. It is found that the visit did in fact take place in June. 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Labor Management Relations Act, 1947, in the meantime, the hearing was, however, postponed indefinitely. On December 22, 1947, the hearing was again noticed for January 12. The proceeding Friday, January 9, at the close of the regular sales meeting, Pappas, at Salesman Kaplan's request, notified all salesmen who had been served with subpenas by the General Counsel to remain. Soon afterward, George L. Rabb, an attorney whom Kaplan had consulted, arrived and was introduced to the men. Although Kaplan had not previously discussed the matter with the sales- men, or sought their authorization in advance, he explained to the men that he and Harry Stearns had retained Rabb on their behalf. Rabb stated that he expected those who had been subpenaed to pay him for his services, but there was no discussion as to the amount of his fee, or the manner in which it was to be paid. Nor was there any showing that he has since been paid, or has submitted a bill for services. No protest, however, was made, and Rabb proceeded with the business at hand. The record discloses that Rabb was associated in the practice of law with his brother, Maxwell, under the firm name of Rabb & Rabb, and that Maxwell Rabb was legislative agent for the Suffolk Downs Eastern Racing Association, of which John Pappas was treasurer and chairman of the Board of Directors. Superficially, at least, the appearance of Attorney George Rabb at this juncture seems a remarkable coincidence. Pappas, however, testified, without contra- diction, that neither Rabb nor the firm of which he was a member ever represented Respondent, or Pappas personally, in this or any other transaction. The record further discloses that Rabb had previously represented several salesmen, includ- ing Kaplan and Dinner, as personal attorney in various matters, Kaplan testify- ing in some detail regarding matters in which Rabb had represented him. Although not without some doubt, the undersigned is unable to find, on the basis of the record, that Rabb was retained by, or acting for, or on behalf of Respond- ent, as contended by the General Counsel. Rabb indicated to the men that he was only vaguely aware of the nature of the proceedings, and observed that he might be "sticking his neck out." He stated, however, that since the salesmen who had been subpenaed were con- cerned about the loss of time which would be entailed in their attendance at the hearing, he would undertake to arrange for their appearance with minimum disruption in their work. Consequently, he advised them not to appear at the hearing at 10: 00 o'clock, as directed in their subpenas, but to telephone his office in the forenoon instead. Meantime, he stated, he would appear at the hearing, attempt to schedule their appearance as required, and advise them when they telephoned. Incidentally, he inquired whether they had authorized the pro- ceedings, and, when informed by some that they had not, drafted in longhand for their signature a letter addressed to the Regional Office, as follows : We wish to inform you that the proceedings now pending against C. Pappas Company, Inc., our employer are entirely against our will and without our authority. The complainant in filing same did so without our authority or consent and in so doing was not acting as our agent or representative. The 12 employees who had been subpenaed signed the document, several in the presence of Pappas, who had left the roc,m shortly before Rabb's arrival, and returned as the last few signatures were being affixed29 The letter was not, 2° The signature of Dinner, who was not present at this meeting, was obtained by Kaplan and Stearns the following day. C. PAPPAS COMPANY, INC. 781 however, sent to the Regional Office, but was produced at the hearing, and received in evidence 80 In view of the fact that Pappas, even though ostensibly at Kaplan's request, instructed the employees involved to remain after the sales meeting ; permitted the use of company premises for the holding of the meeting ; was pres- ent while several salesmen signed the letter disavowing the Union's authority to institute the proceedings ; admittedly questioned Rabb about what had been done ; and in view of Pappas' conduct and activity, already related, and discussed hereinafter, including his opposition and hostility to the Union and his attempts to induce the employees to repudiate the Union, the undersigned finds that by his participation in connection with the aforesaid letter, Respondent has interfered with, restrained, and coerced its employees in the exercise of their rights guaran- teed in the Act. Insofar as the denial in the letter of the Union's authority to file charges is concerned, it is sufficient to observe that a bargaining agent, duly designated, without limitation, is not required to obtain the consent of its members before filing unfair labor practice charges. Moreover, although the Board may, in its discretion, permit withdrawal of unfair labor practice charges, it cannot be re- quired to do so, particularly where the request is made, not by the charging party, the Union, here, but by individual members. Since the Act is designed to vindi- cate a public policy, and not private rights, the desires of individuals, even when they may constitute a majority, are not determinative of whether alleged viola- tions of the Act shall be prosecuted. Respondent, however, apparently contends that the letter is tantamount to a repudiation of the Union. It is clear from its tenor that that was neither its purpose nor effect. Moreover, since, as the record establishes, any dissaffection is attributable to Respondent's unlawful conduct, the attempted repudiation of the Union, under the circumstances disclosed here, would be ineffectual. Most significant, however, is the fact, affirmatively and unequivocally established by the record that none of the employees, not even those who had signed the letter, have ever withdrawn or revoked their designation of the Union. On the con- trary, the record discloses that their membership dues were practically current at the time of the hearing, and those who testified for the General Counsel generally stated that they desired and intended to have the Union represent them as their collective bargaining agent. The hearing in the instant case commenced January 12, 1948, as scheduled. On January 15, at Respondent's request, and with the consent of all parties, the hearing was adjourned to January 19, to afford the parties an opportunity to reach a settlement. At noon, Friday, January 16, a group of 12 or 14 salesmen attended a luncheon meeeting at the Parker House, once more, at company expense, in an effort to 10 At the commencement of the hearing, Attorney Rabb was permitted to appear specially for the limited purpose of requesting that the subpenaed witnesses be excused subject to telephone notice until their attendance was actually required . The parties having been unable to effect any mutually satisfactory arrangement, the witnesses were required to honor the subpenas until they completed their testimony or were excused by the General Counsel. Later, when the General Counsel amended the complaint to allege collusion between Respondent and "an attorney ," obviously referring to Rabb, the latter sought to intervene orally, and later in writing, on the ground that his integrity had been impugned, and demanded the right to cross-examine witnesses concerning the nature and extent of his activities. The motions were denied, but he was offered an opportunity to vindicate his position by testifying as a witness, He declined , and was not called as a witness by Respondent , although he counselled with attorneys for Respondent fre- quently during the hearing, particularly during testimony involving his participation in the events related. 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD obviate further hearing. Herbert Rosen, who had notified the men, presided. Amid general discussion of the Taft-Hartley Act, and its possible impact on the pending case, it was suggested that counsel for Respondent, as well as Attorney Rabb, be invited to appear. Respondent's Counsel Frank L. Kozol, accompanied by his associate, Thomas A. Burns, and Attorney Rabb arrived shortly. Kozol was questioned about the Taft-Hartley Act, and the steps which could be taken to dispose of the case. He declined to advise them, stating that the men would be obliged to seek their own counsel, and that he was there only to listen. Burns apparently took no part in the discussion. Rabb, however, after deploring that the men about whom the case revolved had not been permitted to intervene, sug- gested that they write to both Respondent and the Union requesting an election. None of the attorneys advised or counselled the salesmen to withdraw from the Union, and Rabb, when asked his opinion, told them to "forget about it." Since the hearing had been adjourned to enable the parties to reach a settle- ment, the acceptance by Respondent's counsel of the salesmen's invitation to attend their meeting, despite his apparently neutral position, appears to have been ill-advised. No similar invitation had been extended the union repre- sentative, nor was any attempt made by Respondent's counsel to ascertain whether a representative of the Union, or the General Counsel would be present. Normal settlement negotiations contemplate a meeting of representatives of all the parties to a controversy, rather than a meeting between a representative of one of them with the principal of the other. It is difficult to perceive any useful purpose that was served by the presence of Respondent's counsel. If the employees merely sought information regarding the Taft-Hartley Act, or an opinion as to its effect on the pending case, they could have consulted the attorney purporting to represent many of those present. Since, however, the record discloses no attempt by Respondent's representatives at this meeting to influence the decision of the employees, the undersigned makes no finding thereon. Later that day, the men attended a regular sales meeting. Before the meeting ended, Kaplan telephoned Rabb for an appointment that evening. When Presi- dent Pappas urged the men to have the case terminated, stating that if the Union prevailed in a Board election, Respondent would bargain with it, Kaplan informed him of the scheduled meeting with Rabb. Early that evening, some 15 salesmen met with Rabb at his office. Among them were two brothers-in-law of John Pappas, who were not members of the Union. At someone's suggestion, an "election" was held among the men which disclosed that 14 were in favor of, and one opposed, to a Board-conducted election. On Rabb's advice, the following letter, dated January 16, 1948, addressed jointly to Union Representative Blender and Respondent, and signed by 16 salesmen," was mailed by special delivery : The protracted hearings which are being held before the National Labor Relations Board are a source of serious concern to us. We feel strongly that these hearings have kept us from gainful employment and have been of no benefit to us and that no useful purpose can be gained from them. In order to clear the air and to effect an immediate solution we are requesting both of you to petition the National Labor Relations Board for an election to be held in the immediate future so that there can be no n The signatures of Dinner and Kushner, who were not present, were obtained later by Kaplan and others before the letters were mailed. Of the 16 who signed this letter, 12 had signed the letter of January 9, denying the Union 's authority to initiate proceedings. Two of the remaining 4 were John Pappas ' brothers-in-law. C. PAPPAS COMPANY, INC. 783 question as to our bargaining representative. We are willing and agree to abide by the results of such an election. The hearing was resumed on January 19, no settlement having been reached. on January 20, at the conclusion of the General Counsel's case, counsel for Respondent offered in evidence a copy of an employer petition for investigation and certification of representatives, the original of which had been filed with the Regional Office. Attached to the petition was a photostatic copy of the letter above set out. Respondent's counsel thereupon moved that the hearing be suspended until action by the Board on the petition. The motion was denied. On January 21, 1948, Respondent was notified by the Regional Director that its representation petition had been administratively dismissed. No request for review of this action, as provided in the Rules and Regulations, has been made. 5. Conclusions The record clearly establishes that, immediately upon receipt of the Union's demand for recognition, and thereafter, Treasurer Pappas, and later, President Pappas undertook to interrogate employees concerning their union affiliation. Such activity constitutes an unlawful interference with the right of employees to self-organization, is not privileged as free speech, and has been held coercive per se." Nor may such conduct be utilized as a means of ascertaining whether .a union represents a majority." On November 8, 1946, in a diatribe containing highly inflammatory and scurrilous remarks about the union representative " Treasurer Pappas threatened the employees with physical and economic re- prisals, and promised them an increase in commission rates. During later .questioning, Treasurer Pappas made thinly veiled threats to Salesman Biller. In addition, Respondent dealt with a committee of its employees, established at its suggestion, without requiring proof of its status as majority representative, in the face of the Union's claim for recognition ; negotiated an increase in com- mission rates with it ; and finally granted such increase for the obvious purpose of persuading employees to renounce the Union. Such conduct has repeatedly ueen held to constitute interference, restraint, and coercion. Nor is this con- -elusion affected by the testimony of employees that they were not coerced by the remarks and statements of Respondent's officers. Such evidence is not probative of whether Respondent has engaged in conduct violative of the Act" The real test is whether such conduct tends to interfere with the free exercise by employees of their rights under the Act." 32 Matter of Morrison Turning Co., Inc., 77 N. L. R. B. 670 ; Matter of Ames Spot Welder Co, 75 N L. R. B. 352; Matter of Reeves-Ely Laboratories, Inc., 76 N. L R. B. 728 and cases cited. 38 Matter of the Royal Bank of Canada, San Juan Branch, 67 N. L. R. B. 403. 34 Whether or not statements of the type used to characterize the union representative, standing alone, may be privileged under the Act, as amended, as the expression of "views, argument, or opinion," is doubtful. Since, however, they were accompanied by "threat of reprisal [ and] force [ and] promise of benefit ," the speech itself is not entitled to the protection of Section 8 (c). " See Western Cartridge Company v. N. L. R. B., 134 F. (2d) 240, 244-245, (C C. A. 7), -cert. denied 320 U. S. 746, and cases cited. 88 See Matter of Sewell Manufacturing Company , 72 N. L. R. B. 85, and cases cited. The soundness of these principles is well illustrated in the instant case. Notwithstanding the emphatic denial by employees that they had been interfered with , restrained, or coerced by Respondent's conduct, it will be noted that at the very next union meeting following the speech of November 8, Louis Dinner, who had initiated the renewed organizational .activity in the Union , after its defeat some years earlier, fell to quarreling with Harry 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The undersigned, therefore, concludes and finds that by the foregoing conduct, Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, thereby violating Section 8 (1), now Section 8 (a) (1). B. Discrimination in regard to hire and tenure of employment; further interference, restraint, and coercion Lawrence H. Foley was employed by Respondent from January 7, 1945, to December 27, 1946. Like other salesmen, he worked on commissions, paying his expenses out of earnings. Although there had been no opening when Foley first applied for a position, Pappas, impressed by Foley's persistence, and at the intercession of John Ford, Foley's former employer 37 made a place for Foley on his sales staff.' The territory assigned Foley was not exceptional, but he justified Pappas' judgment as to his potentialities, ranking among the first 10 salesmen in volume of sales, and earning Pappas' commendation. In May 1945, dissatisfaction was prevalent among the salesmen regarding com- mission rates and the redistribution of accounts by Respondent among the sales- men. Foley was approached by Jed Kushner with regard to the Union, and, on May 9, 1945, signed a membership application. Sometime before November 5, 1946, Foley was again approached, this time by Louis Dinner, who had learned from Kushner that Foley was a "union man." On November 5, after notifying various salesmen, Foley attended the organizational meeting. It will be recalled that, in response to questioning by Pappas, Barrett had informed him that he had been notified of the meeting by Foley. Foley attended the subsequent union meetings, as well as sales and luncheon meetings, mentioned earlier, and his testimony generally corroborates the findings already made. Shortly before Christmas, 1946, in response to a message left at Respondent's office, Foley called on John Ford, his former employer. In the presence of Ford's brother, Ford told Foley that John Pappas had called him and taken him to task for recommending Foley, stating that, had he known of Foley's union sympathy, Pappas would never have hired him. Ford mentioned his personal embarrassment, and remarked that he knew on "good authority" that there would be no union-that Foley was "being made the goat." He urged Foley to advise the men that "the smartest thing to do was to string along with John Pappas, and forget all about the union," and suggested that if Foley was unhappy working for Respondent, he ought to be "man enough to quit." Foley hastened to assure him that he was content. Ford also warned that he would not be responsible for anything that happened to Foley. During the discussion, Ford made a telephone call, evidently to Pappas, in which he stated that Foley was in his office, and then instructed Foley to report to Pappas that he had talked with Ford. Foley later reported to Pappas that he had visited Ford, and related what had occurred, stating that Ford had told him to be sure to report to Pappas that he had seen Ford. Admitting that he had communicated with Ford, Pappas in- quired why Foley was so "antagonistic," observing that the "whole affair would have been ovcr if [Foley] had kept [his] mouth shut in the union hall" about Stearns ; expressions of suspicion and mutual mistrust were voiced by union members ; attendance at union meetings thereafter steadily declined; and, after the granting of the increase in commission rates, an obvious rift developed between union members, even though all continued to retain their membership. 84 Ford, whom Foley had known for about 25 years, was also an acquaintance of John Pappas 81 These findings are based principally upon Pappas' own direct testimony. C. PAPPAS COMPANY, INC. 785 his interview with Ford. Foley replied that he had no desire to embarrass Ford, and assured Pappas that he was not the "leader or instigator" of the union move- ment, although he felt that a union was desirable. Pappas commented that Foley would think differently of Blender, whom he characterized as an "outcast from his family," after he learned more about him. Foley mentioned Pappas' outburst at the sales meeting, of November 8, and criticized Pappas, a judge of the Commonwealth, for his intemperate remarks. Pappas countered by stating that he had no regrets for what he had said.9 Earlier that day, Foley had had some disagreement with Harry Stearns regarding a Christmas gift collection. According to Foley's credited, though denied, testimony, President Pappas, overhearing the argument, summoned Foley to his office, and told him that "unless [he] kept [his] mouth shut about union activities that there would be blood and guts all over the street," adding that Foley "hadn't seen anything yet." When Foley replied that Pappas was not "scaring him," and started to leave, Pappas called him back, and apologized. Recounting his early beginning as a newsboy, and his struggles in attaining his present position, Pappas announced that he would not allow anything to "break it up," and that under no circumstances would there be a union as Respondent's business. He asked Foley whether he did not agree that Respondent had a right to conduct its own business without being "dictated" to by the Union. Foley agreed, but added that he regarded a union as desirable, and that he was not telling him one thing to his face and another behind his back. After discussion about commissions and territories, Pappas asked Foley if he was happy at his job. He agreed that he was, but that he could use more accounts. Pappas then stated that Foley had served his apprenticeship satisfactorily, and was now in a position to "reap the benefits," assuring him that if Respondent had not approved of him he would not be working there. Foley also took occasion to refer to Treasurer Pappas' remarks at the sales meeting, commenting on the latter's choice of that occasion to air his personal grievances against Blender. During the interview, Pappas commented on the substantial expense to which Foley was being subjected in connection with his invalid child, and offered him financial assistance, and the good offices of his position as a director of the Children's Hospital. Foley thanked him, but declined, stating that he would not accept charity as long as he was able to work. In the discussion about his child, Foley mentioned that he had been attending a church mission, and had taken a vow of abstinence from liquor in the hope that his child would get well. On the evening of December 23, 1946, Respondent tendered its annual Christmas party at the Hotel Somerset. President Thomas, and Treasurer John Pappas 89 Although Pappas denied that he had communicated with Ford , and, inferentially, that he had so admitted to Foley, Pappas testified that at about the time in question, Foley had reported to him that he had seen "a friend" of Pappas that day, mentioning Ford, who had asked Foley to convey his regards to Pappas. After requesting him to return the greeting, Pappas inquired what had occasioned Foley's visit to Ford , and was told, according to Pappas, that Foley visited his former employer frequently, especially since he "owed [his] job to him," and because Ford had helped him "open plenty of accounts." In view of this testimony, Foley's general credibility, the plausibility of his testimony, in light of all the surrounding circumstances and subsequent events, regarding the encounter with Ford, the undersigned finds that Foley visited Ford in consequence of Pappas' previous telephone call to Ford ; that Foley later reported to Pappas that he had visited Ford , relating the substance of the interview, discussed in the teat ; that Pappas admitted that he had telephoned Ford ; and that, in his subsequent talk with Foley, Pappas made the remarks attributed to him, despite his denial that he ever stated to Foley that he objected to his union activities, or ever threatened him, or any other employee with reprisal therefor. 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were present, and Salesman Michael Kaplan acted as toastmaster. Both Pappases addressed the gathering, after which President Pappas left. Gifts of $50 U. S. Savings Bonds were distributed to the employees on behalf of Respondent by Harry Stearns, in the role of Santa Claus. Among guests introduced by the toastmaster was Michael Rocco, an employee, seated with representatives of distilleries, at the Pappases' table. While the party was still in progress, Foley was notified by President Pappas` chauffeur that a "personal friend of Tom Pappas'," whom he identified as Michael Rocco, and "Mickey the wise-guy," wished to see him in the anteroom. Foley stated that he had nothing to say to Rocco, and the chauffeur remarked, according to Foley's undenied testimony, "He won't hurt you." Foley thereupon went to the anteroom where he found Rocco. The men sat down, and Rocco asked Foley whether he had received a telephone call from Ford. When Foley admitted that he had, Rocco remarked, "It appears to me that you don't under- stand English." Asked what he meant, Rocco replied, "You know what I mean." "You mean that I don't scare easily?" rejoined Foley, looking away momen- tarily. With that, Rocco struck Foley several blows about the face and chest. Polando, who arrived on the scene as Rocco was striking Foley, interceded, pushing Rocco against the wall. According to Polando, someone remarked, "You don't want to get mixed up in this," and pulled him aside. Others appeared and a "free for all" ensued. Bleeding and bruised about the face, Foley returned to the ballroom, and thanked Pappas for his "Christmas present." Pappas "grinned sarcastically," according to Foley, but made no comment'° Meanwhile, Leo Silton, a distillery representative and guest at the banquet, who had appar- ently intervened on Foley's behalf, became involved in a fight with Rocco. The two men were finally subdued, but not until Rocco had struck Silton repeat- edly while the latter was being restrained. Salesmanager John Bottomley, who attempted to intercede, was accidently struck by Silton in the affray, and later treated by the hotel physician. John Pappas, who had, meanwhile, been attracted by the fracas, attempted to help quell it, and after threatening to have Silton discharged, ordered him from the hotel. Although, as suggested by Respondent's counsel , it is conceivable that Pappas had assumed from Foley's remark to him that he had actually been thanking him for the U. S. Savings Bond , Pappas' uncertainty, at first, and denial , later, that the incident occurred, renders such an inference untenable. Moreover, since Foley bore unmistakable evidence of injury at the time, Pappas' failure to com- ment, or inquire of Foley what had happened, in contrast to his concern about Salesmanager Bottomley's injuries, and his insistence that he obtain medical treatment immediately, suggests that Pappas was well aware what Foley meant by the allusion to the Christmas present, and that he was not in ignorance of the assault. That night, on his arrival at home, after relating to his wife what had occurred, he learned from her for the first time that about a week and a half earlier she had received an anonymous telephone call from a man who had threatened her and her children with harm, unless her husband abandoned his union activities. w Asked, during his examination by Respondent 's counsel, whether Foley had thanked him for his Christmas present that evening , Pappas testified , "I can't say that he did, and I wouldn't say that he didn 't, because there were so many people that came to the table." Later, when Foley's testimony was recalled to him, Pappas testified, "I don't think that is true." Respondent's counsel persisted , "In fact, you know it isn't true ?" Pappas finally said, "Yes." In view of this equivocal denial , and Foley's general credibility, the under- signed credits Foley's version of this incident. C. PAPPAS COMPANY, INC. 787 Foley received medical treatment for his injuries, made a report to the Federal Bureau of Investigation, and lodged a formal criminal complaint against Rocco, later withdrawn on advice of Union Representative Blender. Foley did not report for work, but, contrary to Salesmanager Meader's testi- money, telephoned him that he was unable to work due to his condition. Meader told him to come in when he felt well enough, and Foley agreed to come in the following Friday. The same morning, Pappas attempted several times to reach Foley by telephone, but Foley refused to speak to him. Later that day, on instructions from Pappas, Salesmanager Meader visited Foley's home, and, in Foley's absence, spoke to his wife. Discussing the assault upon her husband, Mrs. Foley related the episode of the telephone threat, and expressed fear for the safety of her children. When she added that she was astonished that a person of Pappas' education and refinement, conducting "a perfectly legitimate business," would employ such "tactics" toward an employee, Meader assured her that she need have no fear for the safety of her children, that "this [was] the United States." She insisted, "well, it has happened here." According to her, Meader remarked, obviously referring to Pappas, "Well, what do you expect, born and brought up in the North End." a' Meader attempted to dismiss the Christmas party incident as an unavoidable "drunken brawl," but Mrs. Foley reminded him that Foley had taken a vow of total abstinence in the hope that his paralyzed child would walk. In his testimony, Meader admitted that he had visited Foley's home on the day in question, and engaged in a conversation with Mrs. Foley, during which she referred to her husband's injuries. He did not, however, testify as to the remainder of Mrs. Foley's testimony, nor was he recalled to rebut it. Apart from the fact that it was uncontradicted, the sincerity and poignancy of her testimony was impressive and convincing, and, her testimony is credited. The evidence regarding the anonymous telephone call, however, although suspicious, affords no probative basis for a finding that it was attributable to Respondent. The inci- dent has been related solely in explanation of the conversation between Mrs. Foley and Salesmanager Meader. Nor is the evidence of Meader's remarks to her regarded as sufficient to constitute a vicarious admission by a supervisory employee that the assault upon Foley was instigated by Respondent. Although Rocco's status is somewhat obscure, the following facts are clearly established by the record" A longtime friend of the Pappases, he had been in their employ about 12 years. He was employed, as a "missionary man" or "good- will ambassador," on salary, and, although licensed as a liquor salesman, was assigned no special territory. His duties included calling on both liquor and grocery customers of Respondent, to ascertain whether they were being properly serviced, and generally creating good will, reporting directly to President Pappas. Commissions on the occasional orders he took were paid to the salesmen whose accounts he serviced. So far as the record discloses, he was the only employee, not an official of Respondent, who was publicly introduced to the guests at the Christmas party by Toastmaster Kaplan. Described as the company's "good-will ambassador," he was introduced as "One of our old employees who has been with the company a long time, who hasn't been too active, and a very good friend of John and Tom Pappas." Although Respondent denied that Rocco was a super- "Alluding apparently to a slum area. 42 Rocco. who was still in Respondent's employ at the time of the hearing , was not called to testify, and there was no showing that he was unavailable. 788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD visory employee or that he possessed any indicia of such authority,' it is evident that he enjoyed the confidence of management, as indicated by his knowledge of Pappas' communication with Ford, Foley's former employer, disclosed in Rocco's res gestae remarks to Foley immediately preceding the assault. It is unlikely that be acquired this knowledge from any source other than Respondent's managing officials. Further indication that Rocco was in Respondent's confidence is revealed by the fact that, according to Union Representative Blender's uncontradicted and credited testimony, Rocco called on him shortly before the instant case was originally scheduled for hearing, to request a continuance. Mentioning that John Pappas was "tied*up" at the time with the Suffolk Downs Race Track," and that Rocco himself was greatly interested in that venture, Rocco asked that Blender let the case go over until Pappas "[got] himself adjusted," and stated that he would attempt to bring the parties together. Blender agreed not to object to a con- tinuance. It is a reasonable inference that in requesting the continuance, Rocco was acting at the behest of Respondent, or, at least, John Pappas. Finally, the record reveals that on December 26, 1946, in a conversation with John Polando, who had intervened during the assault, Treasurer Pappas told him that he was surprised to hear that he "would be involved in a mess where Lawrence Foley was an instigator of this union affair," adding that Rocco would "never forgive [Polando] for what [he] did to him." He assured Polando, however, that "nothing would happen to [him]." When Polando asked Pappas who Rocco was, Pappas identified him as an employee and "good-will ambassador," remarking that Rocco had a "reputation" for sometimes using "other things besides his fists," and concluding, "We were very fortunate that nothing else happened, that it stopped where it did." " The record, however, fails to establish that Respondent had inspired or insti- gated the assault upon Foley, or that it has been committed with its prior knowl- edge or consent. There was a further failure of proof that Rocco was a super- visory employee, or that, in the perpetration of the assault, he had acted within the scope of his real or ostensible authority as an agent of Respondent. While Pappas' silent, when confronted by Foley immediately after the assault in the face of what amounted to an accusation that Respondent had instigated the assault, is suggestive of acquiescence or affirmance, the evidence fails to establish sufficiently that Rocco, in commiting the assault, was purporting to act for Respondent, so as to create any liability upon Respondent under established principles of agency. Nor, in the light of the foregoing, is the undersigned able to conclude that Pappas' remarks to Polando, on December 26, 1946, constituted either an admission that Rocco had in fact acted on behalf of Respondent in perpetrating the assault, or an affirmance or ratification of his conduct as a matter of law, particularly since the remarks were made to a stranger to the transaction. In arriving at these conclusions, the undersigned recognizes, in 4s Asked by Respondent's counsel whether Rocco's position, as compared with that of other salesmen, was "sort of a minor salesman's job," Pappas testified, "Well, I wouldn't call it minor ; he has had a very poor record in the sales organization of our company in the past. In the last few years, he hasn't been too active. . . . He has been under the doctor's care for three years." The retention of Rocco in Respondent's employ, in view of his poor sales record, is significant. " It will be recalled that John Pappas was treasurer and chairman of the board of directors of this enterprise. 45 These findings are based upon the credible and undisputed testimony of Polando. He had resigned voluntarily to take another position ; was not a member of the Union at the time of the hearing ; and gave no indication of bias, prejudice or hostility toward Respondent. C. PAPPAS COMPANY, INC. 789 view of Respondent's opposition to the unionization of its employees ; Treasurer Pappas' attempt to enlist the aid of Foley's former employer in prevailing on him to renounce his union activities ; the threat of physical violence by President Pappas against Foley; and the other facts related, that the evidence might sup- port a finding that Rocco, in committing the assault, had in fact been "acting in the interest of [the] employer." In view, however, of the definition of employer In the Act, as amended, the undersigned regards the evidence insufficient to support a finding that Respondent is chargeable with the assault upon Foley." Foley reported for the regular sales meeting on Friday, December 27, and, after transacting some business with Respondent's credit manager, and talking to Salesmanager Meader, went to the sales room to await the meeting. Soon afterward, he was notified to report to President Pappas. When Foley com- plied, President Pappas inquired what had taken place at the Christmas party. Foley insisted that Pappas knew what had occurred, and that there was no need of telling him. According to Foley, Pappas then stated that Foley had, "had too much to say around there" regarding union activities, and that "it would be better if [Foley] weren't around there." Asked whether he needed any money, Foley replied that he did not ; that there was a week's pay due him. Pappas' silent, when confronted by Foley immediately after the assault, in which Pappas delivered to Foley. Asked by Foley whether he wanted him to attend the sales meeting, Pappas replied that there was no need of it-that Foley was "through." The regular pay period ended on Wednesday, and salesmen customarily re- ceived their checks after the sales meetings, Friday, so that pay checks were generally prepared in advance for delivery after the meeting. The record does not disclose whether Foley's check included commissions accruing through Friday. Foley then left Respondent's employ. He has not since been offered reinstatement, nor has he received any compensation covering the general retro- active increase in commission rates for the months of November and December, paid the other salesmen. Respondent's contentions regarding Foley's termination In an apparent attempt to suggest that Foley had in some way precipitated the assault, Respondent offered evidence through President Pappas and Sales- man Barrett that early in the evening of the Christmas party, Foley had appeared to be in a sullen and belligerent mood. An allegedly menacing remark, attrib- uted by Barrett to Foley, when the latter stated that he was still "on the wagon," was clearly intended jocularly, Barrett himself testifying that Foley might have been "kidding." Pappas' testimony further established that Foley was abstaining from drinking, and that he preferred to be alone. This evidence wholly failed to establish that Foley had furnished the slightest provocation for the assault, or that it was, as Respondent intimated, the result of a drunken bra,vl, at least as far as Foley was concerned. Moreover, since Respondent denies that Foley was discharged, it can hardly contend that he was discharged for cause. 46 The pertinent section reads, in part : Sec. 2 ( 2) The term "employer" includes any person acting as an agent of an employer,, directly or indirectly. (13) In determining whether any person is acting as an "agent" of another person so as to make such other person responsible for his acts, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling. 838914-50--vol. 82---51 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD According to President Pappas, however , after learning of the affray from his brother, of the latter's efforts to reach Foley , and Salesmanager Meader's visit to Foley's home on instructions from John Pappas, President Pappas left word with the salesmen and the switchboard operator that he wished to see Foley as soon as he came in. When Foley reported to Pappas , still bearing evidence of the assault , the latter inquired how Foley was feeling, and deplored the fact that a fight had occurred at a Christmas party. According to Pappas, Foley remarked that he had not been at fault ; that it was "one of those things" which could not be avoided when people get together. Pappas expressed the hope that the incident would be forgotten , and, after observing that Foley ap- peared "pretty well upset," suggested that he rest over the weekend , forget the episode, and return with "a new outlook." Foley then stated, according to Pappas, that he did not believe he would be happy with Respondent ; and that he did not think the men approved of him . Pappas commented that Foley appeared to have an inferiority complex, and "a chip on [his] shoulder." Foley insisted , "That is just the way I feel. . . . The best thing for me is to get through," and asked for his check . Although Pappas admitted that he had been satisfied with Foley's services , that he considered him an asset to the business, and recognized the effort involved in breaking in a new salesman, he acquiesced in Foley's decision, made no attempt to dissuade him from leaving, but instead, instructed Meader to bring his check. Pappas denied any men- tion of the Union or Foley's participation in union activities . He admitted, however, that he had inquired about Foley's child, and had offered his help. Pressed as to whether he had made any attempt to determine what had precipitated the assault upon Foley , Pappas testified that he did not ask for details, but that Foley had stated that Rocco had made some remark to him, that he had retaliated , and a fight ensued. "Nobody's going to push me around," Pappas quoted Foley as saying . Asked whether he had attempted to ascertain who had been the aggressor, Pappas testified he had already learned that from his brother , but that he did not ask Foley what Rocco had said, apparently concluding that Foley had been responsible for the affray. Later, Pappas testified that he had sent for Rocco, and , as with Foley, de- plored the incident ; that he had asked Rocco what had happened ; had learned that Foley had used vile language toward him, and that a fight had ensued. The record reveals a singular failure on the part of Respondent to make any- thing resembling a serious investigation to establish the culpability for the affray, which, according to Pappas , had so shocked him. He testified, how- ever, that he reprimanded Rocco, but did not otherwise discipline him, and singularly enough, that he neither reproved nor reprimanded Foley, whom he apparently regarded as responsible. Respondent contends, in effect, that Foley resigned because he had concluded, unjustifiably, that Respondent had instigated an unprovoked assault upon, him because of his union affiliation . That Foley had, indeed , reached such a cohclu- sion, even though the record does not establish sufficient basis for such a finding, is evident. The fact that Treasurer Pappas had , as has been found, enlisted the aid of Foley's former employer in prevailing upon Foley to renounce the Union, supports Foley's conviction . Rocco's indirect reference to this fact, immediately preceding the assault, furnishes further support for this conviction. The ques- tion here, however, is whether Foley's conviction , however unwarranted, that Respondent had done him a grievous wrong would have impelled him to resign in C. PAPPAS COMPANY, INC. 791 protest. The preponderance of the credible evidence, and the reasonable infer- ences therefrom, do not support such a conclusion." The conduct which Respondent seeks to attribute to Foley is inconsistent with his character, both as demonstrated by his activities while in Respondent's em- ploy, and by his behavior and demeanor at the hearing. It will be recalled that Foley had obtained employment with Respondent only after unusual perse- verance, which so impressed Respondent that it made room for him on its staff at a time when there was an acute shortage of liquor. His urgent need for the position had been conveyed to Respondent, not only by Foley, but by Ford, his former employer, with whom Pappas had had some acquaintance. Foley' s earn- ings as a salesman had been rewarding, and his services wholly satisfactory. The financial obligations in connection with his paralyzed child were undoubt- edly onerous. As to his union affiliation, he had made no attempt to conceal it from Respondent. On the occasion when he reported to Pappas his meeting with Ford, Foley frankly acknowledged his adherence to the Union. Later he reiterated his position to President Pappas, in the face of an intemperate outburst, accom- panied by threats of violence. Nevertheless, Foley gave no evidence of weaken- ing in his allegiance to the Union, nor was he impelled by fear of possible re- prisal to leave Respondent's employ. It seems unreasonable to conclude that his courage finally faltered after the assault upon him. His conduct immediately afterward, when he faced Pappas and thanked him for his "Christmas present," his report of the incident to the FBI, the application for a warrant against the assailant, are all evidences of firmness, if not defiance, rather than of defeatism. Had he intended to resign, it is more reasonable to conclude that he would have done so impulsively, immediately after the assault, when he confronted Pappas and thanked him cynically for his Christmas present. The conduct which Re- spondent seeks to ascribe to Foley is more consistent with a spontaneous outburst of righteous indignation, at the scene of the injury, rather than the result of several days of calm deliberation and reflection. Three days had elapsed be- tween the assault and Foley's separation. Four days later, an unfair labor prac- tice charge was filed, alleging the discriminatory discharge. Moreover, Respond- ent's version of the termination interview was vague, illogical, and unconvincing. The undersigned concludes and finds that Foley did not voluntarily terminate his employment, but that he was in fact discharged for his failure to renounce his union allegiance. 4' The undersigned has considered the testimony of Walter Stearns that, prior to Foley's termination on the day in question, Foley, in poor spirits, had made an obscene reference to Respondent, and remarked to him, "I ought to quit." Several weeks later, according to Stearns, he met Foley, and asked him why he had "quit." Foley merely "shrugged his shoulders like he didn't want to talk about it." On another occasion , some weeks later, he again met Foley, and remarked, "I understand you quit." Stearns quoted Foley as saying, "Yeah, I resigned, or something like that !" Although Foley was not called to rebut this testimony, Stearns' extraordinary concern in establishing that Foley had "quit," renders his testimony suspect. The record discloses that Stearns, one of the most recently hired salesmen, was eventually assigned to Foley's former territory, after complaining that he had been unable to earn a living in the territory originally assigned to him. It is reasonable to infer that Stearns was aware that in the event Foley was ordered reinstated, Stearns might be deprived of the territory which he had recently acquired , and the undersigned finds that his testimony was affected by this consideration. Moreover, the undersigned was not generally impressed by his demeanor as a witness. In view of the foregoing and the further fact that the unfair labor practice charge, alleging Foley's discriminatory discharge, was filed 4 days after his termination, the undersigned finds that Foley did not make the admissions attributed to him by Stearns. 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In reaching this conclusion, the undersigned has been persuaded by the evi- dence of Respondent's open opposition and hostility to the Union ; the threats of reprisal against employees for engaging in union activities ; Foley's known union affiliation, as revealed by Barrett's disclosure to Treasurer Pappas that he had been notified of the organizational meeting by Foley ; Pappas' implied admission that he had communicated with Ford to enlist his aid in prevailing upon Foley to renounce the Union ; Treasurer Pappas' remarks to Foley that the "whole affair would have been over if [Foley] had kept his mouth shut at the union hall" concerning the Ford incident; President Pappas' threats of physical reprisal against Foley ; his concluding remarks at the time of Foley's termination, that he had had too much to say regarding the union activities ; and the other circum- stances already detailed. It is not difficult to surmise that Respondent regarded itself poorly rewarded, by Foley's union affiliation and adherence, for the pains it had taken to provide him with lucrative employment -a circumstance which it doubtless construed as an act of disloyalty and ingratitude. Upon the basis of the foregoing and upon the entire record, the undersigned concludes and finds that, by discharging Lawrence Foley because of his union affiliation, Respondent has discriminated in regard to his hire and tenure of em- ployment, thereby discouraging membership in a labor organization, in violation of Section 8 (3), as amended. The undersigned further finds that, in addition to the foregoing, by Treasurer Pappas' statements to Foley, including the implied admissions regarding his communication with Foley's former employer, and the adoption by Pappas of Ford's remarks to Foley ; and by President Pappas' threats of physical reprisal against Foley, Respondent has interfered with, re- strained, and coerced its employees within the meaning of Section 7 of the Act, thereby violating Section 8 (1), thereof, as amended. 0. The refusal to bargain 1. The appropriate unit The complaint alleged, in substance, the parties stipulated at the hearing, and the undersigned finds, on the basis of the foregoing, and upon the entire record, that all wholesale liquor salesmen employed by Respondent at its Boston office, exclusive of executives, office and clerical employees, and super- visors within the meaning of the Act, as amended,'' constitute an appropriate Unit for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act, as amended, and that such unit will assure to the employees the fullest freedom in exercising the rights guaranteed by the Act, and otherwise effectuate the policies of the Act. 2. Representation by the Union of a majority in the appropriate unit ; the refusal to bargain It was further stipulated, and the undersigned finds that, on or about November 5, 1946, and at all times material herein, there were 22 wholesale liquor sales- 43 Sec. 2 (11) : The term "supervisor" means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge , assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. By stipulation of the parties, the two salesmanagers are excluded from the unit as supervisors. C. PAPPAS COMPANY, INC. 793 men in Respondent's employ at its Boston office, exclusive of supervisors, of whom 16 signed membership applications and authorization cards on November 5, 1946, in addition to 1, who had been a member of the Union for several years prior thereto. Another, signed a membership application and authorization card on December 12, 1946. Thus, the Union had been designated as majority rep- resentative by 17, out of 22 employees within an appropriate unit as of November 5, 1946, and hence, commanded a clear majority" Respondent contends, however, that when the 16 salesmen signed the mem- bership application and authorization cards on November 5, they did so, and their applications were accepted by the union representative, with the express understanding that the Union would not proceed until expressly authorized by the applicants. The applications and designations are clear and unequivocal and no such reservation appears therein. Union Representative Blender's cate- gorical denial that he entered into any such undertaking, is supported by the preponderance of the evidence, as well as the logic of the situation. It will be recalled that, when approached for the purpose of affiliating with the Union, Blender reminded the salesmen of their experience some years earlier, when, after a majority had designated the Union, they voted against it in a consent election. He admonished them not to renew their organizational effort unless they were determined to carry the undertaking through. Only after they had convinced him of their determination did he consent to accept their applications, initiation and membership fees. Although, as Salesman Jack Rosen testified, it is probable that he told them that he would keep them fully advised, and that he would not sign any collective bargaining agreement without their prior approval, the undersigned is convinced and finds, on the basis of the foregoing, and the entire record, that, contrary to the testimony of various salesmen, Blender made no such commitment, and that the employees joined the Union uncondi- tionally, and without reservation. This conclusion finds further support in the evidence that Blender immediately dictated a demand for recognition in the presence of at least some of the salesmen ; that he discussed with them various provisions for a proposed contract; and soon afterward, presented for their consideration a proposed draft of a contract, all without protest or objection from any of the salesmen. Except for Polando, who resigned to accept other employment, all the salesmen who had designated the Union, remained members, and, with the exception of Foley, were employed by Respondent at the time of the hearing. The undersigned, therefore, finds, upon the basis of the foregoing, and on the entire record, that the Union was, on November 5, 1946, and has been, at all times material herein, the duly designated representative of a majority of the employees in an appropriate unit, and that, by virtue of Section 9 (a) of the Act, was, on November 5, 1946, and has since been, the exclusive representative of all the employees in the said unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment. It was further stipulated that on November 5, and again on November 19, 1946, the Union wrote Respondent requesting recognition and a conference for the " Respondent's contention that these employees were not "officially accepted" Into the Union and never achieved the status of union members , is rejected as without merit. See N. L. R. B. v. Consolidated Machine Tool Corporation, 163 F. (2d) 376 (C. C. A. 2) ; see also, N. L. R. B. v. Bradford Dyeing Ass'n., 310 U. S. 318 ; N. L. R. B. v. Somerset Shoe Co., 111 F. 2d 681 (C. C. A. 1) ; N. L. R. B. v. Fargo Foundry Company, 141 F. 2d 462 (C. C. A. 8) ; Lebanon Steel Foundry v N. L. R. B, 76 App. D. C. 100, 130 F. 2d 404, cert. den. 317 U. S. 659. 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD purpose of negotiating a collective bargaining agreement. Both letters were sent by registered mail, and duly received by Respondent, but went unanswered. Respondent contends, in effect, that it declined to reply to Union's request for recognition because, after interrogating its employees, and learning, according to its contention, that the Union had agreed not to undertake to bargain on behalf of the employees until expressly authorized by them, it concluded that the Union did not in fact represent a majority. As has already been indicated, such interrogation, whether or not for the purpose of ascertaining majority, is per se violative of the Act. Moreover, If Respondent entertained a bona fide doubt as to the Union's majority, it was incumbent upon it to make demand for such proof upon the Union. Respondent, if sincere in its position, could then have confronted the Union with the alleged claim that the designation of the Union had been conditional.60 Instead, it chose to ignore the Union, embarking on a campaign to undermine its status as bargaining agent, and dealt directly with the employees, through a committee whose formation it had suggested. Furthermore, while protesting its willing- ness to recognize the Union if it prevailed in a Board-conducted election, it at no time requested the Union to consent to an election, or advised it that it would accord it recognition upon certification by the Board. It has been repeatedly held that an employer may not require an election and certification as a condition precedent to bargaining with a union, where the employer entertains no real doubt as to the union's majority, or, where reasonable proof is available, and the employer makes no effort to ascertain whether the union commands a majority.51 Moreover, it is clear that any disaffection by the employees was directly at- tributable to Respondent's unfair labor practices. Thus the record establishes that, apart from Respondent's refusal to bargain on November 6, 1946, in itself an unfair labor practice,62 since the Union then had a clear majority, Respondent questioned employees concerning their union affiliation and the Union's majority; threatened and coerced its employees; urged the formation of a committee with which it agreed it would, and later did bargain ; offered and later granted its employees, through the committee, an increase in the rate of commissions retro- active to November 1, 1946, without requiring proof that said committee repre- sented a majority of the employees, in decided contrast to Respondent's attitude toward the Union ; discriminatorily discharged an employee ; and engaged in the other conduct already related. In these circumstances, "An employer cannot be heard to say that he entertains an honest doubt as to the union's majority status where he conducts a campaign to destroy that majority." His refusal to recognize or otherwise bargain with a union until its majority status has been established in an election, under such circumstances, constitutes a refusal to bargain in violation of Section 8 (5) of the Act.6s 60 It has already been shown that neither the letter of January 8, 1948, nor the letter of the employees , under date of January 16, can be construed as an effective repudiation of the Union. m See, e. g., N. L. R. B. v. Remington Rand, Inc., 94 F. (2d) 862, 868, 869, (C. C. A. 2) ; K. L. R. B. v. Federbush Co., 121 F. 2d 954 (C. C. A. 2 ) ; N. L. R. B. v. Dahlstrom Metaluo Door Co., 112 F. 2d 756 (C. C. A. 2). 62 "The result of an unremedied refusal to bargain with a labor organization, standing alone, is to discredit the organization in the eyes of the employees, to drive them to a second choice, or to persuade them to abandon collective bargaining altogether, as occurred here." Matter of Wilson A Co., Inc., 67 N. L. R. B. 662. 62 See Matter of Consolidated Machine Tool Corporation , 67 N. L. It. B. 737, enf'd as modified, 163 F. 2d 376, (C. C. A. 2) cert. den. 332 U. S. 824; Matter of Wilson h Co., Inc., 67 N. L. It. B. 662 , enf'd 162 F. 2d 310 , ( C. C. A. 8). C. PAPPAS COMPANY, INC. 795 With respect to the unilateral granting of the increase in commission rates, the law is clear that the mere granting of conditions requested by individual employees with the knowledge that this would lead them to renounce their bar- gaining agent, constitutes an unlawful inducement by the employer for the un- seating of the bargaining agent, and the surrender by employees of their fundamental rights under the Act. Moreover, once such a representative has been designated, and until such designation has been effectively and lawfully revoked, the employer must refrain from negotiating with the individual em- ployees in the unit, and must confine his dealings to their representative, even to the extent of resisting the overtures of a majority of the employees in the unit that he deal with them instead of with their collective bargaining representative." This is more especially so, where, as here, the employer himself initiates the proposal which results in the disaffection of the employees.' Significantly, in the instant case, despite the two documents signed by the employees, the first denying the Union's authority to file unfair labor practice charges, and the second, seeking an election, both presented while the proceedings were pending, none of the employees ever revoked his designation, or repudiated the Union, at any time prior to the date of the hearing, and all, with minor exceptions not here material, were substantially current in their dues. Upon the basis of the foregoing, and upon the entire record, the undersigned concludes and finds, that the Union was, on November 5, 1946, and at all times material thereafter, the duly designated representative of a majority of the employees within the aforesaid appropriate unit, and that by virtue of Section 9 (a) of the Act, was, and has since been, at all times material herein, the exclusive representative of all the employees in the said unit for the purposes of collective bargaining with respect to rates of pay, wages, hours, and other conditions of employment. It is further found that Respondent, by its entire course of conduct, as already more fully related, including its refusal to bargain with the Union on November 6, 1946, after demand, and again on November 20, 1946; by offering to grant its employees, and thereafter granting them a unilateral increase in commission rates, and additional retroactive commissions for November and December 1946, after the Union had been duly designated by a majority of Respondent's employees, and without prior consultation with said Union, has, since November 6, 1946, and at all times thereafter, failed and refused to bargain with the Union as the exclusive representative of the employees within the appropriate unit in respect to rates of pay, wages, hours, and other conditions of employment, in violation of Section 8 (5) of the Act, thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in Section III, above, occurring in con- nection with the operations of Respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce, among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 5 Medo Photo Supply Corp. v. N. L. R. B., 321 U. S. 678 "" Even in cases where it may be assumed that some employees who renounce a union are motivated in part by factors other than the discouraging effects of the unfair labor practices of an employer, any attempt to disentangle other factors from the unremedied unfair labor practices is impossible, and a defection under these circumstances does not as a matter of law impair the union's previously established majority. Matter of Wilson & Co , Inc., supra. 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE RF.-,% EDY Having found that Respondent has engaged in certain unfair labor practices, it will be recommended •that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that Respondent has refused to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit. It will, accordingly, be recommended that Respondent bargain col- lectively with the said Union upon request. It has been further found that Respondent has discriminated in regard to the hire and tenure of employment of Lawrence H. Foley. It will, therefore, be recommended that Respondent offer the said employee immediate and full reinstatement to his former or substantially equivalent position," without preju- dice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered by reason of the discrimination against him, by payment to him of a sum of money equal to that which he would normally have earned from December 27, 1946, the date upon which he was discrimina- torily discharged, to the date of the offer of reinstatement, in addition to such sums as he would have received, absent the discrimination against him, as addi- tional commission, by reason of the increase in rates of commission, for the months of November and December 1946, less his net earnings 57 during said period. Since the individual contracts which the employees were required to sign did not constitute collective bargaining agreements, but were merely schedules of commission rates, it will not be recommended that Respondent cease giving effect to these individual contracts, or to any modification, continuation, exten- sion, or renewal thereof, or desist from entering into any similar form of con- tract with its employees." Nothing herein, however, shall be construed to per- mit Respondent to require its employees to executive individual contracts of employment for the purpose of forestalling collective bargaining or deterring self-organization of its employees, or having such effect. Nor shall anything herein be construed to require Respondent to vary any rate of commission, hours- of employment, seniority, or other substantive features of its relations with the employees, which Respondent has established in connection with the indi- vidual contracts, or to prejudice the assertion by the employees of any right they may have under said contracts. The extensive and pervasive nature of Respondent's unfair labor practices, including discrimination in regard to hire and tenure of employment, one of the most effective methods of defeating and frustrating employees in their right to- self-organization," establishes that Respondent is manifestly opposed to the purposes of the Act. The undersigned is convinced, upon the entire record, that danger of commission in the future of unfair labor practices by Respondent is to be anticipated from its conduct in the past. It will, therefore, be recom- mended, to protect the rights of the employees generally, that Respondent be required to cease and desist from in any other manner interfering with, restrain- 55 In accordance with the Board's consistent interpretation of the term, the expression "former or substantially equivalent position" is intended to mean "former position. 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, San Juan, Puerto Rico Branch, 65 N. L. R. B. 827 57 See Matter of Crossett Lumber Company, 8 N. L R. B 440, 492-498. 55 Cf. J. I. Case Company v. N. L. R. B., 321 U. S. 332. 51 See N. L. R. B. v. Automotive Maintenance Machinery Co., 116 F. (2d) 350, 353. C. PAPPAS COMPANY, INC. 797 ing, and coercing its employees in the exercise of the rights guaranteed under the Act.'° Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAw 1. Distillery, Rectifying and Wine Workers International Union, affiliated with the American Federation of Labor, is a labor organization within the meaning of Section 2 (5) of the Act. 2. All wholesale liquor salesmen employed by Respondent at its Boston office excluding executives, office and clerical employees, and supervisors within the definition of the Act, as amended, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. Distillery, Rectifying and Wine Workers International Union, affiliated with the American Federation of Labor, was, qn November 5, 1946, and has since been, at all times thereafter, the exclusive representative of all the employees in the aforesaid unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By refusing, on or about November 6, 1946, and at all times thereafter, including on or about November 8, 1946, and on or about November 20, 1946, to bargain collectively with Distillery, Rectifying and Wine Workers International Union, affiliated with the American Federation of Labor, as the exclusive representative of the employees in the aforesaid unit, and by unilaterally granting a retroactive increase in commission rates , without prior consultation with the Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By discriminating in regard to the hire and tenure of employment of Lawrence H. Foley, thereby discouraging membership in a labor organization , Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section8 (a) (3) of the Act. 6. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 7. The allegations that Respondent (1) engaged in physical violence upon employees, (2) compelled its employees, under threat of discharge, to execute individual contracts, and (3 ) conspired and colluded with an attorney purporting to represent employees, for the purpose of inducing them to repudiate the Union, have not been sustained by the preponderance of the reliable, probative, and substantial evidence. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, the -undersigned hereby recommends that Respondent, C. Pappas Company, Inc., Boston, Massachusetts, and its officers, agents, successors, and assigns, shall : °D See N. L. R. B. v. Express Publishing Company, 312 U. S. 426; May Department Stores v. N. L. it. B., 326 U. S. 376. 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from : (a) Refusing to bargain collectively with Distillery, Rectifying and Wine Workers International Union, affiliated with the American Federation of Labor, as the exclusive representative of all the employees within the aforesaid appropri- ate unit, and from taking any unilateral action, without prior consultation with the said Union, with respect to rates of pay, wages, hours, and other conditions of employment ; (b) Discouraging membership in Distillery, Rectifying and Wine Workers International Union, affiliated with the American Federation of Labor, or in any other labor organization of its employees, by discharging or refusing to reinstate any of the employees, or in any other manner discriminating in regard to their hire and tenure of employment, or any term or condition of employment; (c) Interrogating its employees concerning their union affiliation, activities, or sympathies, or in any other manner interfering with, restraining, or coercing its employees in the exercise of the rights to self-organization, to form labor organizations, to join or assist Distillery, Rectifying and Wine Workers Inter- national Union, affiliated with the American Federation of Labor, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the undersigned finds will ef- fectuate the policies of the Act : (a) Upon request, bargain collectively with Distillery, Rectifying and Wine Workers International Union, affiliated with the American Federation of Labor, as the exclusive representative of all the employees within the aforesaid appro- priate unit with respect to rates of pay, wages, hours of employment, or other conditions of employment, and, if an understanding is reached, embody such under- standing in a signed agreement ; (b) Offer Lawrence H. Foley immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges ; (c) Make whole the said Lawrence H. Foley for any loss of earnings he may have suffered by reason of Respondent's discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned from December 27, 1946, the date upon which he was discriminatorily discharged, to the date of the offer of reinstatement, in addition to such sums as he would have received, absent the discrimination against him, as additional commission, by reason of the retroactive increase in rates of commission, for the months of November and December 1946, less his net earnings 81 during said period ; (d) Post at its office and warehouse in Boston, Massachusetts, copies of the notice attached hereto marked "Appendix A." Copies of said notice, to be fur- nished by the Regional Director for the First Region, shall, after being duly signed by Respondent's representative, be posted by Respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive dais thereafter in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material ; (e) Notify the Regional Director for the First Region in writing within ten (10) days from the date of the receipt of this Intermediate Report what steps Respondent has taken to comply therewith. 81 See footnote 57. supra. C. PAPPAS COMPANY, INC. 799 It is further recommended that unless on or before ten (10) days from the receipt of this Intermediate Report, Respondent notifies said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring Respondent to take the action aforesaid. It is further recommended that the complaint, insofar as it alleges that Respond- ent (1) engaged in physical violence upon employees, (2) compelled its employees, under threat of discharge, to execute individual contracts, and (3) conspired and colluded with an attorney purporting to represent employees, for the purpose of inducing them to repudiate the Union, be dismissed. As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board, Series 5, effective August 22, 1947, any party may, within twenty (20) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C., an original and six 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 mo- tions or objections) as he relies upon, together with the original and six copies of a brief in support thereof ; and any party may, within the same period, file an original and six copies of a brief in support of the Intermediate Report. Imme- diately upon the filing of such statement of exceptions and/or briefs, the party filing the same shall serve a copy thereof upon each of the other parties. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.85. As further provided in said Section 203.46, should any party desire permission to argue orally before the Board, request there- for 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. In the event no Statement of Exceptions is filed as provided by the aforesaid Rules and Regulations, the findings, conclusions, recommendations, and recom- mended order herein contained shall, as provided in Section 203.48 of said Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections and exceptions thereto shall be deemed waived for all purposes. IRVINE RonosIN, Trial Examiner. Dated June 23, 1948. 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 interrogate our employees concerning their union affiliation, activities, or sympathies, or in any other 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 Distillery, Rectifying and Wine Workers International Union, affiliated with the American Federation of Labor, 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. 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL O '5Z to Lawrence H. Foley immediate and full reinstatement to his former position or substantially equivalent position, without prejudice to his seniority and other rights and privileges, previously enjoyed, and make him whole for any loss of earnings suffered as a result of the discrimination against him. WE WILL BARGAIN collectively upon request with the above-named Union as the exclusive representative of all the employees in the bargaining unit de- scribed herein with respect to rates of pay, wages, hours, and other conditions of employment, and, if an understanding is reached, embody such understand- ing in a signed agreement. The bargaining unit is: All wholesale liquor salesmen employed by Respondent at its Boston office, excluding executives, office and clerical employees, and supervisors within the definition of the Act, as amended. WE WILL NOT take any unilateral action, without prior consultation with above-named Union, with respect to rates of pay, wages, hours, and other con- ditions of employment, affecting the employees in the aforesaid unit. 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 member- ship in or activity on behalf of any such labor organization. C. PAPPAS COMPANY, INC., Employer. Dated------------------------ 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.