Superior Engraving Co.

In the Matter of SUPERIOR ENGRAVING COMPANY and CHICAGO PHOTO- ENGRAVERS' UNION No. 5 OF THE INTERNATIONAL PHOTO-ENGRAVERS' UNION OF N. A. (A . F. or L.) Case No. 13-C-2774.Decided April 28,1949 DECISION AND ORDER On May 28, 1948, Trial Examiner Wallace E. Royster issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take 'certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices, and recommended dismissal as to them. Thereafter, the Respondent, the Union, and the Board filed exceptions to the Inter- mediate Report and supporting briefs. The Board 1 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 briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner except insofar as they are inconsistent with the Decision and Order herein. 1. The Triar Examiner found, and we agree, that the Respondent dominated and interfered with the Independent Photo Engravers' Association, and contributed support to it in violation of Section 8 (1) and (2) of the Act. Shortly after the certification of the Union on October 13, 1943, the Respondent, through President Conforti, persuaded employee Joseph Busse to become its agent in forming an inside organization at the Respondent's plant. Through Busse, Con- forti disparaged the Union to the Respondent's employees, informed them that they could not hope for wage increases unless they got rid of the Union and set up an organization among themselves, and assured them that such an organization would be cheaper for them and would i Pursuant to the provisions of Section 3 (b) of the Act, the Board has- delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Mem- bers Houston and Murdock]. 83 N. L. R. B., No. 29. 215 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD get them more benefits. On occasion, Conforti directly informed his employees that he could do as much and more for them than the Union could, and that by not joining the Union, they would save paying union dues. Busse, at Conforti's request, also informed Conforti about which employees were union members: Conforti permitted Busse un- limited use of the Respondent's facilities and personnel to prepare notices, petitions, and duplicates. Although the Trial Examiner makes no finding on this question, we are convinced, upon the entire record, that Conforti permitted and encouraged circulation of the March 6, 1944, petition disavowing the Union, as well as collection of dues for the Independent in the plant during working hours. Throughout the entire period of organization, Busse acted con- stantly on the instructions of Conforti. It was Conforti who, in July 1944, suggested that a formal organization might be more successful in gaining Board recognition than the original informal committee had been, and who admittedly supplied the name of a lawyer experienced in chartering independent labor unions, When the Board dismissed the Independent's petition based on the August 31, 1944, recognition demand, Conforti admittedly supplied the Independent with the name of a Chicago Tribune newspaper reporter so that the Independent was able to get publicity on what Conforti termed a "lousy decision." Significantly, while several of the Respondent's employees in- dividually asked for wage increases , no demand for a wage increase was ever made by the Independent, which limited itself to requests for recognition. The Respondent then used these requests in its at- tempts to rid itself of the Union. Thus in June 1944, Conf6rti pre- sented the March 6, 1944, petition disavowing the Union to the public member of the Regional War Labor Pane1,2 and, later that summer, to the entire panel, in an attempt to support an attack on the majority status of the Union, although at that time the Union's certification was not yet 8 months old. In July 1944, Conforti filed with the Board an employer petition, based on the March 6 document. When this peti- tion was administratively dismissed, Conforti, through Busse; stage- managed two petitions seeking certification of the Independent, both of which were also administratively dismissed. In September 1945, Conforti, through Busse, induced the Independent to file yet another petition for certification, which the Respondent joined with another employer petition. These petitions were consolidated for hearing, and were thereafter dismissed.3 Finally, in May 1946, the Respondent filed a petition for decertification of the Union, citing as one of the grounds for its petition the existence of the1Independent. 2 This presentation of the petition to only one of the panel membeis caused the labor member to resign in protest, and necessitated the formation of a new panel a Matter .of Superior Engraving Company, 67 N L. R. B. 37. SUPERIOR ENGRAVING COMPANY 217 Like the Trial Examiner, we find no merit in the Respondent's denial of its responsibility for Busse's actions. Busse's testimony that the Respondent used.him as a too] to organize and dominate the Independ- ent, and paid him well for his efforts, is supported by Confortils admission that in February 1944 he bought Busse an $80 suit and a hat, and that during 1944 he gave him war bonds having a cash value of $500. Conforti claimed that he gave Busse the clothes to cheer him up after he had been on a drinking bout and was financially straitened, and that he gave him the bonds to keep him sober for a year. lire find this explanation so improbable as to be unworthy of belief, particularly in view of the fact that, according to Conforti, Busse not only failed to keep his promise of sobriety, but actually demanded and collected one installment of his gift in an inebriated condition. Moreover, Conforti admitted that he did not make gifts to other employees. In view of the facts set forth above, we concur in the Trial Ex- aminer's finding that the Respondent dominated and interfered with the Independent, and contributed support to it, in violation of Section 8 (1) and (2) of the Act. We also find that the Respondent violated Section 8 (1) of the Act by interrogating Busse concerning member- ship in the Union, and by promising benefits to the employees if they would refrain from joining the Union. 2. The Trial Examiner found, and we agree, that the Respondent refused to bargain with the Union in violation of Section 8 (1) and (5) of the Act. Although the Trial Examiner dated this refusal to bargain from the conclusion of the War Labor Board proceedings in November 1945, we find that the Respondent manifested a lack of good faith in its dealings with the Union as early as March 1944, when it sponsored and encouraged a disavowal of the Union by its employees, as set forth above. This lack of good faith in its relations with the Union continued to be manifested by the Respondent's role in the for- mation of the Independent in August 1944, and by its subsequent par- ticipation in the affairs of the Independent. By these illegal activi- ties, the Respondent was plainly attempting to establish a rival organi- zation in an effort to undermine the Union, and thereby eliminate its obligation to bargain with the Union. Accordingly, we find that, by sponsoring and encouraging a disavowal of the Union, by forming a rival organization, and by participating in the affairs of this rival organization, in violation of Section 8 (1) and (2) of the Act, the Respondent also violated Section 8 (5) of the Act.4 We therefore find 4 N. L. it. B. v. Ellis-Klatscher & Co., 142 F. (2d) 356 (C. A. 9), enforcing 40 N. L. R. B. 1037 ; Matter of Exact Level & Tool Mfg. Co., Inc., 66 N. L. R. B. 1238. 218 DECISIONS' OF NATIONAL LABOR" RELATIONS BOARD that the Respondent's refusal to bargain with the Union commenced in March 1944. The Respondent admits that it has refused to bargain with the Union since the conclusion of the War Labor Board proceedings, but defends its refusal on the ground that the Union , by its own activities, had lost the support of the majority of Respondent 's employees. Having committed unfair labor practices , however, at a time when the Union was the established bargaining representative of its em- ployees,6 the Respondent is precluded from attributing the Union's alleged loss of majority to the Union's own actions,6 for under such circumstances the Union's alleged loss of majority is conclusively pre- sumed to be due to the Respondent 's unfair labor practices.' The Union's alleged loss of majority therefore does not constitute a defense to the Respondent's refusal to bargain. - Even had the Respondent not violated Section 8 (1) and (2) of the Act, it was precluded, by virtue of the doctrine of the Allis-Chalmers case," from refusing to bargain with the Union at the conclusion of the War Labor Board proceedings . In order that a Union might not be penalized for resorting to the orderly procedures of the War Labor Board, the Board declared , in that case, a policy that, in computing the 1-year period during which we recognize that a union is entitled to undisturbed enjoyment of its exclusive bargaining status, we will disregard whatever time is consumed by proceedings before the War Labor Board. The instant case was certified to the War Labor Board on March 4, 1944, after contract negotiations had broken down, and after efforts of the United States Conciliation Commissioner had failed to bring the parties together on the disputed issues of union security, grievance procedure, indenture of apprentices, overtime premiums, and wages.9 Therefore, at the conclusion of the War Labor Board hearings in October 1945, the Union was entitled to undisturbed recog- nition as the exclusive bargaining agent of the Respondent 's employees for approximately 7 more months ,"' and we so held in our previous 5 We disagree with the Trial Examiner 's statement that "ordinarily the Union ' s majority status would not be presumed to continue beyond a year following the election." The pre- sumption of majority, conclusive during the year following the certification , "continues until circumstances arise which indicate that it no longer holds true." Matter of Bethle- hem Steel Company, 73 N. L. R. B. 277 ; Matter of Dorsey Trailers, Inc., 80 N. L. R. B. 478. 6 As pointed out below , we find that the evidence does not establish the Respondent's claim that a number of its employees quit its employ at the request of the Union. ' Matter of Wilson & Co., Inc., 67 N. L. R. B. 662; Matter of Fine Art Novelty Corpo- ration, 54 N. L. R. B. 480. 8 Matter of Allis-Chalmers Manufacturing Company, 50 N. L. R. B. 306. 0 Inasmuch as the Respondent had insisted at the beginning of the bargaining negotiations that all, intermediate agreements should be tentative until final agreement was reached, no inference adverse to the Union , as suggested by the Trial Examiner, can be drawn from-the Union's failure to obtain a partial contract or to process grievances. - 10 After the Regional War Labor Board had handed down its decision , the Respondent appealed to the National War Labor Board . Nevertheless it refused to enter into a con- SUPERIOR ENGRAVING COMPANY 219 decision involving the same issue and the same parties.- We did not find any merit then, and we find no merit now, in the Respondent's contention that the Allis-Chalmers doctrine should not be applied to this case. Although, like the Trial Examiner, we conclude that the Respondent violated its duty to bargain with the Union, the basis for our conclusion differs from that of the Trial Examiner. While we agree with the Trial Examiner that the evidence does not establish that the Respond- ent's employees quit their jobs at the behest of the Union, we disagree with his finding that the Union, in November 1944, ordered the Re- spondent's employees to slow down and to refuse to work overtime. Although it is possible that the Respondent's employees, made restless by the protracted bargaining negotiations, were less cooperative than theretofore, no credible evidence was introduced that this non-coopera- tion was directed by the Union. The Trial Examiner's finding that the Union had done so is based solely on the testimony of Henry Dom- browski. The Trial Examiner himself discredits Dombrowski in connection with another incident involving the alleged slow-down, and Henry Dombrowski admitted on the witness stand that he had lied in his testimony before the War Labor Board concerning his own par- ticipation in the alleged slow-down. His testimony in the instant proceeding is contradicted by witnesses otherwise specifically credited, as well as by others concerning whom the Trial Examiner made no credibility findings. While Conforti charged that the refusal to work overtime continued until March 1944, the records he produced to support his charge cov- ered a period ending early in January 1944. This supports the testi- mony of the witnesses who testified that November and December were usually slow months, and that their failure to work overtime dur- ing that period was due to the slow season and not to any concerted refusal on their part to work overtime. On the basis of the record, we find that the Trial Examiner was clearly in error when he credited Henry Dombrowski's testimony concerning the slow-down and refusal to work overtime.12 _ In view of all the facts outlined above, we find that since October 18, 1943, the Union has been the exclusive bargaining representative of tract with the Union in accordance with the directive handed down by the National War Labor Board. " Matter of Superior Engraving Company, supra. u In view of our finding that the Union did not order the Respondent 's employees to quit, to slow down, or to refuse to work overtime , we find it unnecessary to pass upon the Trial Examiner's holding that the Allis-Chalmers doctrine applies even where a union has resorted to self-help before submitting a dispute to the War Labor Board. Standing by itself the letter of Gruber , president of the Union , to the Respondent 's customers, suggesting that they have their printing done by union shops, is too insignificant a form of self-help, to necessitate a resolution of this issue. 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Respondent's employees, and that the Respondent has, since about March 1944, failed and refused to bargain in good faith with the Union as the exclusive representative of its employees, in violation of Section 8 (1) and (5) of the Act. It is stipulated' that the Respondent had given its employees several wage increases between January 1, 1946, and August 11, 1947, with- out consulting the Union. As we have found that during that period the Union was the exclusive bargaining representative of the em- ployees of the Respondent, these wage increases constituted further, violations of Section 8 (1) and (5) of the Act. 3. We agree with the Trial Examiner's finding that the termina- tion of employment of Charles Burger was not in violation of Section 8 (1) and (3) of the Act. We disagree, however, with the Trial Ex- aminer's rationale and with his conclusion that Burger was discharged. Conforti admitted that he knew which employees were the union lead- ers. He had accused several of them of a slow-down or refusal to work overtime without discharging any of them. It is, therefore, un- likely that he discriminatorily discharged Burger, whose activity on behalf of the Union was limited to membership, and whom Conforti had not accused of any misconduct. We believe Conforti's testimony that Burger quit of his own accord. This is borne out of Conforti's testimony at the hearing, before the charge and complaint were amended to allege Burger's discriminatory discharge, that Burger was among those employees who had quit his employ, as well as by Bur- ger's failure for 4 years to notify either the Union or the Board of his claim that he had been discharged for union activities. ORDER Upon the entire record in this 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, Superior Engrav- ing Company, Chicago, Illinois, its officers, agents, successors, and as- signs, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with Chicago Photo- Engravers' Union of the International Photo-Engravers' Union of N. A. (A. F. of L.), as the exclusive representative of all the employees in its photo-engraving department at its, Chicago, Illinois, plant, excluding shipping clerks, errand boys, janitors, guards, and super- visors within the meaning of the Act 13 " we have altered the wording of the description of th^ appropriate unit agreed to by the parties to make it conform to the language of the Act , as amended SUPERIOR ENGRAVING COMPANY 221 (b) Dominating and interfering with the formation or administra- tion, or contributing support to, Independent Photo Engravers Asso- ciation, or any successor thereto, or any other labor organization of its employees ; (c) Recognizing Independent Photo Engravers Association or any successor thereto, as the representative of any of its employees for the purposes of collective bargaining with respect* to grievances, labor disputes, wages, rates of pay, hours of work, or other conditions of employment; (d) Offering or giving gifts to any of its employees in order to influence their activities or attitude with respect to Chicago Photo- Engravers' Union No. 5 of the International Photo-Engravers' Union of N. A. (A. F. of L.), or Independent Photo Engravers Association , or any other labor organization of its employees; (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist Chicago Photo-Engravers' Union No. 5 of the Inter- national Photo-Engravers ' Union of N. A. (A. F. of L.), or any other labor organization, to bargain collectively through representa- tives of their own choosing and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion, 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, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which we find will effec- tuate the policies of the Act : (a) Upon request, bargain collectively with Chicago Photo- Engravers' Union No. 5 of the International Photo-Engravers' Union ,of N. A. (A. F. of L.) as the exclusive representative of all the em- ployees in its photo-engraving department at its Chicago, Illinois, plant, excluding shipping clerks, errand boys , janitors, guards, and .supervisors within the meaning of the Act; - (b) Completely disestablish Independent Photo Engravers Asso- ciation, or any successor thereto , as an organization purporting to represent its employees for purposes of collective bargaining; (c) Post at its plant at Chicago, Illinois, copies of the notice at- tached hereto, marked "Appendix A." 14 Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, 14 In the event this Order is enforced by decree of a United States Court of Appeals, there shall be inserted in the notice before the words, "A DECISION AND ORDER," the words, "A DECREE OF THE UNITED STATES COURT 01 APPEALS ENFORCING." 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 conspicu- ous places, including all places where notices to employees custom- arily are posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material; (d) Notify the Regional Director for the Thirteenth Region in writing, within ten (10) days from the date of this order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the Respondent discharged Charles Burger in violation of Section 8 (1) and (3) of the Act, be, and it hereby is, dismissed. APPENDIX A NOTICE To ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE HEREBY DISESTABLISH Independent Photo Engravers Associ- ation as an organization purporting to represent any of our em- ployees for the purpose of dealing with us concerning grievances, labor disputes, wages, rates of pay, hours of employment , or other conditions of employment, and we will not recognize it or any successor thereto for any of the above purposes. WE- WILL NOT dominate or interfere with the formation or ad- ministration of any labor organization, or contribute support to it. WE WILL BARGAIN collectively, upon request, with CHICAGO 'PHOTO-ENGRAVERS' UNION No. 5 OF THE INTERNATIONAL PHO'ro- ENGRAVERS' UNION OF N . A. (A. F. OF L.) as the exclusive repre- sentative of all the employees in the bargaining unit described herein with respect to rates of pay, hours of employment, or other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargain- ingunitis: All employees in the photo-engraving department, excluding ship- ping clerks, errand boys, janitors, guards, and supervisors within the meaning of the Act. WE WILL NOT, by gifts or promises of benefit, encourage our-em- ployees to favor or disfavor any labor organization. SUPERIOR ENGRAVING COMPANY 223 WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right of self-organ- ization, to form labor organizations, to join or assist CHICAGO PHOTO-ENGRAVERS' UNION No. 5 OF THE INTERNATIONAL PHOTO- ENGRAVERS' UNION OF N. A. (A. F. OF L.) or any other labor or- ganization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, and to refrain from any or all of such activities, except to the ex- tent 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. All our employees are free to become or remain members of this union or any other labor organization. SUPERIOR ENGRAVING COMPANY, Employer. By------------------------------ (Representative ) (Title) Dated-------------------- 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. Herman J. DeKoven, Josef L. Hektoen, and Malcolm Easterlin, all of Chicago, Ill., for the General Counsel. Mr. Joseph M. Jacobs, of Chicago, Ill, for the Union. Mr. Otto A . Jaburek, of Chicago, Ill., for the Respondent. STATEMENT OF THE CASE Upon a charge dated January 28, 1946, and an amended charge dated August 12, 1947, filed by Chicago Photo-Engravers' Union No. 5 of the International Photo-Engravers ' Union of N. A . (A. F. of L.), herein called the Union , the Na- tional Labor Relations Board , herein called the Board, through its Acting Regional Director for the Thirteenth Region ( Chicago, Illinois ), issued its com- plaint dated August 13, 1947 , against Superior Engraving Company, Chicago, Illinois, herein called Respondent , alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and ( 5) and Section 2 (6) and (7) of the National Labor Re- lations Act, 49 Stat. 449. Under date of October 27, 1947, an Order Amending Complaint with respect to the allegation concerning the appropriate unit was issued over the signature of the Regional Director for the Thirteenth Region. Copies of the charge , the amended charge, the complaint and the Order Amend- ing Complaint together with notice of hearing were served upon the Union and Respondent. As amended, the complaint alleged in substance that Respondent had refused and was refusing to bargain with the Union , the majority representative of its employees in an appropriate unit, in violation of Section 8 (5) and (1) of the Act. 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In its answer, dated December 31, 1947, Respondent admitted to a continuing refusal to bargain with the Union, but asserted that the Union was not a majority representative of Respondent's employees, and thus, that the refusal did not constitute a violation of the Act. Pursuant to notice, a hearing was held in Chicago, Illinois, before Wallace E. Royster, the undersigned Trial Examiner, on various dates from January 20 through April 1, 1948. The General Counsel' of the Board, the Union, and Re- spondent were represented by counsel and participated in the hearing. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. On February 13, 1948, the Union filed an amended charge upon the basis of which the General Counsel moved to amend the complaint so as to allege that Respondent had (1) dominated and interfered with the formation and administration of, and con- tributed support to, Independent Photo Engravers Association, an unaffiliated labor organization, (2) discharged in late 1943, one Charles Burger because of his membership in or affiliation with the Union, (3) since October 1943, advised employees that it would never sign a contract with the Union and would close its plant before doing so, and (4) interrogated employees concerning union membership, instigated and permitted circulation of anti-union petitions on its time and property, and promised benefits to those of its employees who either refused to join or withdraw from affiliation with' the Union. The motion to amend was granted'over objection by Respondent 2 and a recess was had from ),ebruary 13 to February 25, 1948, for the purposes of obtaining service upon Independent Photo Engravers Association, herein called the Association, and to enable Respondent to answer and prepare its defense to the additional issues. Although served with the charge, the amended charges, the complaint as amended, and notice of hearing, the Association did not appear at the hearing. On Febru- ary 23, Respondent filed its answer to the complaint as amended, denying the further allegations. All parties were granted until May 1, 1948, for the purpose of filing briefs. Briefs have been received from Respondent and the Union. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is an Illinois corporation with its principal office and place of business in Chicago, Illinois, where it is engaged in the manufacture of engraving plates. In the conduct of its business during 1946, Respondent purchased raw materials valued in excess of $50,000, 25 percent of which originated in States other than the State of Illinois. During the same period, Respondent's products exceeded $200,000 in value. Ten percent of the production was shipped to points outside the State of Illinois. Respondent concedes that at all times material to this proceeding it was engaged in commerce within the meaning of the Act. ' Represented by a staff attorney who is hereinafter referred to as the General Counsel. z With particular reference to the provision in the Act as amended on June 23, 1947, concerning the filing of a charge within 6 months of the happening of the event, I find that this limitation is not to be retrospectively applied and that a charge filed within 6 months following August 22, 1947, satisfies the statutory requirement. Sohn v. Wateraon, 84 U. S. 596. SUPERIOR ENGRAVING COMPANY 225 II. THE ORGANIZATIONS INVOLVED Chicago Photo -Engravers' Union No. 5 of the International Photo-Engravers' Union of N. A. (A. F. of L.), affiliated with the American Federation of Labor, and Independent Photo Engravers Association unaffiliated , are labor organiza- tions admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. The context in which they occurred For about 5 years the Union represented Respondent's employees until a strike in 1930 terminated this relationship. Sometime in 1937. Respondent recognized Engravers Guild, an unaffiliated labor organization, as the representative of its employees. This organization which ceased to function in 1943, was found by the Board to have been formed in violation of Section 8 (2) of the Act.' Sometime in August 1943, Edward J. Conforti, Respondent's president, met with Lawrence Gruber and William Schragle, representatives of the Union, and refused their request that he recognize the Union as the representative of Re- spondent's employees.' Shortly thereafter, however, Respondent and the Union entered into an agreement for consent election and in consequence, an election was conducted by Board agents on October 11, 1943. The Union received 23 of the 36 valid votes cast. On October 20, 28, and November 18, 1943, Respondent and the Union discussed terms of a contract proposed by the Union and reached tentative agreement on the Union's jurisdiction, workweek, shifts and shift hours, reduced working schedule, wages, vacation program, premium pay for work on Sundays and holidays, call-in pay, ratio of apprentices to journeymen, and rates of pay for apprentices. Other issues, particularly union security, cer- tain aspects of overtime pay, further provisions affecting apprentices, a portion of the grievance procedure, and the duration of the agreement remained in dispute. The Union rejected Respondent' s offer of a maintenance-of-membership provision with a 15-day escape clause. At the conclusion of the November 18 meeting, Gruber, president of the Union's local, announced that an impasse had been reached. On December 6, the parties met with a U. S. Commissioner of Conciliation but no further agreement resulted. On March 4, 1944, the issues were certified to the National War Labor Board. No agreement to accept WLB recommendations was reached nor does it appear that the parties agreed as to the issues to be heard by that tribunal. However, the WLB noted the tentative agreement above-stated and confined its attention to the matters actually in dispute plus a further issue as to wages which sub- sequently arose. Hearings before a WLB panel were held in the summer of 1944. After the WLB panel report was issued in December 1944, the Union moved for a hearing before a Division of the Regional WLB. Such hearing was held in March 1945, and sometime before May 17, 1945, the Division of the RWLB issued a "Report and Recommendation." On the latter date the Regional WLB issued a "Directive Order" which Respondent petitioned the National WLB to review. On October 18, 1945, the National WLB issued its Directive Order affirming, with slight modification, the order of the Regional WLB issued May 17. By its terms, the May 17 order, as modified, required the parties to enter into a contract con- 3 Matter of Superior Engraving Company, 61 N. L. R. B. 37. 4 Conforti testified, and Gruber denied, that he was then told by the Union that recog- nition would avoid trouble and expense. The statement, if made, is not material to the Issues. 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD taming the same clause concerning union security as theretofore established by contract with the Engravers Guild, deciding the payment for overtime and indenture of apprentices dispute, and referring the issue as to wages back to the parties for further bargaining. The order did not act upon Respondent's claim,, raised at the outset of the WLB hearings in June 1944, that the Union no longer, represented a majority of the employees. On November 10, 1945, the Union sub- mitted a proposed contract incorporating, allegedly, those matters upon which agreement had been reached in October and November 1944, along with those matters upon which the WLB had ruled. Respondent did not reply to this proposal, thereafter unilaterally granted wage increases to individual employees, and since continually has refused to recognize the Union as bargaining repre- sentative of the employees. During the period from the election until the final order of the WLB, other, events bearing upon the status of the Union took place. In March 1944, 21 of the then approximately 30 employees signed a statement which was delivered to President Conforti, repudiating the Union as bargaining representative and expressing a desire to deal with Respondent through an employee committee. Seven additional employees signed in the next 2 months. Upon the basis of these signatures, Respondent, on July 14, 1944, filed an RE petition with the Board requesting an investigation to determine whether the employee commit- tee or the Union was the bargaining representative. The petition was dismissed by the Board's Regional Director on the day following. Upon appeal, his action was sustained by the Board on September 7. . In August 1944, the Association; a labor organization claiming to represent Respondent's employees, was formed and on August 31 filed its petition for certification. The Regional Director's action in dismissing this petition was, upon appeal, sustained by the Board on November 13. On February 28, 1945, the Association again petitioned the Board for certification. The petition also was dismissed and the dismissal sustained by the Board upon appeal. On September 1, 1945, Respondent filed a second RE petition. A week later, the Association filed its third petition. After hearing both were dismissed by the Board on April 29, 1946.6 Finally, on May 31, 1946, Respondent filed a petition for "De-Certification of Chicago Photo-Engravers Union, Local No. 5," which was denied by the Board on July 9 next. B. Domination and control of the formation and administration of the Association Evidence that Respondent inspired the formation of and dominated the ad- ministration of the Independent was adduced through Joseph Busse, Respond- ent's one-time employee. Busse testified that shortly after the election and on a number of subsequent occasions, President Conforti told him not to worry about certification of the Union for Busse had a lifetime job and that he, Conforti, would never sign a contract with the Union. Other witnesses for the General Counsel also testified that Conforti had expressed a determination not to sign a contract. Conforti denied the statement but admitted stating repeatedly that he would not sign a closed-shop contract. Considering that in his conversations with Busse, Conforti generally referred to Busse's prospect of permanent employment, I ani . convinced that both were concerned primarily with the Union's demand , for a form of closed shop, I believe, , therefore, Matter of Superior Engraving Company, 67 N. L. R. B. 938 SUPERIOR ENGRAVING COMPANY 227 that Conforti's testimony is more accurate on this point. It is consistent, fur- thermore, with Respondent's position in bargaining during this period shortly after the election. The Union and Respondent were not really far from agree- ment, the closed-shop issue was the principal matter in dispute. Busse testified credibly that he and Conforti frequently discussed the Union, that Conforti occasionally suggested that the employees should form their own organization, and that he would then grant them all the advantages the Union could gain without the cost of union dues.' Busse testified credibly that early in March 1944, Conforti gave him a form of petition which read,' We the undersigned, photo-engravers, employed by the Superior En- graving Co., Located at 215 W. Superior St., Chicago, Ill. Do hereby wish to convey to the management of the Superior Engraving Co., the War Labor Board., the National Labor Relations Board., or any other agency necessarily envolved, or interested, that. 1. We do not desire the Chicago Photo Engravers Union, No. 5 of the American Federation of Labor, to represent us as our bargaining agency in future negotiations with the management of the Superior Engraving Co. 2. We desire to negotiate with the management of the Superior En- graving Co., through our own efforts, and, or, a committee of employees. 3. We herewith request of the management of the Superior Engraving Co., the War Labor Board., the National Labor Board, or any other agency involved or interested, recognition, and approval of this our wish. (Spell- ing and punctuation as in original.) Busse, with the assistance of employees Sigmunt Dombrowski and Andrew Golabek, circulated this among Respondent's employees and in a short time se- cured the signatures of 21 of them. The petition was then presented to Con- forti who accepted it with the comment that he could do nothing for them as the dispute with the Union was then before the WLB. In late May, either Busse or Golabek recovered the petition from Conforti and after obtaining 7 additional signatures returned to him. Conforti exhibited the petition at the WLB hearing in June, to indicate that the Union had lost its majority and the RE petition filed by Respondent with the Board on July 14, 1944, was based upon it. Almost immediately after the dismissal of that petition, Conforti and Busse discussed the matter. According to Busse's credited testimony, Conforti re- marked that the dismissal was not surprising, that everything would still be all right, and that he would not sign a contract with Local 5 8 Conforti sug- gested that he "get the boys together in a real band" and obtain an attorney. Following further advice from Conforti, Busse invited Sigmunt Dombrowski, Henry Dombrowski, Howard Frederickson, and Ed Molnar, all Respondent's employees in the appropriate unit, to meet with him that night, telling all but Molnar that Conforti wanted them "to take and get ourselves organized." The five employees met at a restaurant that evening. In the words of Busse, 6 Conforti admitted that he and Busse had frequent conversations and that both ex- pressed opposition to the Union. He denied suggesting that a rival union be formed ' Employee Golabek changed some of the wording in the petition in minor particulars. 8 Here, I find, Conforti was not referring only to a closed-shop contract. Respondent had clearly refused to bargain with the Union during the WLB hearings in June 1944, as will appear. 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Well, I told them Mr. Conforti had told me that we should get the union de-certified and get ourselves certified and he would take and be at liberty to give us raises in pay, and it was to our advantage at the time, as the union was certified as our bargaining agent and in a way has us tied up, according to Mr. Conforti's claims, and as long as they were certified, we could get noth- ing, because he wouldn't be in violation of the Board, and he would have to be in violation of the Board and the union certification if he gave us any benefits whatsoever. . . . I told them they didn't have to worry about their jobs . . . if things fell through . . . I assured them Mr. Conforti assured me he would not sign a contract with Local 5 and we did not have to worry about our present position or future. The five agreed to call a general meeting of employees to carry out this program. Busse reported the result of the meeting to Conforti who suggested that the general meeting be held as soon as possible, and at the nearby Y. M. C. A., vetoing Busse's suggestion that it,be held in the plant. Conforti also advised Busse "to pick the fellows and to start the organization and get it running"-but that Conforti's participation must be kept secret. One of the office employees typed a notice of meeting which Busse posted in the plant at the time clock. The general meeting was held on July 26, Busse was elected temporary chairman and a com- mittee was selected to assist him in obtaining an attorney to advise and assist in the formation of an independent union. Busse reported the result of the meet- ing to Conforti who gave Busse the name of an attorney, David Tressler,° in- structed him what to say to Tressler, and suggested that Busse exhibit to Tressler the petition signed by the employees in March and May. On July 29, Busse, with employees Sigmunt Dombrowski, Howard Frederickson, and Andrew Golabek, met with Tressler. On July 31, Busse reported to Conforti that Tressler had agreed to draw bylaws and a constitution and had advised the group to conduct regular monthly meetings and assess dues. Conforti expressed satisfaction and abjured Busse to follow Tressler's instructions faithfully. Within a few days a constitution, bylaws, and a form of demand for recognition were received from Tressler. Busse exhibited them to Conforti who advised him to follow Tressler's instructions, to get employee signatures on the petition and to collect dues and initiation fees. On August 2, the employees again met and signed a demand for recognition.10 Busse remained as chairman of the bargain- ing committee. Conforti acknowledged receipt of the Association's demand for recognition on August 10, 1944, but refused to grant it.11 On August 31, 1944, February 28, 1945, and September 8, 1945, the Association filed petitions for cer- tification with the Board, all of which were dismissed The Association was still in existence at the time of the hearing. There is no evidence that subse- quent to the filing of the last petition it has actively sought to represent Respond- ent's employees. This evidence shows conclusively, of course, that Respondent dominated, assisted and contributed support to the Association in violation of Section 8 (2) of the Act. I so find. Respondent argues that Busse is not a credible witness and that his testimony should be rejected I have credited the testimony of Respondent's witnesses, as against that of Busse, on several points of substance. 0 Conforti admitted that he supplied Tressler's name but testified he did so reluctantly and only at Busse's repeated insistence that he do so. 10 Busse's testimony that this demand was circulated and signed in the shop during working time is not credited 11 This document and a number of others pertaining to the Association were photostated in the plant pith Conforti's permission without cost to the Association. SUPERIOR ENGRAVING COMPANY 229 He testified, for example, that he secured signatures to the petition which was presented to Conforti on August 10, during working hours in the plant. I have found otherwise He also testified that dues for the Association were collected on working time in the plant I have made no finding in that respect. On the really crucial issue of Respondent's sponsorship of the Association, Busse's testimony is so supported by attendant circumstance as to be convincing Conforti admitted that on February 5, 1944, he bought Busse a hat and a suit at a cost in excess of $80. Busse testified that this gift was made after discussion of the formation of an independent organization to oppose the Union. Conforti testified that Busse had complained of his financial inability to buy a suit and that he made the gift as a gesture of good will and as a means of improving Busse's morale. Busse's version is incomparably the more reasonable one During the summer of 1944, Conforti promised, and paid in installments over a period of 1 year, $500 to Busse. According to Busse this sum was to reward him for remaining in Respondent's employ and for not joining the Union. Conforti testi- fied that it was a reward to Busse in exchange for his promise to remain sober for a year. Conforti admitted that the amount was paid in full but asserted that Busse did not fulfill his promise of sobriety. Conforti's explanation certainly lacks conviction I find that these gifts were made to insure Busse's continued opposition to the Union and to stimulate his interest in establishing a rival organization Thus, they constitute a violation of Section 8 (1) of the Act. Finally, Respondent urges that Busse's testimony is motivated by spite. In the fall of 1947, several months after he had left Respondent's employ, Busse attempted, without success, to borrow $100 from Conforti. This rebuff may well have persuaded Busse to relate his story to the General Counsel and I have considered it in appraising his credibility. I have also considered the fact that passage of time often dims recollection and that Busse, Conforti, and others may have in certain instances been merely mistaken in their recollection of events. I am convinced, however, as I have found, that Busse's history of the birth and growth of the Association is true in all essential aspects and that Conforti's denial of his sponsorship of this organization is not to be credited. C The refusal to bargain 1. The appropriate unit Respondent employs and during the period of concern here has employed, from 25 to 35 skilled workers in its photo-engraving department engaged in various aspects of the photo-engraving process including photography, half-tone and four-color etching, printing, and finishing The complaint as amended alleges, Respondent's answer admits, and I find (1) that all employees in Respondent's photo-engraving department excluding shipping clerks, errand boys, and janitors, at all times material herein until August 22, 1947, constituted a unit appropriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act; and (2) that all employees in Respondent's photo-engraving department, excluding shipping clerks, errand boys, janitors, and all employees having author- ity in the interest of Respondent 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, on August 22, 1947, and thereafter constituted a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act, as amended 844340-50-vol 83-16 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The unit first described is that in which the election was conducted on October 11, 1943, and the unit described in the petitions thereafter filed by Respondent. It included at no time more than three positions which might fall within the supervisory exclusion set forth in the second unit description. 2. The representative status of the Union It is the theory of the General Counsel that the Union's status as exclusive bargaining representative won at the election on October 11, 1943, remained with it during the years following that event to the time of the hearing. This theory is based in part, at least, upon the rationale of a line of Board decisions stemming from the Allis-Chalmers case n and is buttressed strongly by the Board's dismissal of the petitions of Respondent and the Association on April 29, 1946. Thus it is contended, that, after winning the election, after reaching an impasse in bargaining, after submission of the disputed issues to the various divisions of the WLB, and after a final order from that agency, the Union is entitled as of right to continued recognition as bargaining representative until it has had opportunity to secure the benefits of collective bargaining. To hold otherwise, it is argued, would be to place a premium upon self-help during a period when industrial strife was most to be avoided, to discourage submission of disputes to the orderly process of agencies established to adjudicate such matters, and to penalize a union which in time of war did not interrupt produc- tion in an attempt to secure its demands. Respondent denies that the General Counsel's theory is sound and argues that, in any event, it is inapplicable to the facts of this case. Respondent produced a witness, Henry Dombrowski, who testified that even before the election, at an organizational meeting called by the Union, Respondent's em- ployees were told, in effect, that their employer could be persuaded to grant their demands by means of a slow-down.1e After the bargaining meeting of October 28, according to Dombrowski, he and another employee, Ashelby, were instructed by a representative of the Union that, "It is up to you fellows. When you get down to work, tell the fellows to slow up and the fellows that don't go along with you, give them the silent treatment." Dombrowski testified that he relayed this instruction to a number of employees in the shop and that he engaged in a slow-down for about a week. • Conforti testified that his employees started a slow-down about November 8 and continued the use of that tactic for about 10 days. Some individuals, ac- cording to Conforti, during this period produced at about one-third their normal rate. At a bargaining conference on November 18, Conforti complained of this practice to union representatives. According to Conforti, President Gruber suggested that the men might be "unhappy." . Conforti and Respondent's Superintendent, Kilby, testified that a number of employees refused to work overtime during the 3 months following November 8, 1943, although there had never been any such difficulty at any prior time. The combination of the slow-down and the refusal to work overtime, according to the Respondent created a critical situation in that it was frequently unable to meet the delivery requirements of its customers. "Matter of Allis-Chalmers Manufacturing Company, 50 N. L. R. B. 306. 1s I do not credit Dombrowski's testimony on this point. Not only was he contradicted by all other witnesses who attended the meeting but I regard it as highly improbable that such tactics would be discussed at a meeting held for the purpose of enlisting employee support for the Union. SUPERIOR ENGRAVING COMPANY 231 On December 3. 1943, Gruber circularized a number of photoengraving com- panies in Chicago suggesting that they solicit accounts then served by Respond- ent (a partial list of which he enclosed) and that an attempt be made to secure the services of two of Respondents salesmen. Gruber testified that he took this action in order to secure more work for those shops which were under contract with the Union. All witnesses called by the General Counsel testified that they participated in no slow-down and did not refuse to work overtime (except for reasons which had no relation to the contract dispute) and that they had received no instruc- tion from the Union in those matters: The appearance of some of these was such that their denials carried conviction and are believed. Others, however, who testified that they had worked overtime during the period in question were shown by pay-roll records not to have done so. Upon all the evidence, I find that Dombrowski was instructed by Schragle as he testified" and that some of Respondent's employees did slow-down for the 10-day period in November and refused to work overtime during the months of November and December 1943, and in January 1944, for the purpose of per- suading Respondent to accede to the Union's contract demands. I also find that the request that other companies solicit Respondent's accounts was made by Gruber for the same purpose. It does not follow, however, as counsel for Respondent urges, that the Union thereby forfeited its right to avail itself of whatever benefit might accrue to it by the application of the Allis-Chalmers doctrine. These tactics were abandoned before submission of the issues to the WLB and were not renewed. Thus the Union did submit to the peaceful procedures then established for the settlement of its dispute and did so less than 5 months following the election. Finally, Respondent contends, the Union lost its majority by deliberately withdrawing its membership from Respondent's employ. There is evidence that approximately 20 union members left their employment during the period from December 1934 to June 1944, but evidence that they did so at the direc- tion of the Union is lacking. All of these who were called as witnesses tes- tified either that they left for better paying jobs or that they were called to mili- tary service. I rejected Respondent's offer to prove by conversations between 9 individual employees and Conforti that they left because of union instruc- tion" It is perhaps more than coincidental that employees, many of them .having from 5 to 14 years of service with Respondent, should quit during a period when the Union was attempting to force Respondent to agree to certain contract proposals, but even assuming that these separations were at the Union's direction, I do not believe that such evidence alone is sufficient to destroy the Union's status. The Union established its majority on October 11, 1943, by means of an election. Evidence of repudiation or loss of majority in order to be persuasive would have to be of at least equal force. The situation which Respondent asserts existed would be analogous to one in which, shortly after designating a bargaining representative, the employees attempted to repudiate that action'' Indeed, such an attempt was made by means of the petition of March 1944. to which I have earlier adverted. This action, however, was inspired by Respondent and constituted an unfair labor practice. The Carson 1' Asbelby's denial is not credited. Schragle was stated to be unavailable as a witness and did not testify. 11 This would clearly be hearsay for the issue is not what the employee said but what instruction was given by the Union. 16 Medo Photo Supply Corp. v. N. L. R. B., 321 U. S. 678. 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pirie Scott case ' P upon which Respondent places some reliance is distinguishable if for no other reason than that the shift in allegiance there was not attributable in any degree to the employer's unfair labor practices. It may be conceded that the Union did notleize its apparent opportunity to secure a partial contract from Respondent in November 1943, leaving only the matters actually in dispute for WLB determination, thus negativing to some extent the General Counsel's contention that it has not had opportunity to secure benefits for the employees . It may further be conceded that since the election there is no evidence that the Union has ever attempted to present a grievance on behalf of the employees or indeed since December 6, 1943, even met with Respondent except in the WLB forum. It remains a fact, nonetheless , that thf Union has not been accorded a full year following its victory in the election to attempt to get a contract.18 In March 1944 , Respondent inspired a rival or- ganization and during that summer stated bluntly in the WLB hearing that it no longer recognized the Union's majority . Here was a refusal to bargain in clearest terms within the year following the election . True, the Union might then have filed a charge with the Board alleging a refusal to bargain without abandoning its action before the WLB, but so long as Respondent continued to participate in those proceedings the Union was entitled to assume that once the contract issues were decided the majority issue could be met. Finally, the question of the applicability of the Allas-Chalmers rule of decision has already been decided adversely to Respondent by the Board's decision of April 29, 1946, made upon the record in which Respondent had opportunity, at least, to litigate the contentions advanced here. In dismissing the petitions of Respondent and the Association the Board said : The Photo Engravers promptly opened bargaining negotiations after its certification and diligently took the steps open to it in securing the necessary, approval of its bargaining program by the War Labor Board. In thus resorting to the peaceable and orderly procedures of Government for settlement of the issues in dispute, it has been deprived of a reasonable opportunity to obtain for the Company's employees the benefits of collective bargaining which normally would have resulted from its certification as their bargaining representative. We are therefore of the opinion that the previous certification of the Photo Engravers and the present state of negotiations constitute a bar to this proceeding. Of course, pervading the entire period from March 1944 until the time of the hearing was Respondent's domination of and assistance to the Association. By setting up its own organization to bid for the allegiance of its employees, Respondent made bargaining by the Union impossible and unlawfully stripped the Union of its status as exclusive representative. It is immaterial under these circumstances that ordinarily the Union's majority status would not be presumed to continue beyond a Year following the election when Respondent by violating the Act made it impossible for the Union to use its status for the benefit of the employees. I find that since October 11, 1943, the Union has been and now is the exclusive bargaining representative of Respondent's employees within the meaning of Section 9 (a) of the Act. I find that on November 10, 1945, and thereafter, Respondent unlawfully refused to bargain with the Union, the majority representative of Respondent's " Matter of Carson Pine Scott cE Company, 69 N. L. R. B. 935. 18 See Matter of Con P. Curran Printing Company, 67 N. L. R. B. 1419. SUPERIOR ENGRAVING COMPANY 233 employees in the appropriate unit and that Respondent thereby violated Section 8 (5) and (1) of the Act. D. The alleged discharge.of Charles Burger Burger, having worked for Respondent in 1935 and 1936, returned to the plant in the spring of 1943, and was assigned to the night shift. Shortly before the discontinuance of that shift, in December 1943, according to his testimony, Conforti asked if he were a member of the Union. When Burger replied that he was, Conforti expressed disappointment and remarked that if he were not, lie would be given work on the day shift. A week later, Burger was given an extra week's pay and 'left Respondent's employ. Burger testified that he was discharged and so reported at that time to the Union. He immediately obtained other employment, suffered no loss in wages, and does not desire reinstatement. Conforti denied questioning Burger about his Union membership and asserted that Burger confided that he was quitting on instruction of the Union. He ad- mitted paying Burger an additional week's pay, explaining that he did so to express his gratification for the week's notice Burger had given him. I do not believe Conforti's explanation concerning the additional payment and I find that Burger was discharged. However, in view of the unexplained delay of more than 4 years in filing a charge alleging the discharge to have been discriminatory, particularly in consideration of the circumstance that Respond- ent was brought to hearing in the summer of 1944, about' 7 ,months after the discharge, upon other unfair labor practice charges filed by the Union, I do not credit Burger's account of the conversation with Conforti leading to the dis- charge. I find that Respondent did not violate Section 8 (3) and (1) of the Act by the discharge of Charles Burger. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in Section III, above, occurring in connection with the operations of Respondent set forth in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices," it will be recommended that it cease and desist therefrom and take certain affirmative action which I find will effectuate the policies of the Act. I have found that Respondent has refused and now refuses to bargain with the Union as the exclusive representative of.its employees in an appropriate unit. In order to effectuate the policies of the Act, I will recommend that, upon request, Respondent bargain collectively with the Union as the exclusive representative of its employees in the appropriate unit with respect to rates of pay, wages, hours, and other terms or conditions of employment. I have found that Respondent dominated and interfered with the formation and administration of the Association and has contributed support to it. I have also found that the existence of the Association has constituted and now con- 19 The violations found are continuing violations and since August 22 , 1947, have been violations of Section 8 (a) (1), (2 ) and (5 ) of the Act as amended by the Labor-Manage- ment Relations Act, 1947. 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stitutes a continuing obstacle to the right of Respondent 's employees to be rep- resented by the agent of their choice. In order to effectuate the policies of the Act, therefore, and to free the employees of the effects of Respondent's unfair labor practices, I will recommend that Respondent completely disestablish this Association as an organization purporting to represent Respondent 's employees. By refusing to bargain with the Union by forming and fostering the Associa- tion, and by bribing Busse in order to maintain his interest in the Association, Respondent has indicated a fixed purpose to deprive its employees of their right to be represented by the organization which they freely chose. Because this purpose exists, I believe the preventive purpose of the' Act will be thwarted unless the recommended order is coextensive with the threat. In order, there- fore, to make effective the interdependent guarantees of Section 7 of the Act, to prevent a recurrence of unfair labor practices thereby minimizing industrial strife burdening and obstructing commerce , and thus to effectuate the policies of the Act, I will recommend that Respondent be ordered to cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act. I have found that Charles Burger was not discriminatorily discharged and will recommend, therefore, that the allegation in the complaint to that effect be dismissed. Upon the basis of the above findings of fact and the entire record in the case, .I make the following : CONCLUSIONS OF LAW 1. Chicago Photo-Engravers' Union No. 5 of the International Photo-En- gravers' Union (A. F. L.) and Independent Photo Engravers Association, are labor organizations within the meaning of Section 2 (5) of the Act. 2. All employees in Respondent's photoengraving department, excluding ship- ping clerks , errand boys, janitors, and all employees having authority in the interest of Respondent to hire, transfer , suspend, lay off, recall, promote, dis- charge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if An 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, con- stitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. Chicago Photo-Engravers' Union No. 5 of the International Photo-Engravers' Union of N. A. (A. F. L.), was on November 10, 1945, and at all times since has been the exclusive representative of all the employees in such unit for the pur- poses of collective bargaining within the meaning of Section 9 (a) of the Act. 4.. By refusing to bargain collectively with Chicago Photo-Engravers' Union No. 5 of the International Photo-Engravers' Union of N. A. (A. F. of L.), as exclusive bargaining representative' of employees in the appropriate unit, Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (5) of the Act and of Section 8 (a) (5) of the Act as 'amended. 5. By dominating and interfering with the formation and administration of Independent Photo Engravers Association and by contributing support to it, Respondent has engaged in unfair labor practices within the meaning of Section 8 (2) of the Act and of Section 8 (a) (2) of the Act as amended. 6. By making gifts to Joseph Busse in order to encourage the formation of a labor organization and for the purpose of continuing his opposition to Chicago Photo-Engravers' Union No. 5 of the International Photo-Engravers' Union of N. A. (A. F. of L.), and by interfering with, restraining, and coercing its em- SUPERIOR ENGRAVING COMPANY 235 ployees in the exercise of the rights guaranteed in Section 7 of the Act Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act and of Section 8 (a) (1) of the Act as amended. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 8. Respondent did not violate Section 8 (1) and ( 3) of the Act by discharging Charles Burger. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, I recommend that Superior Engraving Company, Chicago, Illinois, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with Chicago Photo-Engravers' Union of the International Photo-Engravers ' Union of N. A. (A. F. of L.), as the ex- clusive representative of all the employees in the appropriate unit ; (b) Dominating and interfering with the formation or administration, or contributing support to Independent Photo Engravers Association , any successor thereto, or any other labor organization of its employees ; (c) Offering or giving gifts to any of its employees in order to influence their activities or attitude with respect to Chicago Photo-Engravers' Union No. 5 of the International Photo-Engravers ' Union of N. A. (A. F. of L.), or In- dependent Photo Engravers Association, or any other labor organization of its employees ; (d) In any other manner interfering with, restraining , or coercing its em- ployees in the exercise of the right to self-organization , to form, join, or assist Chicago Photo-Engravers' Union No. 5 of the International Photo-Engravers' Union of N. A. (A. F. of L.), or any other labor organization , to bargain col- lectively through representatives of their own choosing, and to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act. (a) Upon request bargain collectively with Chicago Photo-Engravers' Union .No. 5 of the International Photo-Engravers ' Union of N. A. (A. F. of L.), as .the exclusive representative of all the employees in the appropriate unit; (b) Completely disestablish Independent Photo Engravers Association, or any successor thereof, as an organization purporting to represent its employees for purposes of collective bargaining ; (c) Post throughout the plant in Chicago, Illinois, copies of the notice attached hereto, marked `'Appendix A." Copies of the notice , to be furnished by the Regional Director for the Thirteenth Region, shall , after being duly signed by Respondent's representative , be posted by it immediately upon receipt thereof and maintained by it for sixty ( 60) consecutive days thereafter , in conspicuous places, including all places where notices to employees customarily are posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced or covered by other material ; (d) Notify the Regional Director for the Thirteenth Region in writing within twenty ( 20) days from the receipt of this Intermediate Report, what steps Re- spondent has taken to comply therewith. It is further recommended that unless on or before twenty (20) days from re- ceipt of this Intermediate Report, Respondent notifies the said Regional Director 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring Respondent to take the aforesaid action. It is further recommended that the allegation in the complaint that Charles* Burger was discriminatorily discharged, 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 motions 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. Immediately 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 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 therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board. 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, con- clusions, and order, and all objections and exceptions thereto shall be deemed waived for all purposes. WALLACE E. ROYSTER, Trial Examiner. Dated May 28, 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 HEREBY DISESTABLISH Independent Photo Engravers Association as an organization purporting to represent any of our employees for the purpose of dealing with us concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and we will not recognize it or any successor thereto for any of the above purposes. WE WILL NOT dominate or interfere with the formation or administration of any labor organization or contribute support to it. WE WILL BARGAIN collectively upon request with Chicago Photo-Engravers' Union No. 5 of the International Photo-Engravers' Union of N. A. (A. F. of L.) as the exclusive representative of all employees in the bargaining unit described herein with respect to rates of pay, hours of employment or other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is : SUPERIOR ENGRAVING COMPANY 237 All employees in the photoengraving department, excluding shipping clerks, errand boys, janitors, and all employees having authority in the interest of management 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 recommei.d 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. WE WILL NOT by gifts or promises of benefit encourage our employees to favor or disfavor any labor organization. WE WILL NOT 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 Chicago Photo-Engravers' Union No. 5 of the International Photo-Engravers' Union of N. A. (A. F. of L.) or any other labor organization, to bargain collectively through representatives of their own choosing , and to engage in concerted activities for the purpose of col- lective bargaining or other mutual aid or protection. All our employees are free to become or remain members of this union, or any other labor organization. SUPERIOR ENGRAVING COMPANY, Employer. Dated------------------------- By ---------------------------------- (Representative ) ( Title) This notice must remain , posted for 60 days from the date hereof, and must not be altered , defaced, or covered by any other material.