Stedfast Rubber Co., Inc.

In the Matter of STEDFAST RUBBER COMPANY, INC. and INTERNA- TIONAL LADIES' GARMENT WORKERS' UNION, AFL Case No. 1-CA-5841.-Decided September 19, 1950 DECISION AND ORDER On June 8, 1950, Trial Examiner George A. Downing 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 Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Board 1 has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rul- ings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in the case,2 and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.3 ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Stedfast Rubber Company, Inc., and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : I Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to_ a three-member panel [ Chairman Herzog and Members Reynolds and Styles]. 2 As the record, exceptions , and brief fully present the issues involved and the positions of the parties, the Respondent's request .for oral argument is hereby denied. I The Intermediate Report contains two minor inaccuracies , neither of which affects our concurrence in the Trial Examiner 's ultimate conclusions : ( 1) The Trial Examiner states at one point that Braley . was a "production and maintenance employee" although finding properly that he was a supervisor . The apparent contradiction was clearly inadvertent, arising from the Trial Examiner's desire to describe Braley as being in the employ of Respondent. (2) As the record shows that only one letter was typed for the Independent by Respondent 's office staff, we correct the Trial Examiner's finding accordingly: Unlike the Trial Examiner , we do not rely upon Brown Company, 65 NLRB 208, in finding 8 (a) (2), as the facts in that case differ from those in the instant case. 91 NLRB No. 50. 300 . STEDFAST RUBBER COMPANY, INC. 301 (a) Dominating or interfering with the formation, or administra- tion of or contributing financial or other support to independent Rub- -her Workers Union of North Easton, or any successor thereto, or any .other labor organization of its employees; (b) Recognizing or in any other manner dealing with Independent Rubber Workers Union of North Easton, or any successor thereto, as .the representative of any of its employees for the purposes of col- lective bargaining with respect to grievances, labor disputes, wages, rates of pay, hours of work, or other conditions of employment; (c) Refusing to bargain' collectively with International Ladies' Garment Workers' Union, AFL, as the exclusive representative of all employees at its North Easton plant, excluding executives, office and clerical employees, powerhouse employees, firemen, oilers, guards, pro- fessional employees, and supervisors as defined in the Act, with re- spect to rates of pay, wages, hours of employment, and other conditions of employment; (d) In any other manner interfering with, restraining, or coercing its employees in. the exercise of their right to self-organization, to form labor organizations, to join or assist International Ladies' Gar- ment Workers' Union, AFL, or any other labor organization, to bar- gain collectively through representatives of their own choosing, and 'to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be af- fected 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) Withhold all recognition from Independent Rubber Workers `Union of North Easton, or any successor thereto, as the representative of any of its employees for the purpose of dealing with Respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and completely dis- establish said organization as such representative; (b) Upon request, bargain collectively with International Ladies' .Garment Workers' Union, AFL, as the exclusive representative of the employees in the aforesaid appropriate unit; (c) Post in its plant in North Easton, Massachusetts, copies of the notice attached hereto and marked Appendix A.' Copies 'of said 4 In the event this, Order is enforced by decree of a United States Court of Appeals, there shall be inserted before the words "Decision and Order" the words "Decree of the United States Court of Appeals Enforcing." 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD. notice, to be furnished 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 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 Respondent to insure that said notices are not altered, defaced, or covered by any other mate- rial; (d) 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. 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 COMPLETELY DISESTABLISH INDEPENDENT RUBBER WORT Rs UNION of North Easton as the representative of 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 financial or other support to it. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist INTERNATIONAL LADIES' GARMENT WORKERS' UNION, AFL, or any other labor or- ganization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all 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. WE WILL BARGAIN collectively, upon request, with INTER- NATIONAL LADIES' GARMENT WORKERS' UNION, AFL, as the ex- clusive representative of all the employees in the bargaining unit described herein with respect to rates of pay, wages, hours of em- ployment, and other conditions of employment, and if an under- STEDFAST RUBBER COMPANY, INC. 303 standing is reached, embody such understanding in a signed agreement. The bargaining unit is: All employees employed at our North Easton plant, ex- cluding executives, office and clerical employees, powerhouse employees, firemen, oilers, guards, professional employees, and all supervisors as defined in Section 2 (11) of the Act. All our employees are free to become or remain members of INTER- NATIONAL LADIES' GARMENT WoRK s' UNION, AFL, or any other labor organization. We will not discriminate in regard to hire or tenure. of employment because of membership in or activity on behalf of any such labor organization. STEDFAST RUBBER COMPANY, INC., 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. INTERMEDIATE REPORT AND RECOMMENDED ORDER Mr. Leo J. Halloran, for the General Counsel. Messrs. Bernard A. Riemer (Cohn and Riemer) and Lawrence H. Richmond, of Boston, Mass., for the Respondent. Messrs. George E. Roewer and Walter R. Donovan (Roewer & Donovan), of Boston, Mass., for the International Ladies' Garment Workers' Union, AFL. Mr. Maurice Murphy, of Brockton, Mass., for the Independent Rubber Workers Union of North Easton. STATEMENT OF THE CASE Upon a third amended change filed March 1.3, 1950, by International Ladies' Garment Workers' Union, AFL, herein called the Union and ILG, the General Counsel of the National Labor Relations Board,' by the Regional Director for the First Region (Boston, Massachusetts), issued a complaint dated March 13, 1950, against Stedfast Rubber Company, Inc., herein called the Respondent, alleg- ing that the Respondent had engaged in and was engaging in unfair labor prac- tices affecting commerce within the meaning of Section 8 (a) (1), (2), and (5) and Section 2 (6) and (7) of the National Labor Relations Act as amended (61 Stat. 136), herein called the Act. Copies of the complaint, of said charge, and of the notice of hearing were duly served on the Respondent and the Union. With respect to the unfair labor practices the complaint alleged in substance : (1) That the Respondent had, on or about December 8, 1949, initiated, formed, sponsored, and promoted the Independent Rubber Workers Union of North Easton (herein called the Independent) and since that date had assisted, domi- nated, contributed to the support of, and interfered with the administration of said Independent, in violation of Section S (a) (2) ; (2) that on and after November 24, 1 The General Counsel and his representatives are herein referred to as the General Counsel and the National Labor Relations Board as the Board. 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1949, Respondent refused to bargain collectively with the ILG on its request although said Union had been on and since said date the representative for the purposes of collective bargaining of a majority of the employees in an appropriate unit, in violation of Section 8 (a) (5) ; and (3) by the above and by other stated acts, Respondent had interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed in Section 7, in violation of .Section 8 (a) (1). By its answer filed at the hearing Respondent admitted the allegations of the complaint as to the nature of its business but denied all allegations as to the commission by it of unfair labor practices. Pursuant to notice a hearing was held in Boston, Massachusetts, from March 27 through April. 10, 1950, inclusive, before George A. Downing, the undersigned trial, Examiner, duly designated by the Chief Trial Examiner. The General Counsel, the Respondent, the ILG, and the Independent were represented by counsel, though counsel for the two unions were not present throughout the. hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence relevant to the issues was afforded all parties. During the hearing the Examiner granted the General Counsel's motion to amend the complaint to exclude from the alleged appropriate unit the.power- house employees including firemen and oilers. The Examiner also granted Respondent's motion to amend its answer to allege its contractual relations with the International Brotherhood of Firemen and Oilers, Local 47, AFL, as to: its powerhouse employees and to allege that the ILG's request for recognition was inclusive of said employees. At the conclusion of the hearing the Examiner granted, without objection, the General Counsel's motion to conform the pleadings to the proof for the purposes of correcting names, dates, and other matters not going to the issues of the ease. The parties were afforded an opportunity to make oral argument and to file .briefs, proposed findings of fact, and conclusions of'law. The General Counsel and Respondent's counsel participated in oral argument. Briefs have been received from the General Counsel, the Respondent, and the Union and have been considered. Upon the entire record in the case and from his observation of the witnesses the undersigned makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT •Stedfast Rubber Company, Inc., is a Massachusetts corporation with places of business at North Easton, Massachusetts, and the Mattapan district of Boston, Massachusetts. Respondent is in the business of manufacturing rubber-coated products. , The principal raw materials used in the operations of the Respondent are rubber and fabric. It purchases annually raw materials valued in excess of $100,000, 75 percent of which are purchased from outside the Commonwealth of Massachusetts. Respondent manufactures annually finished products valued in excess of $200,000, 75 percent of which are sold to purchasers outside the, Commonwealth of Massachusetts. On these facts it is found that Respondent is engaged in interstate commerce within the meaning of the Act. STEDFAST RUBBER COMPANY, INC. 305 IT. THE LABOR ORGANIZATIONS INVOLVED International Ladies' Garment Workers' Union, AFL, and Independent Rub- ber Workers Union of North Easton are labor organizations admitting to membership employees of Respondent. III. THE UNFAIR LABOR PRACTICES A. Background and preliminary events Though the. complaint charged Respondent with the commission of unfair labor practices during. a period commencing November 24, 1949, the major bulk of the evidence concerned events prior thereto. The earlier events and the issues explored therein related mainly to the existence and continuity of the Independent' Such preliminary evidence was adduced in great volume and must necessarily. be summarized somewhat in detail since it constitutes the essential framing for the main events and the backdrop against which they must be viewed and evaluated. . One anomaly of the case as it ultimately developed was that the chief conflicts in the evidence concerned the preliminary events, and that in comparison there was little in. dispute as to the main incidents which occurred subsequent to November 24, 1949. Since a determination of the constituency of the Respondent's supervisory hier- archy will facilitate a proper understanding and evaluation of both the pre- liminary and the main factual events, that question will be resolved in advance of summarizing the evidence. 1. Preliminary .issues; the supervisors Respondent operates plants at Mattapan and North Easton, Massachusetts, and at Granby, Quebec, Canada. Its main offices are at the Mattapan plant, which is the headquarters of its officials. The complaint concerns only the North Easton plant, which was operated under the immediate supervision and direction of Edward Zabrosky, plant super- intendent, and Albert M. Brown, office and production manager, and under the general supervision of the Mattapan officials, particularly of Albert P. Grossman, Respondent 's assistant treasurer and clerk, and of James J. Clifford , its vice president and general manager. The general foreman under Zabrosky was Frank Kelliher, who was conceded by Respondent to occupy supervisory status. The payroll for the week ending November 27, 1949, reflected the employment of 93 production and maintenance employees' divided among the following de- partments : Laboratory 1; Stafast 8; Inspection 3; Shipping room 6; Mill 4; Make-up 1; Compound Room 3; Dope Room 5; Churn Room 6; Firemen (power- house) 4; Mechanics 11; Miscellaneous 3; Saturator 9; Spreader 13; Make-up 3; Leatherette 5; Embossing 3; and Miscellaneous 54 The General Counsel contends that a number of the department heads, fare- men, working foremen, or leadmen (as they are variously referred to in record) in these departments were supervisors within the meaning of Section 2 (11) of 2 Also referred to at times as the old Independent to distinguish it from the organization which was revived or reformed after the advent of the ILG. ' Other payrolls disclose that the number of such employees varied from 87 to 93 during the period of the commission of the alleged unfair labor practices . During earlier periods and since 1945 the number of employees had varied from a low of 75 or 80 to a high of 99. These figures are. inclusive of all foremen. 4 The payroll shows 2 separate departments headed "Make up" and 2 headed "Miscel- laneous. " The evidence contains no explanation. . 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Act.. He relies, among other evidence, upon the following outline of Re- spondent's factory organization which was at one time posted on the bulletin board : The following outline is a plan of our factory organization showing the departments and persons responsible for the departments. Department Name Dope Room ----------------------------------- J. Fernandez. Churn Room-------------------------------- Al. Perry., Saturator and Latex------------------------- P. Coffey. Compound and Mill-------------------------- B. Fisher. Spreader------------------------------------ M. Andrea (sic). Coating and Embossing and Makeup ----------- W. Braley. Inspection ------------------ ----------------- J. Galvin. Shipping and Receiving ---------------------- P. [George P.] Holster. Acid Room and Stafast and Calendar, Trimmer and Overall plant-------------------------. F. Kelliher. Boiler room--------------------------------- G. Reynolds. Maintenance -------------------------------- O. Carlson. Laboratory --------------------------------- J. Buckley. Office and Production ------------------------ A. Brown. A separate notice listed the call numbers by which the above department heads were summoned to the office by an electric horn. Although these notices do constitute evidence of relevance on the ques- tion of the supervisory status vel von of the persons listed, the chief fallacy inso- far as' the General Counsel's position is concerned, is that if they be accepted in full and at face value, they prove too much. Thus they would require (1) a finding of 14 supervisors (including Zabrosky) over approximately 80 employees (excluding the alleged supervisors) ; (2) a finding that the single employee in the laboratory possessed supervisory status though without employees under his supervision (cf. Joy Togs, Inc., 83 NLRB 1024) ; (3) a finding that one of three employees in the inspection department was a supervisor (cf. Moroweb Cotton Mills Co. 75 NLRB 987; Austin Company, 77 NLRB 938) (4) a finding that the head of the powerhouse employees was a supervisor. In the three latter instances there was no evidence, other than the notices themselves, that the persons in question possessed, assumed, or exercised any type of supervisory authority; nor did the General Counsel contend by brief or ar- gument that any of them qualified as supervisors. Indeed, in the last case, the General Counsel did not deny that the listed head of the powerhouse was properly a member of the International Brotherhood of Firemen and Oilers, Local 47, with whom Respondent was under contract. Nor, on the other hand, can Respondent's broad claim be accepted that none of their listed department heads (except Kelliher and Braley) were supervisors- in reliance on the categorical denials of Grossman and Zabrosky that any of. them possessed authority to hire, fire, etc., or effectively to recommend such action 5 Certainly, on the face of it Respondent's organizational outline and notice would appear to constitute a delegation of supervisory authority ; at least it 5 Thus Grossman and Zabrosky testified that only Zabrosky, Kelliher, or Braley had the authority to perform the dozen alternative acts of supervisory caliber specified in Section 2 (11), and that if any of the foremen had laid off, disciplined, discharged, or granted leave to employees , such action was unauthorized and "illegal." STEDFAST RUBBER COMPANY, INC. 307 would to the rank-and-file workers, unskilled in semantics and not informed by Respondent that it placed or had intended to place any limitation on the word "re- sponsible." a At a bare minimum Respondent had, by the notice, clothed the de- partment heads with apparent authority to act and speak for management,' and the employees Would have had just cause to believe that they did so in the situations to be later recounted. J. S. Abercrombie Co., 83 NLRB 524; and cases cited in footnote 8; International Association of Machinists v. N. L. R. B., 311 U. S. 72; cf. Macon Textiles, Inc., 80 NLRB 1259; Sioux City Brewing Co., 85 NLRB 1164, footnote 7. In the situation created by the Respondent, what will be of chief significance, therefore (aside from evidence as to the duties of the foremen, the time spent in manual work, comparative rates of pay, number of employees in the depart- ment, etc), is the manner and the extent to which the foremen actually exercised the responsibility. apparently delegated to them by Respondent e and the extent to which such exercise had effectual results on the rank-and-file workers. Under the evidence the group can be easily treated in three separate categories. The first of these, compassed of the heads of the laboratory, the inspection depart- ment, and the powerhouse, can be immediately eliminated as supervisors for rea- sons which have already been indicated. The second group, consisting of Braley, Andre, Carlson, Holster, and Fernan- dez, easily qualified for supervisory status. Grossman admitted on his final appearance on the stand that Braley had had supervisory authority ° for about 2 years, having been promoted "to a full-fledged foreman and assistant to Mr. Kelliher who [had] too much work to do." Other undenied testimony was that Braley gave the orders in his departments, directed and assigned employees to do overtime work, reprimanded and disciplined em- ployees, and on three occasions had discharged or laid off employees. Braley and Andre (like Kelliher) were paid on a weekly salary basis, i. e., at agreed hourly rates but with a guarantee of 40 hours a week. Braley was paid his guaranteed salary during the entire period of an illness which lasted approxi- mately 3 months, and was the 'only production and maintenance employee paid during periods of illness. Braley, like Kelliher, had also received Christmas 6In fact, the evidence favorable to Respondent varies widely as to whether the foremen were supposed to have been "responsible" only for getting the work done, or for the quality and quantity of the work, or for its quality and not its quantity, or for neither. Conse- quently , Respondent 's explanations of what it meant by `.responsible" are regarded to be largely the result of a posteriori definition. 7 Though Zabrosky admitted that he held meetings with his department heads practi- cally every day, there was no evidence as to what matters were gone into nor any that such conferences were related to the formulation or effectuation of management policies. Cf. United Screw and Bolt Co., 89 NLRB 953. B Grossman testified that he knew of his own knowledge that the department heads had not actually assumed or exercised supervisory authority, and he sought to buttress his knowledge by his claim that he spent from 3 to 5 hours a day at the North Easton plant and that he went all over the plant . In so testifying, Grossman obviously overlooked his other testimony that he did not recall being at North Easton from October 25 to November 17, 1949. Furthermore, Zabrosky testified specifically that Grossman was in fact not at North Easton during that period. Zabrosky also testified that his department heads other than Kelliher and Braley spent 100 percent of their time in working either at production work or maintenance work. That testimony is wholly overborne by the clear preponderance of the evidence that various department heads spent only fractional portions of their time in manual work or at other physical work of the same type as that performed by the other employees in their re- spective departments. 9 Respondent 's brief also concedes Braley's supervisory status. 917572-51-vol. 91-21 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bonuses, though Andre had not. In the absence of Kelliher on vacation or sick leave, Braley assumed his duties as general foreman. Andre's case closely paralleled Braley's both as to duties, method of pay, and the supervisory authority he exercised. He enjoyed the distinction, with Braley and Kelliher, of being paid a guaranteed salary, and the further distinction, with Kelliher, of being carried on a separate earnings sheet instead of the regular payroll. Undenied testimony establishes that he was in complete charge of the spreader department, gave orders and directions to the employees, granted them permission to take time off, including sick leave, directed and assigned the employees to do overtime work, made disciplinary layoffs and assigned other employees to replace those so laid off.' The cases of Carlson, Holster, and Fernandez do not differ widely from Braley's and Andre's except that they were paid on the basis of hourly rates, like other employees. However, the evidence establishes that their rates were e'en higher than the agreed hourly rates of Braley, Andre, and Kelliher, and substantially higher than the average for the employees in their departments. See *he following tabulation: Hourly rate Average rate of employees Kelliher -------------------------------------- ------------------------------- $0.85 ------------ Braley---------------------------------------------------- ------------------ .80 ------------ Andre----------------------------------------------------------------------- 1.00 -------- -- -- Carlson---------------------------------------------------------------------- 1.01 $0 . (.)0 Holster--------------------------------------------------------------------- 1.03 .81;1i Fernandez------------------------------------------------------------------ 1.08 .81 The evidence shows that Carlson10 actively directed the work of 11 mechanics, gave them their orders, assigned them their work, ordered and directed them to work overtime, granted them leave to take time off, and made disciplinary layoffs. Carlson spent only a small proportion of his time on the day shift in doing actual manual work. However, Respondent maintained, at Carlson's home a telephone for the purpose of reaching him in the event of a breakdown on the night shift. When so called, Carlson either made the necessary repairs himself or assembled such crew as was needed. Holster's case was highlighted by evidence of four separate instances in which Holster had made discharges or disciplinary layoffs. Blumberg testified to an occasion when Holster discharged an employee named Shaw who refused to obey Holster's order to continue working after Shaw had sustained an. injury, and to another occasion when Holster made a disciplinary layoff for a week of an employee named Terry. Holster admitted that Shaw had refused to obey one of his orders and that he had informed Shaw he would either have to obey the order or get his pay. Holster contended that Shaw had quit by going to get paid." Holster also admitted other 10 Findings as to Carlson 's status are based on the testimony of Edward M. Kelly, S. P. Hegg, M. J. Canty. G. Hewlet , and Maurice Blumberg, as well as on Carlson 's own admis- sions. Testimony that cannot be reconciled with these findings has not been credited. 11 Respondent 's counsel stated his intention of showing that Blumberg ' s story of the Shaw discharge was a "deliberate concoction of falsehoods intended to confuse the Examiner and the Government." The Examiner observed that Respondent had two witnesses avail- able by whom he might prove such a contention , i. e., Holster and Shaw. However, Re- spondent did not call Shaw as a witness and did not recall Holster, whose testimony, then already in the record, was not in significant conflict with Blumberg 's version of the incident. Nor did Respondent otherwise attempt to establish the exaggerated and apparently gratuitious representations of its counsel. STEDFAST RUBBER COMPANY, INC. 309 incidents in which he had informed employees named Perly Allen and Brown, respectively, that they either had to obey his orders "or get [their] pay and go home." As a result the employees were in both instances paid off and left the Respondent's employ. Holster nevertheless denied that he had the authority either to discharge or to recommend the discharge of employees. Whether or not he correctly inter- preted his authority, the evidence establishes that his action in requiring obed- ience to his orders resulted in the discharge of employees or the termination of their employment. The organizational notice and Holster's effectual exercise of supervisory authority certainly gave the employees good cause to believe that Holster was acting for and on behalf of management. See cases cited p. 5, supra. At a minimum, the evidence establishes Holster's authority responsibly to direct employees, inasmuch as refusal by them of required obedience to his orders resulted in discharge. In Fernandez' case, undisputed evidence established that Fernandez gave orders and directions generally to the employees in his department, that he directed and assigned employees to do overtime work, and that he granted leaves of absence. Significant also was the fact that his rate of pay was substantially in excess of the other employees in the department. In fact, Fernandez was the highest paid of all of Respondent's department heads, his rate being substantially in excess of Kelliher's, Braley's, and Andre's, as well as of Holster's and Carlson's. The third group of foremen (Perry, Fisher, and Coffey) constitute a more doubtful category than the two previously disposed of. They must be classed, however, with those who do not possess supervisory status. These foremen spent a large portion of their time in doing manual labor. Perry, for example, wore ordinary work clothes and spent all of his time in taking care of the churns and in mixing stock. Fisher and Coffey were paid at the same rate as other employees in their departments, and Perry's rate was not substan- tially higher than other employees. Though all of them to some extent gave directions to other employees, such orders were generally of a routine type, not involving the exercise of independent judgment, and of other instances consisted in relaying the instructions, orders, and assignments of Kelliher. Cf. H. J. Heinz Co., 77 NLRB 1103, 1106; Hart 11ffg. Co., 81 NLRB 1367; International Harvester Company, 82 NLRB 190, 193. There is also testimony that the employees applied to these foremen for leave to take time off, but it is not established that they actually granted the permission. To the contrary it was indicated that these foremen would get permission from the office for employees to be absent. Cf. Rub-R Engraving Co., 89 NLRB 475. There is also no evidence that any of the three had ever made or recommended a discharge or layoff or that they had assigned employees to overtime work. 2. The old Independent. Respondent first began collective bargaining at its North'Easton plant in 1938, with a committee of its employees, the first contract being dated October 1, 1938, and being signed by four employees as the "Committee for North Easton Em- ployees." Such contractual relations continued for approximately 2 years. Thereafter from 1940 to 1944 or 1945, Respondent had, at different times, con- tracts with both the AFL and the CIO. Records of the Independent Rubber Workers Union establish that it was organized on October 2, 1945. That one or the other affiliated unions (AFL or CIO) was still then under consideration is indicated by the following statements in the minutes of the first meeting : 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There was a discussion on which Union to take. A motion was made to give the Independent a try for at least three months. The officers elected were Braley, president ; Fisher, vice president ; Carlton Clark, secretary ; and George Holster, treasurer. The roll book or treasurer's book indicates that At the time of organization the Independent had 38 members, though 4 of them did not begin paying dues until a month or so later12 The roll book also lists in the apparent order of their enrollment as members the following : 1. Walter Braley 7. Manuel Andre 2. William Fisher 8. Joseph Fernandes, Jr. 3. George Holster 16. Manuel Perry13 At a subsequent meeting on October 25, 1945, membership fees were fixed at 50 cents and dues at 50 cents a month. Andre was then selected as one of the stewards and agreed to serve. Entries of significance in the minutes of that and of subsequent meetings are set forth below : October 25, 1945 Mr. Braley gave a report on what he was told at Mattapan.14 Mr. Braley gave his opinion on our Union. January 22, 1946 Pres. Braley gave a talk on what the Co. would give, in regards to pay raise. The Co. offer was five cents (.05) an hour raise in pay. Pay being dated back to October 13, 1945. Mr. J. Taylor made a motion to accept the five cents (.05) raise. Mr. E. Bennett second the motion. It was voted 21-1 to accept it. Mr. Geo. Holster made a motion to go in and sign a contract as soon as possible. Mr. E. Bennett second the motion. It was voted to do so. September 11, 1946 They asked for an increase of 30 cents per hour and a right to negotiate again later if hours are cut down. They also asked for a two weeks vacation with pay. October 31, 1946 Mr. Braley gave a talk on what company would give. Five cents (.05) was there offer & week vacation with pay. A motion was made and second to reject the five cent (.05) raise. The five (.05) cent raise was rejected through the vote. A motion was made & second that (.15) fifteen be the smallest to except. It was vote to send the same Committie to negoticite again. '2 Notations at the top of the columns in the roll book indicate that the Independent was organized in 1944 , but such notations are in clear conflict with the minutes and all other evidence that its organization was in 1945. 13 Although Carlson testified that he had been a member of the Independent ever since 1989, the roll book does not show that he was ever a member of the old Independent. 14 Apparently either on his request for recognition or a request to bargain. STEDFAST RUBBER COMPANY, INC. 311 December 23,1946 The business discution was about the Raise. The Company offer was as follows. .05 per hour for men working on points. .06 per hour for men not working on points. 1 week vacation with pay (To be ave. 6 week previous [?] ). A motion was made by Peter [George] Holster to accept the raise. Motion was second by Pat Moran. It was vote to accept the same. It was agreed that the present Offerice sign the contract. The minutes ended with the meeting of January 23, 1947, at which the follow- ing officers were elected : president, William Fisher ; vice president, Carlton Clark ; secretary, Maurice Blumberg ; treasurer, August Holster ; and stewards, M. Andre and E. Bennett. Blumberg testified that during his tenure as secretary and later alleged tenure as president no minutes were made or kept" The roll book or treasurer's book also disclosed that the last collection of dues which was accounted for was made for the month of January 1947, and that the book was balanced and closed out as of the end of that month, with total disbursements of $27.10, total collections of $243, and a balance of cash on hand of $215.90. Although the membership roll indicated a few scattered dues payments during subsequent months as shown by the table below, neither the Independent's records nor other evidence contain any suggestion as to what disposition or accounting was made of the funds. A tabulation. of the number of dues paying members as shown by the roll book is also significant : 194516 1947 November------------------- 34 January-------------------- 16 December--.----------------- 35 February-----.-------------- 11 1946 March---------------------- 9 January-------------------- 37 April----------------------- 7 February-------------------- 37 May----------------------- 2 March---------------------- 37 June----------------------- 0 April----------------------- 34 July----------------------- 0 May------------------------ 34 August--------------------- 0 June------------------------ 31 September------------------ 0 July------------------------ 31 October--------------------- 0 August ---------------------- 29 November ------------------ 6 September------------------ 27 December------------------ 4 October ---------------------- 26 1948 November--------.---------.-- 22 January -------- _------------ 1 December ------------------- - 20 is The minutes introduced in evidence , numbered from page 1 to 23 , inclusive, had'obvi- ously been cut from a book also in evidence which bad contained originally 286 numbered pages. Pages numbered from 24 to 48 inclusive had apparently been ripped or torn from the book. Blumberg testified that when he procured the book from Clark the pages con- taining the minutes had already been removed from the book and that Clark explained the absence of the other pages by stating that his daughter had needed some paper for school work and had torn the pages from the book without his permission . No denial of Blum- berg's testimony was made, and it is credited. 16 See footnote 12, supra. Accepting the organization date as October 1945 (as estab- lished by the minutes and by other evidence), the dates of member enrollment and of dues collections is readily apparent from the roll book. 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There is no indication that any dues were paid after the month of January 1948. There is no evidence of the enrollment of new members subsequent to 1946, except for Blumberg, in January 1947, and James Starr, W. Barker, and C. Wal- lent, in November 1947, the three latter of whom paid dues for only 1, 2, and 3 months respectively. The abrupt termination of minutes of meetings and the balancing and closing out of the treasurer's accounts, both of which occurred in January 1947, coupled with the cessation of dues collections and the failure to enroll new members, corroborate the testimony of a number of the General Counsel's witnesses that the Independent had in fact been dissolved. Such testimony was further corroborated by a number of other witnesses who had been employed for periods ranging from 1 year or less up to 2 years and more and who testified that they had never been asked to join the Independent and in fact had never heard of the Independent prior to the ILG activity in November 1949. Additional corroboration was furnished by the final and com- plete liquidation of the Independent's treasury on February 23, 1949, when the employees (meeting then as members of the Employees Mutual Benefit Associa- tion) " voted to transfer the Independent's treasury funds of $215.90 over to the said Association. Actually such funds were then, and for several months prior to August Holster's death in September 1948, had been, in Respondent's office safe in the admitted possession of Esther Anderson, an office employee.18 In any event, the evidence is conclusive that the Independent for at least 2 years prior to the advent of ILG-had not existed as an animate organization. No regular meetings were held (though regular meetings were required by the by- laws at least every 2 months) ; no minutes or other records were kept ; no dues were collected, or if collected were not accounted for ; no annual meeting was held in October as provided ; there was no annual election of officers or of mem- bers of the executive board; no bargaining committees were elected as provided ; and the books had been balanced and closed out. In fact there was little evidence of any union activity subsequent to the January 23, 1947, meeting. There was evidence in March 1947, of a conference between union representatives and management concerning back pay to be figured under a clause or rider which had been added to the contract in January 1947, referred to in the minutes of January 10, 1947. There was also evidence that sometime subsequent to October 13, 1947, a meet- ing was held and that thereafter the old officials executed a renewal of the earlier contract which had expired on that date.19 It is questionable, however, that the Independent existed at that time as a functioning union. At best, the old officers 17 Though a written transfer of the funds, later executed, appeared ambiguously to suggest that the meeting was one of the Independent, and clear preponderence of the evidence was that it was a meeting of the Association. It is so found. 19 Zabrosky and Brown, as well as Anderson (but no officer of the Independent), had the combination to the safe and fall access to its contents. Anderson admitting keeping there the funds (which were in currency) for, a period of some 16 or 17 months. Her testimony and Zabrosky's testimony that Zabrosky was unaware that the Independent' s funds were kept in the safe is not credited in view of the circumstances and in further view of Blum- berg's testimony that on one occasion he requested Zabrosky 's permission to make a with- drawal from stamp monies and that Zabrosky referred him to Anderson. Clark's testimony as to his own possession of the funds for a period of several months subsequent to August Holster's death is regarded as a sheer concoction which was contrived to conceal the fact that the funds were actually kept in Respondent's office safe. 19 The contract was an exact copy of the earlier one save for providing a wage increase of 7 cents an hour for day workers and 5 cents per hour for point [ incentive ] workers. STEDFAST RUBBER COMPANY, INC. 313 appeared to be acting as a committee for the employees, the familiar arrangement which had existed from 1938 to 1940, and which was suitable to the Respondent. Indeed, there is no evidence that prior to the advent of the ILG Respondent. ever required of committees for the employees or for the old Independent authenti- cation of their authority to act, or that Respondent at any time required of the old Independent a showing that it in fact represented a majority of the.em- ployees.20 An anomalous situation arose in late 1948 or early 1949 when after apparently months of inaction, a faction led by Blumberg attempted to take over the old hull of the Independent. According to Blumberg a meeting was held (probably in December 1945) attended by approximately 20 employees, at which he was elected president, Joseph Ricci, vice president, and William Noonan and George Kasupski, committeemen. He admitted that no secretary was elected and no treasurer, and he offered no credible explanation of the election of Ricci, Noonan, and Kasupski when none of them was at the time a member of the Independent.' If any meeting of the Independent was held at the time testified to by Blumberg, it was obviously regarded by the old leadership and membership as a rump session, the result of which they ignored 22 In fact, the inference is justified that Blumberg's attempted seizure of control over the remains of the Independent furnished the impetus for the organization of the Association early in February 1949, and inspired the coup in the meeting of February 23, by which the Associa- tion became the beneficiary of the Independent's treasury funds. Insofar as the old leadership was concerned, that meeting apparently was intended to constitute the final interment of the Independent. Even objectively appraised, it would indicate the final liquidation and dissolution of the Independent, at least in its fiscal affairs, which then was the only respect in which it effectively existed. Blumberg's claims were further discredited by the fact that he willingly signed in his capacity as secretary the formal transfer of the Independent's funds on November 16, 1949 (see footnote 22), and that he offered no objection on that occasion to Fisher signing as president or to the signature of any of the other old officers of the Independent. Blumberg was able to offer no plausible or credible explanation of these facts consistent with his claim that new officers had been elected in,December 1948. At best, the action at the Blumberg meeting appeared to have been directed to attempting to negotiate a contract for the employees . Such is indicated by Blumberg's letter to Zabrosky dated January 17, 1949, as follows : This is to inform you that the Independent Rubber Workers Union held a meeting and a committee of four ( 4) were chosen to negotiate terms. We would, at your earliest convenience, like to get together. The following men are the committee representing all the employees . William Noonan, Stafast Dept., George Kasupski, Sat. Dept., Joseph Ricci, Spreader Dept., 2° Zabrosky 's gratuitious representation that the Independent had always represented a majority is without support in the record and is not credited . Indeed, the Independent's roll book suggests grave doubt that the Independent ever represented a majority since its peak membership never exceeded 38, including supervisors. 21 The roll book contains as member No. 27 , the name of William Noonan , Jr., but entries In the book indicate that Noonan ' s membership terminated with the month of March 1946, and his name was stricken through on the roll book . Ricci testified affirmatively that he himself was never a member of the Independent. 22 Indeed, as late as November 16, 1949, the Blumberg faction disclaimed legal representa- tion of the Indpendent and acknowledged the continuing tenure of the old slate of officers by their acceptance of the execution by the old slate (including Blumberg as secretary) on behalf of the Independent of the instrument transferring the treasury funds to the Association. 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Maurice Blumberg, Embossing Dept. Present at the meeting were more than thirty-five (35) employees 23 [Emphasis supplied.] But Respondent also ignored the Blumberg committee and made no response to the letter. Finally, becoming fearful that the employees would lose their summer vacations as provided in the previous contracts unless some new agree- ment were reached, the Blumberg committee went in and without discussion (Ricci's testimony) signed with the company on April 4, 1949, the following instrument : It is, hereby, agreed between the Stedfast Rubber Company, Inc., and the Independent Rubber Workers Union, employees of the Stedfast Rubber Company, Inc., at the North Easton plant, that the agreement between them which existed from October 13, 1947 to October 13, 1948, is hereby renewed for one year from October 13, 1948 to October 13, 1949. Stedfast Rubber Company, Inc. Independent Rubber Workers Union By R. P. Grossman, Asst. Treas. Al. P. Blumberg Joseph Ricci William Noonan George Kasupski In this setting and under all the circumstances it cannot be said that the Blumberg committee represented or was acting for the defunct Independent, particularly since three of the committeemen were not even members of the Independent. If they represented anyone it was probably the rump faction led by Blumberg.24 Respondent was of course fully aware of the condition of the Independent through participation of its supervisors in the affairs of the Independent and in the affairs of the Mutual Benefit Association. Indeed the meetings of the latter were customarily held in the plant. Furthermore, a copy of the formal transfer of the Independent's funds to the Association was posted on the Respondent's bulletin board. However, even were the existence of the Independent assumed to have con- tinued on a bare legal or technical basis , such fact would not avail the Re- spondent. This is true because the evidence disclosed and it is hereby found, that the Respondent, through its supervisory personnel, assisted in the forma- tion and administration of the Independent and that Respondent otherwise contributed to its support. The minutes and the membership roster show clearly that not only were Respondent's supervisors the first and the leading members of the Independent, but that they were among the officers and moving forces within it. It was Re- spondent's supervisor who dealt with Respondent on the employees' demands. - It was Respondent's supervisor who reported back to * the employees what Re- spondent would pay. It was Respondent's supervisor who moved the acceptance 23 Blumberg testified that only 20 employees attended the meeting and maintained the correctness of that statement when confronted with his letter. His testimony is accepted. Ricci testified that he attended the meeting, that it was not a meeting of the Independent, but a meeting of the employees which Blumberg had called, and that he (Ricci) wes elected a member of the bargaining committee to represent the workers. 24 Indeed, Ricci did not pretend to represent the Independent. He testified that although he had worked for Respondent By years, he was never a member of or an officer of the Independent, that he had never been informed that he had been elected to an office and that in signing the agreement he was acting for the workers who had authorized him to act. STEDFAST RUBBER COMPANY, INC. 315 of Respondent's offer. It was Respondent's supervisor who signed the first two contracts as president of the Independent. Respondent's supervisor acted as steward. Respondent's supervisor served as treasurer down to the very point that the books were closed and balanced. Thus, Respondent not only sat on both sides of the bargaining table but through its supervisor, signed contracts with itself. Furthermore, the Independent's treasury funds were kept in Respondent's office safe with Respondent's knowledge, and Respondent's office staff, with Zabrosky's consent, typed letters and reports for the Independent, using Re- spondent's equipment and stationery. In addition, Respondent disregarded with impunity and without question by any officer of the Independent many of the provisions of the contracts which were in effect since 1945. Thus, Respondent never prepared and posted (as required) a seniority list of all employees and never prepared and posted a list of plant superintendents, foremen, assistant foremen, and other supervisors who, in its opinion, were not eligible for membership in the Independent. There is no evidence that it followed the rule of seniority in laying off or in rehiring or recalling employees ; and it never delivered to the president of the Independent duplicate copies of recall notices. Neither is there evidence that the established grievance procedure was ever followed. 3. The second Blumberg committee ; the advent of ILG The first discussion of the possibility of organization of the plant by ILG occurred on or about October 4 or 5, 1949, at Harold.Kane's home 26 in a confer- ence between him, Henry Brides (manager of ILG and president of the Massa- chusetts Federation of Labor), and Alfred Fraioli, an ILG organizer. Approxi- mately a week later, or around October 11 to 13, a further conference was held at Kane's home in which Blumberg and Ricci also joined. Meanwhile the extension of the contract, which had been executed on April 4, had expired on October 13, 1949. Some reference was made to that fact in a conversation between Zabroski and Blumberg; and shortly thereafter, Blumberg acting sua sponte and without calling any meeting of the employees or of mem- bers of the old Independent, appointed, designated, or requested Ricci, Victor Roberge, and Joseph Oardoza to serve with him as a committee for negotiations. None of the three had ever been members of the Independent, and they all testified that in approaching them Blumberg asked in effect if they would serve on. a committee to represent the men in the shop. None of them was informed that the committee represented or was to represent the Independent, nor was Zabrosky so informed in the later conference they held with him?6 Thus Blum- berg testified that : Well the committee and myself went into the office. Mr. Zabrosky asked us if we was elected to come in here and I said to him, "No, we just repre- sent the men. .. . Zabrosky testified that, I asked if they were the duly authorized bargaining committee and Mr. Blumberg told me they were. Q. Duly authorized committee for whom, the Independent? A. As far as I know, yes. [Emphasis supplied.] 2^ Kane was under the impression the meeting occurred in November, but the testimony of Fraioli and Blumberg to the dates of this and the subsequent meeting fix it in October. 26 Actually Roberge did not attend the preliminary conference with Zabrosky, but did attend the later one with Grossman. 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The clear preponderance of the evidence is that neither in the conference with Zabrosky alone nor in the later one in which Grossman participated, did any one make any reference to the Independent or to any other union. It is so found. Further indication that the Blumberg committee did not in fact represent the Independent was that well before the actual meeting with Zabrosky on October 25, Blumberg and Ricci had signed membership cards with ILG and that organi- zation plans were under way. Indeed, Blumberg's attempts at negotiation under the circumstances would ordinarily appear to constitute a further anomaly in the background events. However, an explanation is supplied by testimony that Fraioli, who had been kept informed of developments, 'suggested that the Blum- berg committee go through with the conferences for the purpose of ascertaining what Respondent's proposals were and for reporting back to him.27 The Blumberg committee met with Zabrosky pursuant to appointment on the afternoon of October 25 28 In a conference which lasted approximately from 4 to 5 p. m., the committee outlined to Zabrosky their requests on the main matters they were interested in. Zabrosky made a note of them and stated that he would arrange a later conference with Grossman. The second conference (with Grossman) was not held until November 17. In the meantime, the ILG had held a meeting of the employees at the Portuguese- American Hall on the evening of November 15 and had signed up some 50-odd application and authorization cards. Brides and Fraioli had addressed the gathering. Blumberg had played a leading role in arranging for the meeting and in signing up the employees. A conference committee of employees was appointed to participate with the ILG in bargaining negotiations with Respondent, if and when the Union was recognized. The committee consisted of Blumberg, Roberge, Ricci, and Cardoza. The testimony indicates that they were chosen because of their participation in the earlier negotiations with Respondent. On the 16th and 17th, signatures were obtained on a number of additional cards and by the latter date approximately 60 employees had signed up. 27 Although Fraioli and Blumberg limited Fraioli 's suggestions in this respect to the latter meeting with Grossman , it is found from the entire evidence that subsequent to October 5 , Fraioli was kept fully informed and that he inspired and directed Blumberg's handling of both conferences. 28 The sharpest factual issue in the case concerned the date of this conference and the date of the subsequent one arranged by Zabrosky with Grossman . Blumberg fixed the dates as October 33 and October 20', respectively, and his testimony is supported in a gen- eral way by Roberge and Ricci . Cardoza 's testimony is valueless on the point . Respond- ent's witnesses fixed the dates as October 25 and November 17. Although the testimony is approximately on balance , Respondent produced time and production records which supported its position . Though its time cards for the members of the committee were compatible with the contentions of both parties, certain entries on daily production sheets made by Blumberg and Ricci corroborated Respondent 's view that the correct dates were October 25 and November 17. It is so found. The Respondent made a violent attack on the general credibility of Blumberg and mem- bers of his committee, whose testimony related mainly to the preliminary events and issues. Actually much of what they testified to, of relevance to the main issues , is not in dispute or is corroborated by other evidence . Respondent also substantially weakened its posi- tion by its exaggerated and unsupported representations . See footnote 11. Respondent also argues strentrously that since the testimony of Blumberg, Ricci, Roberge, and Cardoza must be found to be discredited in part, it must be rejected in full. Such view is unsound : "It is no reason for refusing to accept everything that a witness says, because you do not believe all of it ; nothing is more common in all kinds of judicial decisions than to believe some and not all." N. L. R. B. v. Universal Camera Corporation ( L. Hand, C. J.), 179 F. 2d 749, 754 (C. A. 2). STEDFAST RUBBER COMPANY, INC. 317 Pursuant to Fraioli's suggestion, the Blumberg committee went through with the conference on November 17. It was held in the company's office from 2 p. in. to approximately 5: 15 p. in. Grossman, Zabrosky, and Brown represented the Respondent and Blumberg, Roberge, Ricci, and Cardona appeared as a com- mittee for the employees. There was no significant conflict in the evidence as to the happenings at that conference. Again there was no inquiry of the committee as to whom it repre- sented, and no reference was made by the committee to that matter, save some vague comment by Blumberg that the committee was appearing for "the boys in the shop." Nor was there any reference to the Independent or to any other union. Blumberg acted as spokesman for the committee and Grossman for the Respondent. Little' was said by anyone else. Blumberg again outlined the employees' demands as previously mentioned to Zabrosky. These included a 15-cent an hour raise in pay and paid vacations, paid holidays, time and a half after 32 hours in a week in which holidays had occurred, the Respondent to pay Blue Cross and Blue Shield benefits, etc. Grossman at times made some ref- erence to the old contract with the Independent, but Blumberg responded that such contract "wasn't worth the paper it was written on." Although the committee's proposals were discussed at length, no agreement was reached on any matter. The chief stumbling block was the request for a wage increase. Grossman had countered this with the suggestion that Respondent was considering a wage cut of 10 percent. The meeting broke up with no definite understanding for a renewal date. The news that Respondent had offered or suggested a wage cut spread rapidly throughout the plant, and that fact was credited by a number of the witnesses with expediting or accelerating the ILG membership drive. However, most of the cards had been signed prior to the conference on November 17 29 Zabrosky testified that on or about November 23 he inquired of Blumberg whether he wished to suggest -or establish a further date for negotiations and that Blumberg replied that "he was all through bargaining and that he had joined the International Ladies' Garment Workers' Union." Blumberg's version was not in significant conflict. Thus he testified that he told Zabrosky that he "wasn't a bit interested; as far as [he] was concerned, [Zabrosky] would hear from the representatives of the International Ladies' Garment Workers' Union." B. The main events 1. ILG's request for recognition and bargaining Respondent did hear from the representatives of the ILG, as predicted by Blumberg. On November 23, 1949,'° Brides of ILG called Grossman on the tele- phone and informed him that ILG represented 75 percent of Respondent's pro- duction and maintenance employees and requested the opening of negotiations 29 The entire evidence suggests the possibility that the ILG organization meeting followed hard on the heels of the bargaining conference. It is possible that it did so. In that case, however, either the conference occurred on or about November 14, instead of November 17, or also, the union meeting occurred on November 18 Instead of on November 15. However, the preponderance of the evidence supports the findings previously made. The findings hereinafter made as to the commission of the unfair labor practices remain unaffected, regardless of which preceded the other. 3° Grossman testified that the call from Brides was on November 28. No reason appears why ILG would have any longer delayed its request for recognition in view of its representa- tion of so large a majority of Respondent's employees in the unit. Brides' testimony is credited. 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for a collective bargaining agreement. Grossman promised to consider the matter but stated that he would have to consult other officials of the Company. He made no reference to any negotiations with the Independent but did make some reference.to the fact that they had an Independent union in the plant. Nathan Barker, manager of another of ILG's locals, called again a few days later but was informed that Grossman was out of town. After further delays, Brides and Barker conferred with Respondent's attorneys, Weiner and Richmond, on December 6, 1949, in Riemer's office. Brides repeated his claim that the Union represented 75 percent of the employees and offered to produce the cards if the majority was questioned. Riemer stated that that would be unnecessary ; that he would take their word for it ; and that he was, in fact, happy that ILG was in the picture. The only question Riemer raised was the possibility that the Independent contract had not expired, but he agreed, finally that the 90-day clause was no longer valid 31 Barker testified that he and Brides specifically discussed with Riemer the question of executing a contract with ILG; that they asked Riemer to get together with the Company so that they could negotiate; and that Riemer put them off, saying that he would have to get in touch with Grossman over the week end, and that he (Riemer) would get in touch with them later. Brides testified that reference was also made to an election and that the Union agreed to one but wanted a "yes" or "no" election (i. e., with only ILG on the ballot). Brides also testified at one point that the Union agreed to an election because it wanted a Board certification, but he explained later that it was in order to clarify any doubt in Respondent's mind as to the Union's representation of a majority that he suggested an election, and that he had not meant to imply that the Union was asking for an election simply to get a certification. He testified further that negotiations did not begin at the conference only because Riemer stated it would be necessary to take the matter up with the Company over the week end. Although Brides' testimony was somewhat ambiguous as to the Union's position on an election, it is clear from his and Barker's testimony as a whole 32 that the Union was requesting immediate recognition and negotiations for a contract and that its agreement to an election was made to remove any doubts which Respondent might have had, real or specious, as to the Union's representative status. Indeed such was the Union's consistent position throughout the later developments. On December 7, Brides wrote Respondent as follows : - This is to advise you the International Ladies' Garment Workers' Union, A. F. of L., represents a majority of your employees. We have been desig- nated as the collective bargaining agent by a majority of your employees, and have been authorized to negotiate a contract covering hours, wages, and conditions of employment. 31 The 1947 contract ( like its predecessors ) had provided that it should continue in full force and effect for 1 year ; that at least 30 days prior to its expiration date negotiations might be opened for a renewal of the agreement ; and that if such negotiations had not successfully been brought to a conclusion at the date of expiration , the agreement should be automatically in force and effect for a further period of 90 days from its expiration date. Under the findings above made as to the status of the Independent and Respondent's interference with and assistance and support to it, the issue whether the contract had expired is an immaterial one, since, under the circumstances found, the contract could in no event serve as a bar to the demand for recognition by a duly designated representative, of a majority of the employees. 31 Weiner and Richmond did not testify. STEDFAST RUBBER COMPANY, INC. 319 We would therefore like to have a conference arranged with you within the next few days. We will appreciate hearing from you. The letter was received by Respondent on December S. Respondent made no reply to that letter, nor did Riemer later contact the Union as agreed- at the conclusion of the December 6 conference " 2. The petition for the Independent On or about December 8, the following paper or petition was placed in circulation in Respondent's plant : DECEMBER 8, 1949. We, the undersigned, wish to continue with the Independent Rubber Workers Union, of North Easton, and negotiate a new contract with the Company. The evidence concerning this petition is not in substantial or significant con- flict. The petition was circulated openly in the plant for 2 weeks or more, during working hours, and finally received 45 signatures. The testimony establishes that Edward W. Goodman, Jr., and Oscar Carlson were the most active in circu- lating the petition and in soliciting signatures. However, James H. Harding testified that Fernandez had joined Carlson in talking with him about signing the petition, and Konstant Beiksza testified that Perry had asked him every clay over a period of a week to sign for the Independent, saying "if you don't sign up, it will be just too bad." Carlson admitted circulating the petition among the employees in his depart- ment and admitted requesting three employees in other departments to sign. However, testimony of other witnesses establishes that Carlson's sponsorship and circulation of the petition was much more extensive than he admitted, and their testimony is further corroborated by the comparative location on the petition of the signatures which Carlson admitted obtaining. Respondent denied that it had any knowledge of the petition at any time prior to the time it was exhibited to Zabrosky on December 28 by the committee for the new Independent, to be later adverted to. The contrary is established by the undenied testimony of Frank Rocille to an incident which he fixed as having occurred a week or two after he signed his application for membership in ILG on November 15 or 16. Rocille testified that he was called to the office and there found Zabrosky, Grossman, and Clifford ; that during a conference which lasted approximately 1 hour and 20 minutes, lie was urged and importuned by the three of them to renounce the ILG and to sign a paper and thereby become a member of the Independent Union. Because of its importance to the issues in the case, the most significant portions of the testimony is quoted. ... Mr. Zabrosky said. to me "We got you in here to get you acquainted with the conditions of the shop. We are having a little trouble and . . . I want you to understand them." So he brought out a piece of paper, to me it wasn't nothing because I never seen it before. He said, "Now, you know we had an independent imdon here," which that is true. We did have an independent union. And I said, "Yes, we had an independent union here." He said, "Do you know that is what we are going by now?" And I told him, I said, "Well, . . . I understand as Barker testified that after waiting a week or 10 days he or Brides called Riemer and was informed that Riemer "couldn't do a thing with Grossman." 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that that was dissolved 2 years ago. . . . As far as the men in the Company are concerned that piece of paper ain't worth the ink on it." "Oh, no," he said, "that is what we are going by. .. . Zabrosky brought up, he said, "Well, this here man ... is building a house." Soon as he brought that up I just told him, I said, "Well, I am building a house, yes, but this Company ain't got nothing to do with my building a house." I told him I wasn't depending on this Company for work or money or anything else to build the house. . . . He talked to me a little more and he asked me if I'd joined the Union, the Garment Workers Union. . . . And I told him, "Yes." He said to me, "Well, you don't want to belong to that Union. If it comes in here they dictate to you what they want and they will take as much money out of your pay as they feel like," and he said, "You don't want a Union like that in here." He said, "We had a Union in here at one time , an independent union and we was get- ting along all right ...." So Mr. Clifford then picked up a piece of paper and he asked me, he said, "Well, if you want to belong to the Independent Union, all you got to do is sign this paper and there won't be nobody say a word to you, nobody won't do anything about it or anything else." And I said to him, "No, I don't think so?" And when I was going out he said, "You had better think it over and sign the Independent Union," and I told him, "Nothing doing" I told him, "I value my teeth," and I walked out. [Emphasis supplied.] On cross-examination, Rocille testified that when he stated to Zabrosky that the Independent Union had been dissolved 2 years ago, Clifford then " sounded off and said it wasn't," and showed him a contract or a piece of paper and said, "Here is what we are going by." Rocille testified that he replied, " The men gave the money away and everything else. There ain't a man in the outfit that be- longs to the Independent Union. It must be dissolved. The only thing you got to show for it is that piece of paper." Clifford was not called by the Respondent as a witness. Neither Zabrosky nor Grossman testified in denial of the incident or of any part of Rocille's testimony. Rocille did not read either of the papers which were exhibited to him and was unable to identify either one as the petition which was later circulated in the plant for the Independent. However, the entire setting and context of the incident, including the coercive nature of Clifford's and Zabrosky's statements and questioning, disclose plainly that Respondent was seeking Rocille's signature either to the petition or to some copy or counterpart thereof. Indeed, the Rocille conference, in its timing and setting, appeared to constitute one of the initial steps in Respondent's plan to revive the Independent and to obtain ostensible sponsorship of the petition from among the rank-and-file workers. In any event the coercive tactics then adopted by' Respondent's top management officials were to set the pattern for Carlson in his circulation of the petition and solicitation of signatures thereon. Joseph DaSilva testified that when Carlson presented the petition to him and asked him to sign it that he replied, "No, I am not signing no paper" ; that Carlson said, "Why don't you want to sign the paper?" That he replied, "be- .cause I don't want to." DaSilva's testimony continued. Then he hung around a litle while, him and this Carlton Clark, and finally he came out and said, "So, you are not going to sign the paper, are you?" I said, "No, why should I?" He said, "Well Joe, you are going to sign it or else." STEDFAST RUBBER COMPANY, INC. 321 S. P. Hegg testified that Carlson showed him the petition, requested him to sign it, and told him among other things, "We don't want any outside Union. We want the inside Union in the shop." George Raymond testified that on a Friday night "his boss,". Fernandez, had directed him to work on Saturday. While he was at work on Saturday, Carlson came along with the petition and said, "Come on, sign this [paper] .... I give you 15 minutes"; that lie refused because he had signed the other one [the ILG card]. Raymond testified that Carlson repeated his attempts two or three times that Saturday morning, and that Carlson said, among other things, "If there is any other Union come in, you will be out and if you don't we will keep you working here." Raymond finally told Carlson, "I want to get rid of you," so he signed it. On further examination Raymond testified that Carlson had told him "if the other Union comes in, they will send you home, you are too old." Raymond was 68 years old. Edward M. Kelly testified that when Carlson handed him the petition, Carlson told him he could sign or not sign. A week or 10 days later, Carlson asked him if he knew that all older persons over 65 could be automatically discharged from the Garment Workers' Union if he joined. Roberge testified to an incident when Carlson came up and joined in a conversation between him and Canty and Daniel Lordan, the latter of whom was about 67 or 68 years old. The peti- tion was the subject of conversation. Carlson said, "I suppose you fellows know that any man over 65 years of age will be automatically laid off if the Garment Workers' Union comes in here." Joseph Wolangevicz testified that Carlson approached him three or four times with reference to signing for the Independent. Carlson said among other things that if the Garment Workers' Union got into the plant there would be trouble. Carlson did not have the petition with him and he talked with the witness. Ricci testified that around the first or second week in December, Carlson walked up to him with the petition and that the following conversation occurred : . . . He says, "Well, I got nine names on the petition now," I says, "You have?" I says, "Gee, you got nine foremen's names on there." I said, "You're doing pretty good," and I said, "I can't walk around with a petition." I says, "Who permitted you to walk around with a petition?" He says, "I got permission to walk around." I said, "I've got to sneak around with my cards," and he walks off. Ricci also testified that about 2 weeks later Carlson again approached him with the petition and said that he had 39 names on it. Blumberg and Roberge testified that around the middle of December they reported to Zabrosky that Carlson was circulating a petition for the Independent, that they did not believe that a foreman had a right to circulate a petition, especially on company time, and that Zabrosky said, "I will run the shop. You go back and do your work." Zabrosky admitted the incident but testified that he promised to investigate and that he did so by calling in Kelliher and asking him to check on the report. He testified that Kelliher disclaimed any knowledge of such a petition and later reported back that he had uncovered nothing concerning it. Zabrosky also testi- fled that his first knowledge of the petition was when the new Independent Com- mittee exhibited it to him on December 28, but he continued that even then he did not associate that petition with the one about whose circulation Blumberg and Roberge had complained 2 weeks earlier. 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Zabrosky's foregoing testimony is not credited. In view of the Rocille incident, the active sponsorship of the petition by Respondent's supervisor, Carlson, the signatures thereon of Carlson and of Respondent's other supervisors, Andre, Holster, and Fernandez, and its open circulation in the shop on company time for 2 or 3 weeks, it is incredible that Zabrosky could have been unaware of the petition. Indeed Ricci's credited testimony as to Carlson's admissions estab- lishes that Carlson had actually obtained permission to circulate the petition. Under Respondent's chain of command, such permission would have been granted only by Zabrosky or Kelliher. 3. The ILG put off ; the Independent revived Learning of the petition, Brides and Barker filed charges against Respondent and began to press their requests for negotiations. Barker also solicited the assistance of the State Board of Mediation and Conciliation. Conferences sched- uled by the State Board on December 23 and January 3 were postponed on Respondent's request on account of alleged absence and illness of Clifford and the conference was not held until January 10, 1950, as will be later recounted. In the meantime, the signatures on the Independent's petition reached a total of 45, and on December 27, 1949, Clark posted the following notice on the bulletin board: Independent Union meeting tonight at the Portugese-American Hall at 4: 30, p. in. All welcome. The meeting was attended by approximately-25 persons, including a number of ILG members, who did not participate in the proceedings, and at least 4 of Iespondent's supervisors (Andre, Holster, Carlson, and Fernandez), who did participate actively. Though officers were not elected, a committee was ap- pointed, headed by Clark, "to bargain with management." . Fortified with the petition and with notes or memoranda of the minutes of the meeting" the committee conferred with Zabrosky on December 28. These they exhibited to' Zabrosky when he purported to challenge their authority to represent the employees. According to Clark, Zabrosky pointed out that the minutes did not specify the matters on which the committee was to negotiate and stated that the Union would have to hold another meeting for that purpose. Clark testified that he accordingly called another meeting for January 3 by posting the following notice : Independent Union Meeting January 3, 1950 at the Portugese-American Hall. Members only. At that meeting, which was also attended by the same four supervisors, officers were elected, including Clark as president, and suggestions were voted on "as to what the workers desired the committee to bargain for." 3" The secretary's original notes which were exhibited to Zabrosky on the occasion were destroyed during or just before the hearing by Jackson, the secretary, after he or his wife had either copied the notes or written them up in more formal fashion. The copy is in evidence. The first paragraph reads : A meeting of the Rubber Workers of the Stedfast was held in order to revive the Independent Rubber Workers Union, Inc. Although the word revive had been copied revise, the Examiner finds that this was the result of a scrivener's error and that the word had originally been revive. Such finding is in accord with all the evidence , including the defunct condition of the old Independent, the wording of the petition, the setting and context of the meeting, and the fact that neither then nor in the later meeting of January 3 was any action taken or suggested to revise the Independent but instead that the direction was toward reviving and continuing the Independent under the ozd constitution and bylaws. STEDFAST RUBBER COMPANY, INC. 323 The committee met again with Zabrosky on January 4, and acquainted him with the requests of the Independent as voted on in the meeting. Zabrosky said, "I don't know what I can do for you but I'll take them down and see what Mr. Grossman says," and added that he would try to get an appointment "so that you fellows can have a meeting with Mr. Grossman." In neither meeting did Zabrosky make any reference to the previous demand for recognition by ILG. However, 2 or 3 days after the latter meeting, Zabrosky informed the committee that he could not bargain with them because "we have some kind of a notice from the AFL to bargain. We can't bargain with both." The foregoing findings are based on the testimony of Clark. His version of the occurrences accords with Zabrosky's on the main points but differs substan- tially on some of the details. Clark's testimony is credited in this instance. Though called as a witness by the General Counsel, Clark, who was president of the Independent, obviously favored the Respondent in his testimony even to the extent of attempting to conceal the fact that the Independent's treasury funds were kept in Respondent's safe. Furthermore, Respondent did not attempt to corroborate Zabrosky's version, though there were three other members of the bargaining committee present, as well as a stenographer who bad taken notes of the discussions at Zabrosky's direction. Respondent did not, however, abandon either its efforts to defeat the ILG or its attempts to recognize and to negotiate with the Independent. Thus Michael Reardon, (business agent of the Firemen's Union, Local 47, which represented Respondent's powerhouse employees) testified that sometime after January 5, Zabiosky called him and requested his assistance in combatting a rumor that the Firemen's Union had gotten a 121/.-,-cent an hour increase. Zabrosky explained' that a letter from the Firemen's Union denying the rumor would help him a lot in negotiating with the Independent Union. Reardon's testimony continued: "So," I said, "Mr. Zabrosky, don't I understand that there is a dispute regarding the bargaining agency at the plant at the present time? Isn't it a fact that the AFL is trying to organize the plant?" He said, "Yes." "Well," I said, "do you know that you are making a mistake by negotiating with any Union during this time? . . . Reardon testified that in response to this, Zabrosky stated that "the Inde- pendent was the Union. That the other thing didn't mean anything. It was just something he didn't recognize." Zabrosky did not deny the incident nor any part of Reardon's testimony. Similarly Respondent's supervisors continued their campaign to defeat the Union, Thus, Blumberg testified that during the first week in January, Braley told him that "when the AFL comes into the shop, that 30% of our weekly earn- ings will be deducted from our pay and turned over to the AFL ; and also, that when work is slack [the company] will have to lay the people off." Blumberg also testified to a conversation with Andre either 2 days before or after the Braley conversation in point of time, during which Andre told him that when the AFL came into the factory the Company would move the factory to Canada ; that when Blumberg expressed doubt, Andre responded, "It is not impossible. We can do the same work up in Canada." Respondent did not offer denial of Blumberg's testimony. 4. The meeting with the State Board On January 10, the conference originally scheduled for December 20, was held with the State Board of Mediation and Conciliation. Respondent was represented 917572-51-vol. 91-22 324 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD by Clifford, Grossman, Zabrosky, Riemer, and Richmond, and the ILG by Brides, Barker, Fraioli, and Roewer. The following findings represent a synthesis of the testimony of Fraioli, Barker, and Bridges. Grossman and Zabrosky did not testify in denial thereof. The conference revolved around the ILG's request that Respondent negotiate a contract, Respondent's refusal based on demands for recognition by the Inde- pendent, discussion of an election to resolve the issue, and Respondent's refusal to go to an election unless the Independent was also on the ballot, The ILG in turn refused. to agree that the Independent should go on the ballot, and the con- ference ended on that impasse.' Fraioli went immediately to the Board's office and filed a representation petition on behalf of ILG. An hour later, Riemer filed a petition in Respondent's behalf asserting that both the Independent and the ILG had presented claims to be recognized. FIe also listed the Independent as the recognized or certified bargaining agent with the date of recognition or certification as 1939 and listed the date of the expiration of the current contract as January 13, 1950. On March 13, 1950, the Regional Director dismissed both petitions, because of the pendency of the charges in the present case. C. Concluding findings 1. Domination The mere recital of the evidence under Section B, supra, establishes without need of analysis or discussion that from on or about December 8, 1949, Respond- ent through its management officials, inspired, sponsored, and supported the revival of the Independent and, through its said officials and its supervisors, dominated and interfered with the formation and administration 'of the Inde- pendent. It is so found. These conclusions are supported by: (1) The Rocille incident, which followed hard upon the organization meeting of ILG and in which Respondent's manage- ment officials by coercive statements and questioning and by implied threats of economic reprisals sought to obtain Rocille's renunciation of ILG and his support of the Independent; (2) Carlson's circulation of the petition openly in the plant during working hours, his solicitation of signatures thereon, and his coercive and pressuring statements to some of the employees to procure their signatures; (3) the signature of the petition by Carlson, Andre, Holster, and Fernandez; (4) the active participation by the same supervisors in the organization meetings on December 27,and January 3; and (5) Respondent's further attempts through Zabrosky. to advise, assist, encourage, and to recognize the Independent, as reflected by his conferences with Clark and the committee on December 28 and January 4, and his telephone conversation with Reardon subsequent to January 5. The full pattern of Respondent's unlawful conduct as it was ultimately unfolded disclosed a virtually classic example of employer domination and illegal assist- ance to inside or company unions. Though a citation of authority is superfluous, reference is made, for examples of similar conduct, to Brown Company, 65 NLRB 208, Harold W. Baker Company, 71 NLRB 44, Superior Engraving Company, 83 NLRB 215, Wells, Inc., 68 NLRB 545. The factual situations in the following representations cases also afford interesting parallels: Alaska Salmon Industry, Inc., 78 NLRB 185, Toledo Stamping d ilIfg. Co., 55 NLRB 865, Rochester c4 Pittsburgh Coal Co., 56 NLRB 1760. STEDFAST RUBBER COMPANY, INC. 325 The Sun Shipbuilding d Drydock case, 135 F. 2d 15, on which Respondent relies is inapposite. A principal factor influencing the result reached by the court was the fact that the employees' association had 3 years before the Board's proceeding, won by a large margin a Board-conducted election (in which the complaining union had also been a nominee), had received a Board certifica- tion, and had for 3 years served as bargaining agent without objection. In view of that background the court felt that the company should not have been held chargeable for the earlier action of three "leaders" as supervisors, in circulating a petition for the association when such "leaders" were so detached from manage- ment that they were admitted to membership both by the association and by the complaining union. In the present case, the status of Carlson, Andre, Braley, Holster, and Fernandez has unquestionably been established as supervisors, and the sponsorship and the circulation of the petition has been traced directly to the Respondent. 2. The refusal to bargain a. The appropriate unit All employees of Respondent employed at its North Easton plant, exclusive of executives, office and clerical employees, powerhouse employees -including firemen and oilers, guards, professional employees, and all supervisors as defined in Section 2 (11) of the Act, constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9 (b) of the Act. The foregoing finding is in accord with the unit alleged to be appropriate in the amendment to the complaint. The original complaint had failed to exclude the powerhouse employees including firemen and oilers," and Respondent's answer had denied that the alleged unit was appropriate. The amendment was made to meet Respondent's objection to the unit and also to accord with the unit for which the ILG was seeking representation. Thus, Brides testified that it was understood that the powerhouse employees were already represented by another AFL Union and that in requesting recognition he referred to the Union's repre- sentation of production and maintenance workers. Grossman testified that it was at all times understood after 1945 that the powerhouse employees were excluded from the unit covered by the Independent's contracts and he also testi- fied that when Brides notified him that ILG represented a majority of the employees, he understood that Brides meant the employees other than the power- house employees. b. The Union's representation of a majority Application-for-membership cards filed in evidence disclose that as of November 23, 1949, the Union represented 61 employees in the aforesaid unit ; that it pro- cured an additional card on November 24, and 1 more on December 19, bringing its total membership to 63. As of November 24, there were 89 employees in the above-described unit, excluding the supervisors as herein found. Respondent offered evidence that some of the employees who had signed ILG cards had been terminated. The instances were too few in number, however, to affect the Union's clear majority. ae Who were represented by the International Brotherhood of Firemen and Oilers, Local 47 4 FL. 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD No evidence was offered that any of the applicants had withdrawn or sought. the withdrawal of his application or of his designation of the Union as his bar- gaining agent, unless the subsequent signature to the Independent petition can be so construed. It is not clear that Respondent is making such a contention. But if such a contention be explicitly or implicitly contained in Respondent's arguments, it must be rejected in view of the Respondent's sponsorship of the Independent and its coercive solicitation of signatures to the petition. It is well settled that defections of membership which are attributable to an employer's unfair labor practices do not affect a union's representative status. It is therefore concluded and found that at all times since November 24, 1949, the Union has been the representative for the purposes of collective bargaining of a majority of the employees in the aforesaid unit. c. The refusal to bargain Respondent postponed and evaded the Union's request for recognition and for negotiations from November 23 until December 6. Then, in a conference attended only by its attorneys, it asserted specious contentions as to the existence of a contract with the old Independent and postponed further requests for negotia- tions and suggestions for an election until "over the weekend." It did not there- after notify the Union that it was ready to negotiate nor did it ever reply to the Union's letter of December 7 which had reiterated the Union's request for negotiations. Its reasons and its desire for delay and for evading the Union's request to bargain are readily apparent on the face of the record. It wanted time, in which to revive the Independent Union and to interpose it if possible as the bargaining agent of its employees. This is clearly established by evidence which is largely undisputed. First and of prime significance was the Rocille incident when Re- spondent's plant superintendent and two of its top management officials devoted 1 hour and 20 minutes to attempting to persuade a rank-and-file employee to renounce his ILG membership and to sign what was apparently a copy of the petition for the Independent. In its timing and context, the inference is justified that the incident constituted the inception of the petition and that Respondent's officials possibly hoped to procure Rocille's sponsorship of the petition in the plant. But Rocille's blunt and outspoken rejection did not dampen Respondent's de- sires to resuscitate the Independent. Instead, it was spurred on to new efforts by the conference on December 6 and by the Union's letter of December 7. These repeated and more emphatic requests by the ILG to bargain were met immediately by the open circulation in the plant of the petition to continue the Independent and for the Company to negotiate a contract with it. That petition was signed by four of Respondent's supervisors and was circulated, with Respondent's knowl- edge and permission, under the open, active, and coercive sponsorship of one of them. Furthermore, when the.fact -of its circulation by Carlson was called to Zabrosky's attention, he pretended to deny any knowledge of it (in spite of his active participation in attempts to procure Rocille's signature to the same or to a similar paper) and made an obviously insincere and inadequate attempt to verify the report and no attempt to terminate the circulation. What Respondent needed was time, and more time, because in spite of its sponsorship, the petition was meeting considerable resistance among the em- ployees who had previously signed for the ILG. Thus, the evidence is clear that STEDFAST RUBBER COMPANY, INC. 327 the petition circulated for at least 2 weeks and the inference is justified that it circulated until December 27.38 In the meantime, the ILG, having learned of the circulation of the petition and questioning Respondent's dilatory tactics, filed a charge with the Regional Di- rector. And when a week or 10 days after the conference of December 6, Riemer• informed Barker that he was' unable to "do a thing with Grossman," Barker sought the services of the State Board. of Mediation and Conciliation. However, Respondent continued its dilatory tactics. Meetings set by the State Board for December 20 and January 3 were postponed on Respondent's request until Jan- uary 10, when the meeting was finally held. In the meantime, Respondent had reaped the fruits of its delay by procuring a total of 45 signatures on the petition. Accordingly, on the evening of December 27, a meeting of the Independent was called and a committee was appointed "to bargain with management." Zabrosky's dealings with that committee and his sub- sequent conversation with Reardon emphasized that Respondent's intention was to ignore and to evade the ILG and to bargain with its own creature at all costs. The final conference on January 10, though anticlimatic, disclosed Respondent's continued insistence on interposing the Independent as its chosen nominee in the Board-conducted election which by its conduct it hoped to provoke and in which it finally hoped to defeat the ILG. Respondent, having proceeded to engage in unfair labor practices, certainly could not justify its refusal to bargain with the ILG on the ground that it rea- sonably believed it could await a certification. Inter-City Advertising Co., 89 NLRB 1103, and cases there cited. Actually its conduct had rendered, and still lenders, impossible a fair election in which the free will and judgment of the em- ployees may be expressed in the selection of their bargaining representative. Since Respondent's illegal conduct has rendered an election a nullity, the Board may order the Respondent to bargain with the ILG, the majority representative of the employees, without the formality of an election. The Cuffman Lumber Co., Inc., 82 NLRB 286, Joy Sills Mills, 85 NLRB 1263. Cf. N. L. R. B. v. Cowell Portland Cement Co., 148 F. 2d 237 (C. A. 9). Under the foregoing circumstances, and on all the evidence it is concluded and found that Respondent, on and after November 24, 1949, refused to bargain with the Union, and thereby engaged in unfair labor practices within the meaning of Section 8 (a) (5). 3. Interference, restraint, and coercion Respondent's acts of domination and of interference with-the formation and administration of the Independent and its refusal to bargain with ILG as above found, also constituted interference, restraint, and coercion of the employees in the exercise of the rights guaranteed by Section 7; and by said acts Respondent committed unfair labor practices within the meaning of Section 8 (a) (1). These findings are based on (1) Carlson's actions in circulating the petition and his coercive and pressuring statements in soliciting signatures, including particularly his statement to Da Silva, "You are going to sign it or else," his statement to Raymond, "Come on, sign this [paper]. I give you 15 minutes," and the statements testified to by Roberge, Raymond, and Kelly that if ILG 6 Thus, the petition contains the signatures of a bare majority, or less than a majority when supervisors are excluded. It was not until December 27 that the first meeting of the new Independent was called and not until December 28 that the committee exhibited to 7.abrosky the petition in support of its claim that it represented a majority. 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD should come in, men over 65 would be laid off ; (2) the coercive questioning of Rocille by Zabrosky , Clifford, and Grossman , including their inquiries as to his union membership , their attempts to procure his renunciation of ILG and accept- ance of membership in the Independent, and their implied threats of economic .reprisals if he refused their importunings. Further independent acts of interference , restraint, and coercion were Braley's statement to Blumberg that when the AFL came into the shop the Company would have to lay off people when work was slack , and Andre's statement to Blumberg that when the AFL came into the factory the Company would move the factory to, Canada. By said acts Respondent also engaged in unfair labor practices within the meaning of Section 8 (a) (1). No finding is made as to Zabrosky 's refusal in mid-December 1949 , to confer with an employees ' committee on a grievance concerning a layoff in view of the General Counsel 's express disclaimer that Zabrosky's acts on the occasion consti- tuted an unfair labor practice. The General Counsel did contend at the hearing that Respondent had engaged in interference, restraint, and coercion by posting the following notice immediately before the hearing: Notice To all men issued subpoenas : Inasmuch as you will not be paid by the company for loss of time, and the company requires your presence for production , you can minimize your loss of pay by reporting back to work by 1: 00 p. m. if you are excused by noon. The General Counsel does not renew his contention in his brief and, presumably, has abandoned it. However, in order that the matter may be definitely disposed of on the record , the Trial Examiner rejects the General Counsel's contention and hereby finds that by posting said notice Respondent did not engage in interference, restraint , or coercion. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent as set forth in Section III, above , occurring in connection 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. V. THE REMEDY Since it has been found that the Respondent has engaged in unfair labor prac- tices, the undersigned will recommend that the Respondent cease and desist there- from and take certain affirmative action designed to effectuate the policies of the Act. It has been found that Respondent , on and after December 8 , 1948, has domi- nated and interfered with the formation and administration of, and has contrib- uted support to, the Independent Rubber Workers Union of North Easton . It will be recommended that the Respondent cease and desist from dominating , interfer- ing with, or recognizing said Independent , and that the Respondent completely disestablish it. It having been found that Respondent has refused to bargain collectively with the International Ladies' Garment Workers' Union , AFL, it will be recommended that Respondent, upon request, bargain collectively with said Union. STEDFAST RUBBER COMPANY, INC. 329 It having been found that Respondent has engaged in certain acts of interfer- ence, restraint, and coercion , it will be recommended that the Respondent cease therefrom. The violations of the Act which the Respondent committed are, in the opinion of the undersigned , persuasively related to other unfair labor practices proscribed by the Act , and the danger of their commission in the future is to be anticipated from the Respondent's conduct in the past . The preventive purposes of the Act will be thwarted unless the order is coextensive with the threat . In order, there- fore, to make more effective the interdependent guarantees of Section 7, to pre- vent a recurrence of unfair labor practices and thereby minimize the industrial strife which burdens and obstructs commerce, and thus effectuate the policies of the Act, it will be recommended that the Respondent cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of 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. International Ladies' Garment Workers' Union , AFL, and Independent Rubber Workers Union of North Easton are labor organizations within the mean- ing of Section 2 (5) of the Act. 2. By dominating and interfering with the formation and administration of Independent Rubber Workers Union of North Easton and by contributing support to it, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) '(2) of the Act. 3. All employees of Respondent employed at its North Easton plant , exclusive of executives , office and clerical employees , powerhouse employees including fire- men and oilers , guards , professional employees , and all supervisors as defined in Section 2 (11) of the Act constitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9 (b) of the Act. 4. At all times since November 24, 1949, the Union has been and now is the exclusive representative of all the employees in the aforesaid unit for the pur- poses of collective bargaining within the meaning of Section 9 (a) of the Act. 5. By failing and refusing at all times since November 24, 1949, to bargain collectively with the International Ladies' Garment Workers' Union, AFL, as the exclusive representative of the employees in the appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 ( a) (5) 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 aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication in this volume.]