The Jeffrey Manufacturing Co.

In the Matter of THE JEFFREY MANUFACTURING COMPANY and UNITED STEELWORKERS OF AMERICA, CIO Case No. 9--C-2049.-Decided June 8, 1945 DECISION AND ORDER On December 6, 1944, the Trial Examiner 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 that it had not engaged in certain other unfair labor practices, and recommending that it cease and desist-from the unfair labor practices found and take cer- tain affirmative action, as set forth in the copy of the Intermediate Report attached hereto, and that the complaint be dismissed as to the remaining allegation. Thereafter, the respondent filed exceptions to the Intermediate Report and a brief in support thereof. No oral argument before the Board was requested by the parties. The Board has considered the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has consid- ered the Intermediate Report, the respondent's exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, The Jeffrey Manufacturing Company, Columbus, Ohio, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from: (a) In any manner interfering with, restraining, or coercing its em- ployees in the exercise of the right to self-organizations, to form labor 1 However, in finding that the respondent engaged in unfair labor practices , we, unlike the Trial Examiner, do not rely upon the statements of employee Brust to his brother-in-law, Martin, set forth in the fiist paragraph of Section ITT, A 2, of the Iutei mediate Report 62 N. L R B, No 36 - 212 THE JEFFREY MANUFACTURING COMPANY 213 organizations, to join or assist United Steelworkers of America, affiliated with the Congress of Industrial Organizations, or any other labor organi- zation, to bargain collectively through representatives of their own choos- ing, and.to engage in concerted activities, for the purpose of collective bar- gaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effec- tuate the policies of the Act : (a) Post at its plant at Columbus, Ohio, copies of the notice attached hereto, marked "Appendix A." Copies of said notice, to be furnished by the Regional Director of the Ninth Region, shall, after being duly signed by the respondent's representatives, be posted by the respondent imme- diately upon receipt thereof, and maintained by it for sixty (60) consecu- tive days thereafter, in conspicuous places, including all places where no- tices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material ; (b) Notify the Regional Director for the Ninth Region in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. IT IS FURTHER ORDERED that, the complaint be, and it hereby is, dismissed insofar as it alleges that the respondent has discriminated in regard to the hire and tenure of employment of Oswald Fillinger. NOTICE TO ALL EMPLOYEES APPENDIX A Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : We will not in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist United Steelworkers of Amer- ica, affiliated with the Congress of Industrial Organizations, or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. All our employees are free to become or remain members of this union, or any other labor organization. THE JEFFREY MANUFACTURING COMPANY By (Representative ) (Title) Dated 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 James A Show, Esq, of Cincinnati, Ohio, for the Board. It/ Glover Porter, Esq, and Lawrence D. Stanley, Esq, of Columbus, Ohio, for the Respondent Jacob Clayman, Howard N. Porter, and Floyd I Hill, of Columbus, Ohio, for the Union STATEMENT OF THE CASE Upon a charge duly filed on June 24, 1944, by United Steelworkers of America, affiliated sith the Congress of Industrial Organizations, herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Ninth Region (Cincinnati, Ohio), issued its complaint on September 6, 1944, against The Jeffrey Manufacturing Company, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affect- ing commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat 449, herein called the Act Copies of the complaint and the charge accompanied by a notice of hearing were duly served upon the Respondent and the Union. With respect to the alleged unfair labor practices the complaint in substance states that the Respondent: (1) On or about June 16, 1944, discharged Oswald J Fillinger and thereafter refused to reinstate him because of his membership in, activity on behalf of, and sympathy for the Union and for the purpose of discouraging membership in the Union; (2) commencing on or about June 1, 1943, and at various times thereafter (a) questioned its employees as to their union affiliations; (2) urged, persuaded, and warned its employees to refrain from becoming or remaining members of the Union; (c) vilified, calumniated, and maligned the Union and its leaders and organizers; (d) threatened its employees with discharge if they became or remained members of the Union; (e) offered to its employees preferential treatment as to wage increases, job security, and working conditions if they refrained from joining or assisting the Union or engaging in other concerted activities ; (f) imposed penalties upon union members for minor and common mistakes for which other employees were not penalized ; and (g) incited members of the families of employees active in the Union to bring family pressure against these employees for the purpose of urging them to refrain from becoming or remaining members of the Union; and (3) by all the foregoing acts has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them in Section 7 of the Act. The Respondent in its answer admitted all of the allegations in the complaint per- taining to the nature, character, and extent of its business but denied all of the allega- tions with reference to the commissions of the alleged unfair labor practices. The answer averred as an affirmative defense that the culminating reason for Fillinger's discharge was his smoking during working hours in the toilet room immediately adja- cent to the paint shop in which inflammables were employed, contrary to the Respond- ent's published rule, and for the cumulative reason that Fillinger would not cooperate with his fellow employees and was belligerent toward them to the extent of threaten- ing his co-workers while on duty. Pursuant to notice a hearing was held at Columbus, Ohio, on September 26, 27, 28, THE JEFFREY MANUFACTURING COMPANY 215 and 29, and October 2 , 3, and 4, 1944, before the undersigned Trial Examiner, James C. Batten, duly designated by the Chief Trial Examiner The Board , the Respondent. and the Union were represented and participated in the hearing . All parties were afforded full opportunity to be heard , to examine and cross-examine witnesses, and to introduce evidence bearing on the issues . At the close of the testimony the Board moved to conform the complaint to the proof as to minor details. Without objection, the undersigned granted the motion as to all pleadings . The undersigned reserved decision upon the Respondent's motion made at the close of the testimony to dismiss the allegation in the complaint that Fillinger had been unlawfully discharged. The motion is disposed of as indicated in the recommendations 'appearing hereinafter At the conclusion of the hearing the Respondent renewed a motion previously denied to strike from the record all testimony with respect to the allegation in the complaint that the Respondent had incited members of the families of the employees active in the Union to bring family pressure against the employees for the purpose of urging them to refrain from becoming or remaining members of the Union . For reasons hereinafter stated, the motion to strike is denied At the conclusion of the hearing the parties informally discussed the issues herein. The undersigned advised all parties that they might file briefs, provided that such briefs were submitted within seven days from the close of the hearing . Briefs were filed by the Board and the Respondent. Upon the entire record thus made and from his observation of the witnesses the undersigned makes in addition to the above , the following . FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT The Respondent, The Jeffrey Manufacturing Company, is an Ohio corporation with its principal office and plant located in Columbus, Ohio, where it is engaged in the manufacture, sale, and distribution of mining machinery and other steel products During the year 1943, the Respondent purchased raw materials valued in excess of $1,000,000, of which 60 percent, by value, was shipped to it from points outside the State of Ohio During the same period, the Respondent's finished products were valued in excess of $2,500,000, of which approximately 75 percent, by value, was sold and shipped to points outside the State of Ohio. The Respondent admits for the purposes of this proceeding that its business affects commerce within the meaning of the Act' II THE ORGANIZATION INVOLVED United Steelworkers of America, affiliated with the Congress of Industrial Organi- zations, is a labor organization admitting to membership employees of the Respondent III. THE ALLEGED UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion In May 1943, the Union opened an office near the Respondent's plant, chartered a local for its employees, and started an organizational drive among the employees This activity was the first effort directed toward securing employees of the Respondent as members, although in September 1942, two of the employees had voluntarily joined the organization. In the fall of 1943, the campaign had progressed to the point where the Union was holding open general meetings for all employees in the plant They were 'The facts hereinabove found aie based upon a stipulation of the parties and the admissions of the Respondent in its answer. 2 The facts set forth in this section unless otherwise indicated aie undisputed 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD attended in substantial numbers. In the spring of 1944, the Union's local was sufficiently well established to complete its formal organization and in May of that year, elected and sent a delegate to the Union's international convention in Cleveland, Ohio. From the inception of the Union's campaign, with the assistance of several of Respondent's employees, it regularly passed out leaflets at the plant gate and actively solicited the employees to become members. The Board, in support of the allegations in the complaint that the Respondent inter- fered with its employees' rights under Section 7 of the Act, relies on certain statements and activities of individuals who either represent -the management or are employed in supervisory positions.' 1 The activities of DeBruin Some time in May 1944, DeBruin, vice president in charge of manufacture, stopped Hoisington, a crane operator, at the plant gate and inquired "What's all this I hear about you?" Hoisington replied "Well, if you heard about,me joining the union it's true." DeBruin, referring to the fact that Hoisington had been employed by the Respondent for about 29 years, stated to him, "You're surely old enough to know better."' DeBruin also told Hoisington that he would like to talk to Hoisington further about the matter. DeBruin did not, however, further discuss the Union with Hoisington Hoisington testified that this conversation occurred the day following his joining the Union. On June 12, 1944, DeBruin approached Holtschult, an employee with 22 years of service, and stated that he had heard some "bad news." Holtschult stated to DeBruin that if he was referring to the fact that he belonged to the Union, it was true DeBru n then said that he was disappointed with Holtschult's action in joining the Union. On the next day' DeBruin, while Holtschult was working in the test department, inquired whether he had changed his mind. Holtschult replied that he had not, for the reason that 77 percent of the men belonged to the Union and that he was going to stay with it particularly for the reason that so many of the older men had joined DeBruin then replied that he did not know what benefit could be derived from joining the Union, 'only a lot of trouble." DeBruin further stated that he had run the plant for many years on a plan of the golden rule and that if "that bunch" got into the plant he might as well quit. Later in the day Holtschult, while in the shop office, stated to DeBruin, "Well, Harry, I didn't let you down." DeBruin replied that there was to be an election some time in the future among the employees in the plant and that he, Holtschult, could still- vote the right way. 2. The activities of O. B. Jones On or about May 29, 1944, Jones, plant superintendent and chairman of the House Committee of the Jeffrey Foremen Club," in the vicinity of the company garage, asked 3 Respondent concedes , except as to Travis and Brust , the managerial or supervisory status of the persons herein referred to as having interfered with, restrained, and coerced the employees s This finding is based upon the credible testimony of Hoisington which the undersigned accepts DeBruin admitted in substance the conversation as related by Hoisington , but testified he stated, "Well you are old enough to know what you are doing " 8 Holtschult testified that he had a conversation with DeBruin on June 12, and two convei sations on June 13. DeBruin, in his testimony , does not dispute the fact that the conversations may have "ecurred on diffeient days but it was his nupression that there was only one conveisation involving a discussion of the Union. The undersigned credits the testimony of Holtschult as the coil eel version of the conversations on June 12 and 13 9 The Respondent maintains near Columbus, Ohio, a club house for its managerial and supervisory employees. Brust who is employed in the plant as a timekeeper, lives on the club giounds and under the supervision of Jones looks after the property Under these circumstances, the undersigned finds that in Brust's remarks , hereinafter referred to, lie was acting for and in behalf of the Respondent. THE JEFFREY MANUFACTURING COMPANY 217 Brust if he, Brust, knew that his brother-in-law, Martin, belonged to the Union. The same evening after work Brust for the first time invited Martin to ride home with him Brust testified that on the way home he stated to Martin he did not approve "of any activities of his [Martin] that would cause the superintendent of the plant to mention hini to me," and that "I very emphatically told him that because I didn't want to become involved in anything that might arise from his activities in the department where he was." On the day following "D" Day, June 1944, Foreman Fiske went to the machine of Finley, a machinist, and told him that Superintendent Jones wished to see him in the office. When Finley reported to the office, Jones told him that he had heard he had quit the C. I. O. and that it was a wise decision Jones further told him that if anybody caused him any trouble to let him know, "that he had ways of taking care of that." Jones also stated to Finley, "just look at the class of people that is out there passing out bills. They don't amount to much, they are mostly foreigners." Finley testified that he then told Jones that he did not think he would have any more to do with the Union' 3. The activities of General Foreman Hueckel Some time in the early spring of 1944, Hueckel approached the bench where Weber, an assembler, was working and told him that he [Weber] was the leader of the Union Weher replied that before he could be a leader he would have to sign an application and pay dues. Hueckel then told Weber that he [Weber] was losing all of his friends around the shop. On June 12, 1944, Hueckel again approached Weber at his bench stating "I want to talk to you, Weber." Weber replied that he knew what it was all about because one of his fellow workers had already told him. Hueckel then told Weber to quit going around talking to the other employees,' that if he wanted to join the Union go ahead and join it, but by his actions he was losing all his friends around the plant. Hueckel also said, "For every man that you pick out that belongs to the union, I can pick out two that don't." Hueckel referred to what the Company had done for Holtschult, one of the older employees in point of service in the plant, and stated that if the Union won the election in the plant the men past 65 years of age would lose their jobs, and that, "So far as the old fellows around here, you couldn't take a wedge and drive it up their rectum and make them join." On the following day Hueckel again approached Weber at his bench and told Weber that he had heard that he was passing out leaflets. Weber replied that he had not been passing out leaflets, but that he had handed out two applications before work started that morning Hueckel further told Weber that he did not want him to go around soliciting the employees ; that the Respondent knew all the fellows that belonged to the Union, and that their names were in the main office. In the course of this conversation Hueckel again referred to Holt- schult, stating to Weber, "Why don't you admit it [belonging to the Union] like Frank [Holtschult] did, that you belong to the union?" Weber replied that he would not state whether he did or did not belong to the Union. Hueckel then advised Weber that if he was not satisfied with his job he should quit, and in conclusion told him, "it [C. I 0 ] is nothing but a bunch of damn dagos and wops." Weber' replied that he had just as much ' The undersigned accepts the testimony of Finley as the true version of the conversation occurring on this occasion Jones testified that Foreman Fiske had reported to him that Finley had "dropped out" of the Union, that some threats had been made to Finley because of leaving the Union , and for this reason "he thought it was serious enough to have him [Finley] report to his office." s The contention of the Respondent that its supervisory employees in talking to the employees concerning their union activities were motivated by a desire to keep up production is fully discussed hereafter and rejected. 218 DECISIONS ()1' NATIONAL LABOR R1fLATIONS BOARD right to iiork for the Union as Hueckel did against it As Hueckel left Weber he asked him to forget everything that had been said.' On or about June 12, on the day that Vice-President -DeBruin had asked Holtschult whether he belonged to the Union, Hueckel told Holtschult that he had broken the boss' heart by joining the Union. Holtschult told Hueckel that about 77 percent of the men had joined the Union, including many of the older employees. Hueckel replied that that is the way the Union talks, but there is not more than 20 percent who belong. He then asked Holtschult why he had joined the Union. Holtschult explained that the older men needed some protection in the plant Holtschult testified that this conversa- tion continued for an hour and ten minutes during which time Hueckel pounded on the table with his pencil and at the close of the conversation Hueckel stated : "Well, Frank [Holtschult] forget everything I said, it makes no difference to me whether you join the Union or not. Just forget it."' On July 7, 1944, as Trout, a painter, was passing from one end of the shop to the other, Hueckel told him that he had heard that he, Trout, had joined the C. I. O. Trout replied that he had joined. Hueckel then said, "I am very much surprised that you're joining up." "These bastards cone in here and pull the wool over you younger fellows' eyes" ; that he could not expect a promotion after joining the C 1 0 and that he was "doomed."ii In August 1944 Alexander, a welder and burner, who worked in varous departments in the shop while assigned to Hueckel's department, was asked by Hueckel to whom a hydraulic jack belonged which was setting near the place where Alexander worked. Alexander replied that it belonged to Jeffery. Hueckel replied that maybe it belonged to the C. I. 0 About a week after this conversation Alexander inquired of Walker, another employee in the shop, how his baby was getting along, and Hueckel came up and said, "What are you boys doing? Talking about the C. I. 0.?" Alexander advised Hueckel that they were talking about Walker's baby and Hueckel said, "Well, maybe. 1 thought you was talking about the CIO." Several days thereafter Hueckel approached Alexander and said,'"Well, I understand you are signing up these fellows around here in the CIO." Alexander denied that he had been soliciting the employees for member- -ship in the C. I. O. and Hueckel then stated, "Some of these fellows have been telling me You have been signing guys up around here." Alexander again denied that he had been soliciting employees to join the C. I. O." 4. The activities of General Foreman Fiske In August, 1943, shortly after Petty, a machinist, had attended a union meeting, Fiske, his foreman, accused Petty of belonging to the Union. Petty replied that he did not belong. Fiske then asked Petty if he would repeat the denial in the presence of Travis, an inspector and at times acting foreman . Petty replied that he would and, in ' The above findings are supported by the credible testimony of Weber and in part by Hueckel's testimony 3' These findings are based upon the credible testimony of Holtschult . As heretofore indicated Vice-President DeBruin admitted that in answer to his inquiry Holtschult admitted that he belonged to the Union, Hueckel testified that DeBruin , prior to the conversation above related , had advised him that Holtschult had joined the Union. J1 These findings are based on the credible testimony of Trout. Hueckel admitted that he approached Ti out and asked him if he belonged to the C . I. O. He gave a somewhat different version of the conversation than Trout which the undersigned does not credit . Hueckel testified that someone, "one of the boys that works up there," had told him that Trout had joined When asked who had given him the information Hueckel stated that he was unable to recall "hut there was somebody that told me. That is the reason I asked Mr. Trout." 12 The undersigned credits Alexander' s version of his conversations with Hueckel, although Ilueckel denied in part Alexander 's testimony. THE JEFFREY MANUFACTURING COMPANY 219 Travis' presence, again denied that he was a member ; that he had told Travis that he was ; or that he had talked to Travis about the Union. Later in the day Petty told Fiske that Price, a fellow worker, was the person who had advised Travis that he belonged to the Union and he asked Fiske to talk with Price. Fiske, after talking to Price, later returned to Petty and told him that Price admitted that he was the one who had talked to Travis's Around the middle of September, 1943, Fiske came up behind Healy, a bench hand, and asked him, "how much the Union dues were." Healy- without turning around replied, "I don't know" and as he turned around and-noticed Fiske, Fiske stated "I saw you talking to one of the union fellows out on the corner of First and Hamlet last night. I thought maybe you belonged to the union." Healy replied that lie did not belong to the Union and Fiske then stated, "Well I'm glad you don't because it might go hard on you." Fiske admitted the conversation on this occasion with Healy and in substance agreed with Healy's version of the conversation. Fiske in his testimony stated that there was some discussion in the department concerning union dues and so he matte the inquiry of Healy and at the same time asked him about his work, telling Healy that he had a good opportunity for advancement. The latter part of September 1943, Fiske approached Finley, a machinist, and stated, "You won't deny joining the Union?" Finley replied, "No sir, I'll show you my card." Fiske then asked Finley how he thought he could better himself by joining a commu- nistic organization that causes trouble, and told him that he, Finley, had a good job with Jeffrey having been with the Respondent approximately 7 years, and he was still a young man with an excellent opportunity for the future. Finley replied that he would "think the situation over." On or about September 15, 1944, at Finley's machine, Fiske told him that he was not going to do organizational work in the department during working hours Finley replied that he could organize before work hours or at noon, and Fiske replied, "Well, Neil, I see which way you are going; I tried to warn you, you have shit in your pillow." During the conversation Fiske noticed that Finley was wearing a C I. O. button on his shirt and, without making any statement about the button, looked at it and spelled, "shit."' Some time in May 1944, Fiske admitted that he handed to Gessel, an employee, a Pegler column that appeared in a local paper and remarked, "Did you ever read what the smart men say about your Union?"" in This finding is made upon the credible testimony of Petty. Fiske admitted having a conversation about the Union on the occasion in question , but did not recall the Travis and Price incident. Due to Fiske's partial admission and the fact that Fiske did not deny but was unable to recall the balance of the conversation, the undersigned accepts Petty 's version of the conversation 14 These findings are based upon the credible testimony of Finley . Fiske admitted having a con- versation with Finley on this occasion and admitted that he asked him if he belonged to the Union With respect to the balance of the conversation Fiske replied that lie did not remember distinctly but possibly he did ask him how he expected to better himself by joining the Union. 18 These findings are based on the credible testimony of Finley. Fiske recalled having had a conversation with Finley but was not positive as to just what was said Fiske recalled that he had a conversation with Finley in order to warn him not to do organizational work in the plant. The under- signed does not credit Fiske's version of the conversation. rs This article of Pegler's was entitled "Labor in Politics" and was not the usual Pegler article devoted entirely to labor unions and their leaders ; however, reference was made to "others [union bosses) are just common crooks and others may be gang politicians ." The article further states that the union leaders "think nothing of passing an economic death sentence on a citizen for violating a union oath taken under duress for appealing to the public courts against a union sentence or for attending a meeting of discontented members to organize a rival faction " The undersigned , without attempting to pass upon the truth or falsity of, any of the statements in the article , concludes and finds that it was given to t essel by Fiske for the purpose of creating in his mind a prejudice against the Union, 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On or about June 7, 1944, Fiske approached the machine of Weigand, a lathe oper- ator, and said, "Well, Neil [Finley] is sorry he ever jo.ned the CIO and he has done pulled out, quit" Weigand then told Fiske that he thought he would also quit the C I. 0 Fiske replied that he was glad to hear of Weigand's decision and that he would report that information to Superintendent Jones Fiske also told Weigand that he did not think a man of his calibre would join such a thing and stay with it Weigand then replied "Well, I hadn't quit altogether but I was thinking about quitting " Fiske then told Weigand that the C I. 0 was just about killed in the plant" Sometime in July or August 1944, Fiske approached Tipton, a bench hand, and asked the latter how he could be a member of the C. I. 0. and be a Christian Tipton replied that he did not care to have any trouble about it. Fiske then asked Tipton whether he knew Parish, a former employee active in the C 1 0 , was a criminal and that Parish's fingerprints had caught up with him. Tipton testified that he thought that Parish was a former representative of the C. I 0 1e Fiske testified with respect to this instance as follows : Well, Tipton is, he is a very religious man, and I had a conversation with him one day along those lines, and in the course of the conversation I asked Ed if he had ever heard about this man Parish over there at the Union Hall they say around here he has a criminal record . And Ed is very particular about the associates he has And he said that he had not heard about it, no. Well, I further stated, that it's common gossip around the plant here, that I had ,heard it several times. Well, later on he went to his church camp meeting for a week, and after he came back he came to me the next morning, in my office, and said, `Herb , you recall what we were talking about last week-' I think it was . I told him that I did. He said . `I have been reading my bible and have been talking to my preacher, and have finally come to the conclusion that I can 't be a Christian and belong to that Union.' Fiske was asked by the Trial Examiner why he thought it was necessary for him to discuss the matter with Tipton and replied Well, Ed is a character of a man that depends a great deal on his friends, and he has so relied on me in the past, he has asked my opinion about most anything that comes up, and I have talked to him quite a number of times in regard to his religion, and so on, and I just figured that if the Union had a man of that descrip- tion they didn't want anything to do with him, more or less Fiske further testified that he thought it was necessary for him to discuss the matter with Tipton for the reason that Tipton needed some advice about the matter. Fiske 17 These findings are based on Weigand' s version of the conversation and is accepted by the undersigned as credible Fiske admitted having a conversation with Weigand at this time He gave, however, a somewhat different version of the conversation The undersigned does not credit Fiske's testimony for the reason that Fiske's activities , partially admitted, in interfering with the employees' rights and talking to the employees in his department, were so widespread that it is clear that Fiske was openly hostile to the oiganizational efforts of the C I. 0 18 There was no further testimony during the hearing concerning Parish although it was clear that he was a former organizer of the C I 0 in the Respondent's plant There is no testimony that Parish was a criminal or that he had become involved in any difficulties either in or out of the Respondent's plant. THE JEFFREY MANUFACTURING COMPANY 221 testified that he, as a matter of curiosity, had asked several of the employees if they belonged to the Union 1ll 5. The activities of Inspector Travis The Board contends that the Respondent is responsible for certain alleged anti-union activities of Travis, while the Respondent asserts that he was assigned to General Foreman Fiske's department as an inspector, without supervisory or managerial au- thority that would make it accountable for his actions. Before proceeding to set forth Travis' activities, the undersigned will dispose of this issue Travis worked as an inspector in Fiske's department, but he was under the supervision of the Respondent's chief inspector who had general charge of all the inspectors in the plant. Fiske testified that he had about 28 men in his department, located in three different buildings; that Superintendent Jones gave him authority to designate Travis as head of the department in his absence ; that on one occasion he posted a notice in the department that "Dick Travis will be in charge until further notice" ; and that on at least two occasions during the past year Travis had acted as the foreman in charge.of the department. On the first occasion Fiske was sick for a 2-week period and on the other occasion he was on a week's vacation. Fiske also testified that it was customary for h.m to remain after the usual stopping time for the reason that the plant was operating over-time, but on one or two days a month he would leave early and that on these occasions Travis took charge of the department. Several of the employees in Fiske's department testified that Travis, in the absence of Fiske, "acts as foreman," assigns the work, checks the progress of the operations, and directs the entire activities of the department. Under these circumstances, the undersigned concludes and finds that Travis' relationship to the Respondent was such that the employees in the department were justified in believing that he represented the management in any expression of his views on matters of policy, such as union activity, whether these opinions were expressed during the periods when he was acting foreman of the department or when he was performing his duties as an inspector. In September, 1944, after Fiske had left the plant for the clay, Travis told Finley, Gessel, and Weigand to go up to the office the following morning and "all three of you tear your C I. 0 cards up, in front of Herb Fiske, and tell him you are through 39 The following examination of Fiske by the undersigned is revealing- TRIAL EXAMINER BATTEN: Well, what aroused your curiosity? THE WITNESS. Well, I just wanted to know. TRIAL EXAMINER BATTEN • Why were you interested in knowing who belonged to the Union? THE WITNESS: Well, as I stated before, the Union activities in my department were disrupting production, the way they congregated and talked, wasting a lot of time, and that is the reason I wanted to know who were. TRIAL EXAMINER BATTEN- I don' t see any relationship between your wanting to know who is a member of the Union and the fact that some of the men were gathering around your department. What would that have to do with it? THE WITNESS. What is your question? TRIAL EXAMINER BATTEN: I say, I don't see the relationship between finding out who belonged to the Union and the men gathering in your department. What is the relationship between the two? THE WITNESS- Well, I don't know that there is any relationship I was just curious to know, all I can answer TRIAL EXAMINER BATTEN- Well, did you think it was any of your business to find out who belonged to the Union? THE WITNESS: No, it isn't any of my business TRIAL EXAMINER BATTEN. Why did you do it, then' THE WITNESS: Just out of curiosity. .222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the whole thing, and everything will go on as if you had never joined." Finley testified that later in the same day Travis had rejected 27 sheaves that he had bored improperly and that, while he and Travis were discussing the rejected sheaves, Travis again stated that he should tear up his union card and then "everything would be forgotten." On the following morning Travis approached Finley and exhibited to him a red rejection card that was used by the Respondent to place in the containers where rejected material was placed and told Finley that the sheaves had all been scrapped The card which was exhibited to Finley on this occasion described the rejected sheaves as "C. I. 0." sheaves. On this occasion Travis told Finley that he and Weigand and Gessel should go up to Fiske's office, tear up their C 1. O. cards, and "all would be forgotten." This finding is based upon the credible testimony of Finley and Gessel. 6. The activities of General Foreman Kline In the latter part of May 1944, Kline approached Reynolds, a fit-up man, at his place of work and said, "Those four fellows belong to the same lodge that you do ?1121 Reynolds replied "What do you mean, lodge? They belong to the same union, but a different local ." Kline then said, "Oh, it is a union, is it ?" Reynolds replied that it was the United Steelworkers of America , C. I. O. Kline then said, "But not the A. F. of L.?" and asked Reynolds if he knew the fellows. Reynolds replied that he did not. Kline testified that at the close of the conversation he said to Reynolds ". . . I didn't think he had slipped that much in his morale and associate with that kind of people. I thought he was a little above that."' 7. The activities of Foreman Ross In January 1944, Ross approached Raymond, a layout man, and asked the latter if he belonged to the C. I. O. Raymond, although at the time he did in fact belong to the Union, denied it. Ross then said "Well, God pity you Ray [Raymond] if you do, because you will be working for 68 cents an hour and somebody will be pushing you all the time."' 20 Travis did not testify and the testimony as to his statement stands undenied 21 A few days prior to this conversation four colored men had been passing out C. I. 0. leaflets at the plant gate. 22 It is obvious that Kline's remark concerning Reynold's association with that kind of people referred to the fact that they were colored and members of the same labor organization Kline was well aware of the fact that Reynolds was perhaps the most active member of the C I 0. in the plant for it was shortly after Reynolds returned from the International Convention of the Union that the above conversation occurred. 13 Ross testified that he remembered asking Raymond whether lie belonged to the C 1 0 He further testified that "When Ray was talking quite a bit, standing around and making quite a few mistakes, and lagging in his production, and I wanted to know what was causing it. That is why I asked that question. I thought maybe we could get him straightened out and get more work out of him, which we should " As heretofore indicated, several of the supervisory employees testified during the hearing that due to the organizational campaign in the plant, production was lagging. Assuming arguendo that such a situation did exist, this fact would not excuse of justify the representatives of management in injecting themselves into the sphere of activities of the employees' self-organization If the employees were spending their time on union activities the Respondent could and should take the necessary steps to see that they remained at their place of work and devoted their time and efforts to production and the undersigned, if the employees were so engaged, does not condone such actions The undersigned rejects the Respondent's contention that such a situation, if it existed, would justify the actions of Ross and the other supervisory employees The real motive for these activities was the Respondent's desire to frusti ate tht effort of the Union to assist the employees in exercising their rights under the Act and not a desire to prevent impanment of production The undersigned so finds. TIIE JEFFREY MANUFACTURING COMPANY 223 8. The activities of Foreman Lamb Some time in the latter part of September 1943, Lamb told Reynolds, a layout man, that he did not know what Reynolds thought of the Union, but he should not have anything to do with Trusler, an employee whom Reynolds knew to be active on behalf of the C. I. O. Several weeks later when Lamb was handing out the "gain sheets"24 to the employees, Reynolds was busy, so Lamb gave Reynolds' gain sheet to employee Quinn, telling Quinn to give it to "the C. I. O. guy." When Quinn repeated Lamb's remark to Reynolds, he went up to Lamb and inquired, "Joe, [Lamb] how do you know I am a C I. O. guy?" Lamb replied that one of the employees had told him that Reynolds belonged to the Union. Reynolds demanded that the employee who had advised Lamb be produced so that he, Reynolds, could prove him to be "a damn liar." Several days after this conversation, Lamb approached Reynolds and stated, "Everett, you never (lid tell me whether you belonged to the Union or not." Reynolds replied that he did not have to tell Lamb, that it was his own business whether or not he belonged to the Union. Reynolds replied that according to the Wagner Act he had a right to join and assist any union of his own choosing and told Lamb that he seemed to be worrying more about the Union than he was In March 1944, Lamb approached Wemlinger at his place of work and asked the latter if he belonged to the Union Wemlinger replied that that was his personal busi- ness. Lamb then stated, "Well, I have pretty definite information that you do." Wem- linger again stated that it was his personal business, after which Lamb stated, "Well I have nothing against the Union so far as that is concerned, if it was anything else besides the C. I. O. My dad was a former member of the old railroad union and if it was anything else besides the C. I. O., why they would he welcome" Lamb also told Wemlinger that the card which he had signed for the C. I. 0 bound him to that organi- zation indefinitely and that he would be unable to withdraw if he wanted to Wemlinger then showed Lamb his membership card and Lamb stated, "No, that isn't the one I want to show you about, it is the application. It is in small print at the bottom, states you can't get out of the Union and gives the Union the sole right to represent you You can't get out no matter how long you work here for the Company." Wemlinger replied that he did not believe that Lamb's statement was true. Lamb then replied that he had taken it to a lawyer and that is the advice that he had received.' 24 The Respondent's wage rates were based upon a set rate, plus a bonus At regular intervals the Respondent prepared for each employee a "gain sheet" which set forth his earnings 25 These findings are based upon the credible testimony of Reynolds Lamb testified that he iecallcd a conversation with Reynolds at about the time concerning Quinn and the "gain sheet" but did not recall any conversation that referred to Trusler. Lamb testified that lie referred to Reynolds as a member of the C. I. O. as a joke, for the reason that Reynolds had denied belonging to the Union He testified that the Quinn incident, as testified to by Reynolds, was approximately correct Lanih also recalled the conversation with Reynolds concerning the Union and that he had asked Reynolds whether he did or did not belong 2OThis finding is based upon the testimony of Wemlingei, which the undersigned believes cor- rectly sets forth the conversation. Lamb admitted that lie had a conversation with Wemlinger in which he asked him if he belonged to the Union and that Wemlinger had told him that it was his own personal business. Lamb testified that he told Wemlinger that he was interested in him and would like to know whether he belonged because he had been doing a lot of running around in the shop. Lamb further testified that he told Wemlinger he "had no particular grudge against any union; that my father was a union man, and I had been raised in a union family, you might call it a union family But that I didn't approve of some of the things that I had read in the papei about Browder, and Hillman , and some of the others And I thought he should investigate it before t•e signed up I asked hint if lie had uivcstigatcd it. He said no, he hadn't 'Well,' I said, 'let me see the card you signed ' And instead of showing me the card that I referred to, he showed me his membership c.ud And I said. 'That isn't the card I mean I mean the application blank 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD About the middle of June 1944, Bing, a set-up man, asked Lamb if he could leave the plant at 4 30 in order'to go outside the plant and hand out C I 0 leaflets Lamb replied, "I can make allowances for some of these fellows around here, but I didn't think that you would do that " Lamb then arranged for Bing to be relieved of his duties at 4 30 ^_l Sometime in June or July 1944, Lamb again approached Bing and asked h m if he had a book of rules and when Bing replied that he did not, Lamb stated that he would furnish him with one. Lamb at this time also told Bing that he had had five persons report that Bing was putting C. I O. pressure on them. Bing replied by stating that it couldn't have been five, but possibly two who had.asked about the Union. Lamb also referred to the fact that Bing drew more money in checks from the Company than he did, that Bing had a lot of sickness with his wife and family, and that Bmg's attitude on the union question was incorrect Bing testified that Lamb also referred to- the fact that Reynolds had denied belonging to the Union, that he had taken Reynolds off the night shift and put him on the day shift in one of the best jobs in the shop, and that when he asked him if he was a member of the C I. 0 he had said no, and that he, Lamb, didn't know any different until Reynolds attended a convention of the Union in Cleveland. Closing his remarks, Lamb told Bing that he was "sticking out" his neck "pretty far" in taking an active part because he "had a good many years of service" with the Respondent, "think it over," and that when the time came for an election if the C 1 0 lost, what would his status with the Respondent be.21 Conclusions From the foregoing facts it is patent that the Respondent engaged in a course of conduct calculated to restrain its employees from exercising their rights to self- organization. It was the Respondent's duty to permit the employees to determine, without interference from it, whether they should organize for collective bargaining The Respondent did not allow its employees this liberty.`° The undersigned finds that by the above described activities of DeBruin , Jones, Brust, Hueckel , Fiske, Travis, Kline, Ross, and Lamb, the Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The undersigned credits Bing's version of the conversation. Lamb recalled a conversation on this occasion with Bing and that there was a request by him to leave the plant at 4.30 p in. 28 These findings are based upon the credible testimony of Bing. Lamb admitted having had a conversation with Bing concerning Reynolds and that he had inquired concerning ,Bang's activity in the Union. When Lamb was asked to explain the occasion for his interest in Reynolds and Bing be testified: "I have already testified to that, that I was interested in Reynolds. I figured that Reynolds and Bing were a couple of my proteges, in a way, and I went out of my way to do everything I could for them and they would make me a couple of good men, and I was sort of disappointed when I had heard they joined the Union I thought when they had joined the Union .that I had failed to do something to keep them satisfied I hadn't done, was the main reason for my talking to both of them, not that I wanted to do anything to either one of them. I told them that I had no hard feelings toward either one of them. It was perfectly all right with me. I was in a way trying to find out what the hell was wrong with myself, as I feel that's my job to keep the men satisfied. Reynolds and Bing were the two- . By their conduct and by running around the factory disregarding the rules. And because they had affiliated themselves, evidently, with the Union, without consulting me; they came to me with all their other troubles " See N L R B v William Davies Go, 135 F (2d) 179 (C C A 7), wheicin the Couit',tated It is the mandate of the statute that the employer shall not intrude himself into the picture The slightest interference, intimidation, or coeicion by the employer of the employees in the rights guaranteed to the employees by the statute constitutes an unfair labor practice in violation of Section 8 (1) of the Act. THE JEFFREY MANUFACTURING COMPANY 225 The Respondent while conceding in its brief that "some of these supervisory officers did inquire of their respective employees whether they belonged to the Union, "such activity does not constitute a violation of the Act, unless it interferes with, restrains, or coerces" the employees. This proposition is unsound both in law and in fact The Act unconditionally prohibits the Respondent from interfering with the employees' right to self-organization ; nor is it less true where the Respondent's acts do not have the desired effect. The undersigned rejects this contention of the Respondent w It is sufficient that the conduct engaged in normally results in interference, restraint, and coercion ; it is immaterial that the proscribed conduct does not produce the desired result. That the employees whom the Respondent's agents warned not to engage iii union activities and questioned concerning their interest in the Union neither observed the warning nor ceased their activities, but continued such activities, does not legitima- tize the Respondent's unlawful conduct. B. The alleged discriminatory discharge of Oswald J. Fillinger Fillinger started working for the Respondent in the summer of 1930 or 1931 and was continuously employed until his discharge on June 16, 1944. He served as a member of a road crew, installing machinery in foundries and coal mines, until 1938 or 1939, when he was transferred to the production department in the plant. After working as a grinder for about 4 years, he was assigned to a riveting crew, where he worked until his discharge. Fillinger's work record with the Respondent was satisfactory, although there is some credible evidence in the record that his attitude toward fellow employees, on a few occasions did not indicate 'a desire to cooperate. However, Fillinger was not non-cooperative and the instances were such as frequently occur among workmen working in small crews in plants of this type." The facts concerning Fillinger's discharge, as testified to by General Foreman Kline, Foreman Lamb, and Employment Manager Severns are in most respects not disputed' and may be briefly summarized as follows: On the afternoon of June 16, 1944, Lamb walked into the toilet, adjunct to the paint shop. Upon entering he noticed that Fillinger "was standing up against the end of the building, that is, the north end of the building „which is about three feet wide, that is, about three feet clearance, with his right arm and elbow resting on the water box that flushes the toilet with the cap that covers that x As pointed out in Elastic Stop Mitt Corp. v N L R B., 142 F (2d) 371 (C C A 8), cert den. 323 U S. 722: Where the conduct was coercive , as found here, it is not necessary to show that the coercive conduct had its desired or intended effect. The remedy furnished by the Act is available whether coercion succeeds or fails. See also N L R B v Crown Can Co , 138 F (2d) 263, (C. C. A. 8), cert denied 321 U S. 769; N, L. R B v. Link-Belt Co, 311 U S 584; Western Cartridge Co. v N L R B , 134 F (2d) 240, cert . denied 320 U. S 746, N L R B v John Engelhorn & Sons, 134 F (2d) 553 (C C A 3), Humble Oil & Refining Co v N. L R B , 113 F (2d) 85 (C C A 5), and N L R 'B v, Trojaii Powder Co, 135 F (2d) 337 (C C A. 3), cert den. 320 U S 768. 31 Although the Respondent contended in the answer that "the culminating reason for Fillinger's discharge was his smoking during working hours in the toilet room immediately adjacent to the paint shop . . contrary to respondent 's published rule ..." and "cumulative of the foregoing reason was the fact that Fillinger would not cooperate with his fellow employees . ." General Foreman Kline who discharged him, testified that the reason was "smoking in toilet during working hours " 82 The facts herein concerning the discharge of Fillinger are based upon the credible testimony of these witnesses . Their testimony , in most respects , supported by the testimony of Fillinger and other Board witnesses , was convincing. In contrast , the testimony of Fillinger in important items was clearly at variance with the overwhelming weight of the evidence In addition, his attitude and demeanor while testifying indicated to the undersigned a tendency to avoid frankness, especially with respect to matters of an adverse nature In those inst ances where there is any conflict between the testimony of Kline, Lamb, and Severns, and Fillmger, the undcisigned accepts then veision of the incidents , resulting in his discharge on June 16, 1944. 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD water box open, which is supposed to be closed-something wrong with it, you an get down in there and clean it out-with a [lighted] cigarette in his left hand, with a "No smoking" sign right up over the top of his head."' When Fillinger started to get rid of the cigarette, Lamb said "You might just as well finish smoking it, so far as I am concerned, you are through," and then told Fillinger to report to Kline. Fillinger proceeded to Kline's office, followed by Lamb. When they entered the office, Kline inquired, "What is the matter?" Lamb replied, "I caught this fellow smoking in the toilet and so far as I am concerned I am through with him; what do you want to do with him?" Kline, in the presence of Fillinger and Lamb, prepared a "Employment Termination" form indicating thereon that the discharge was for "misconduct" and explained in that part of the form "Foreman's detailed statement of, termination," the detailed reason was, "Smoking in Toilet during working hours." After Lamb left the office, Kline and Fillinger went to the employment office where the latter waited NN hi le Kline made arrangements with the time department for Fillinger to receive his wages Kline went to the time department, where he left the termination form, with instruc- tions to pay "this man" his wages This department after preparing a voucher covering the wages due Fillinger forwarded it, with the termination form, to the employment office. Employment Manager Severns upon receipt of these papers handed to-Fillinger the termination form, asking that he read it and told him if he did not agree with the reason given for his discharge, to write in the place provided in the form "Employee's version of Termination" his position in the matter, then gave to Fillinger the voucher covering his pay. Fillinger made no comment written or otherwise and signed the form Fillinger, during these conversations with Kline, Lamb, and Severns did not deny that he had been smoking in the toilet in violation of the Respondent's rule nor did he make any comment concerning the incident. The undersigned now turns to a consideration of the Board's contention that Fillin- ger was discharged because of his membership in and activities on behalf of the Union. Fillinger joined the Union in September 1942, about 1 year prior to the beginning of the Union's membership drive in the plant. He frequently, outside of working periods, spoke to fellow workers in behalf of the Union and when the Union chartered a local for the employees, he affiliated with it. Fillinger testified that he had never had a conversation with any managerial or supervisory employee of the Respondent about the Union nor had lie ever passed out C. I. O. leaflets at the plant gates as so many of the union adherents had done. On one occasion about 2 months prior to his discharge, Fillinger testified lie overheard Foreman Lamb tell employee Holmes, the "Old men belonging to the C I. O. won't last long." This testimony of Fillinger's is rejected. Lamb denied having any such conversation. Holmes, who was called as a witness by the undersigned, testified that Lamb did not, within the hearing of Fillinger or otherwise, make the statement attributed to Lamb. The undersigned credits Holmes' testimony. In addition, although the evidence is plain that the Respondent had knowledge of the membership in and activities on behalf of the Union by some of its employees, the record reflects that none of the activities of Fillinger came to the attention of the management n On the other hand, the record contains persuasive evidence that Fillinger 33 It is clear from the evidence that the employees, including Fillinger, were familiar with the Respondent's rule that " Smoking is positively prohibited on the factory premises except in our [Respondent 's] Cafeteria" and that the rule had by practice been altered to include the privilege outside of working hours, of smoking in certain other designated areas. Furthermore, "No Smoking" signs had for several years been prominently displayed in various parts of the plant It is conclusive that such signs were posted in the toilet adjunct to the paint shop on June 16, 1944. 34 The undersigned rejects the Board's contention that the activities of the Respondent, heretofore found to be a violation of Section 8 (1) of the Act, would warrant an inference that it knew of Fillinger's membership in the Union or his activities in its behalf , which were not of an outstand- ing nature. THE J EFFREY INIANUFACTURINC CO_N-IPA NY 227 was discharged because of his violation of the Respondent's "no smoking" rule and that the application of the rule to him was in accordance with the Respondent's usual practice. Furthermore, the undersigned believes that in view of at least one warning which was given Fillinger, and his not protesting or commenting on his discharge, he was fully aware of the reason resulting in his discharge. The undersigned concludes and finds that the evidence does not support the allega- tion in the complaint that Fillinger was discriminatorily discharged on June 16, 1944, or since that date had been discriminatorily refused reinstatement and will accordingly recommend that the complaint be dismissed as to him. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The undersigned finds that the activities of the Respondent set forth in Section III-A, above, occurring in connection with the operations of the Respondent, described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes, burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, the under- signed will recommend that the Respondent cease and desist therefrom and take certain affirmative action which the undersigned finds necessary to effectuate the policies of the Act. It having further been found that the Respondent, through statements made to its employees by representatives of the management and supervisory employees, interfered with, restrained, and coerced the employees in the exercise of the rights guaranteed them in Section 7 of the Act, the undersigned will recommend that the Respondent post notices in the plant that it will not engage in such conduct. Since the undersigned has found that the Respondent has not discriminated in regard to the hire and tenure of employment of Oswald Fillinger, the undersigned will recommend that the complaint as to him be dismissed. Upon the basis of the foregoing findings of fact and upon the entire record, the undersigned makes the following: CONCLUSIONS OF LAW 1. United Steelworkers of America, affiliated with the Congress of Industrial Organizations, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining , and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 4. The Respondent has not engaged in an unfair labor practice within the meaning of Section 8 (3) of the Act, by terminating the employment of Oswald Fillinger. RECOMMENDATIONS -Upon the basis of the above findings of fact and conclusions of law, the under- signed hereby recommends that the Respondent, The Jeffrey Manufacturing Company (Columbus, Ohio), its officers, agents, successors, and assigns shall: 1. Cease and desist from: (a) In any manner interfering with, restraining, or coercing its employees iii the exercise of the right to self-organization, to form labor organizations, to join or assist 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the United Steels orkers of America, affiliated with the Congress of Industrial Organi- zations, or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act (a) Post immediately in conspicuous places throughout its plant in Columbus, Ohio, and maintain for a period of sixty (60) consecutive days from the date of posting, notices to its employees stating that it will not engage in the conduct from which it is recommended that it cease and desist in paragraph I (a) of these recommendations, (b) Notify the Regional Director for the Ninth Region in writing within ten (10) (lays from the date of the receipt of this Intermediate Report what steps the Respondent will take to comply herewith. It is further recommended that unless on or before ten (10) clays from the date of the receipt of this Intermediate Report, the Respondent notifies said Regional Director in writing that it will comply with the foregoing recommendations, that the National Labor Relations Board issue an order requiring the Respondent to take the action aforesaid. It is further recommended that the complaint be dismissed insofar as it alleges that the Respondent has discriminated in regard to the hire and tenure of employment of Oswald Fillinger. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 3, as amended, effective November 26, 1943, any party or counsel for the Board may within fifteen (15) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Rochambeau Building, Washington, D. C., an original and four copies of a statement in writing setting forth such excep- tions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof Immediately upon the filing of such statement of exceptions and/or brief, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. As further provided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of the order transferring the case to the Board. JAMES C. BATTEN Trial Examiner Dated December 6, 1944. V