The Nubone Co., Inc.

In the Matter of THE NUBONE COMPANY, INC. and INTERNATIONAL LADIES' GARMENT WORKERS' UNION (A. F. L.) Case No. 6-C-847 -Decided June 12, 1945 DECISION AND ORDER Oai September 8, 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 affecting commerce, 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. No request for oral argument before the Board was made by any of the parties. The Board has consid- ered the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error'was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the respondent's excep- tions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the additions noted below: 1 In its exceptions, the respondent contends that "the Trial Examiner's conduct of the hearing, rulings on evidence, and cross-examination of witnesses, particularly those called by the respondent, operated to deprive the respondent of a full and fair hearing, evidenced an obvious attitude of bias in favor of the Union, and against the respondent." In its brief, the respondent adverts specifically to the following conduct of the Trial Exam- iner in support of this contention : (a) After counsel for the respondent and for the Board had examined President Seley, he was questioned by the Trial Examiner The respondent has directed our attention to the "attitude" of the Trial Examiner evi- denced by the portion of his examination in which he sought to ascertain from Seley why the respondent had refused to accept signed cards as proof of the Union's majority status In this connection, the Trial Examiner asked the witness to specify the union letters and leaflets which, according 62 N. L. R. B:, No. 49. 0 322 T HE NUBONE COMPANY, TNC. 323 to Seley, caused hun to doubt "the conditions under which those applica- tions [cards] had been secured" and to explain why the respondent in 1937 had been willing to accept the result of a card check as proof of the major- ity status of the Nubone Employees Association, but had refused such proof in .1943 with respect to the Union's claim of majority representation The Trial Examiner also asked Seley whether he had made any speeches to the employees in May 1937, prior to the formation of the Nubone Employees Association. (b) On direct examination by the respondent, Superintendent Potter testified that he had reported to Treasurer Seley that employee Klinger was spending more time than necessary away from his work, and I had a strong suspicion that it was on union activities." After counsel had com- pleted their examination of Jotter, the Trial Examiner asked him the following questions : Q. How did you know, A Jr Potter, when Mr. Klinger was leaving his work to talk to other employees that he wasn't arranging a picnic? The respondent characterizes this as an insinuation "amounting to almost sneering :" (c) Nowell, a Field Examiner of the Board, was called by counsel for the Board as a witness in rebuttal to testify concerning a written statement which he had taken from employee M. R Lemon Counsel for the respond- ent cross-examined Nowell at length concerning an incident which, counsel contended, impeached Nowell's credibility.' Counsel for the respondent then called Treasurer Seley to testify concerning the same incident Counsel for the Board objected; the Trial Examiner stated that he would only admit evidence that Nowell had committed a crime. After further colloquy, the Trial Examiner stated that he would "permit any questions which contradict any statement that Mr. Nowell made on the stand." Counsel for the respondent replied, "All right. That is exactly what I want to do," and was permitted to examine Seley at length After counsel for the respondent and for the Board had completed their examination of Seley, the Trial Examiner asked the following question: Q. Mr. Seley, are you prepared to say that any statement Mr. Nowell made while he was a witness on the stand was false? . Counsel for the respondent objected on the ground that the question was too general. The Trial Examiner in effect overruled the objection. With respect to the foregoing, the respondent contended that the Trial Exam- iner's statement that he would only admit evidence that Nowell had been convicted of a crime shows "lack of knowledge of the fundamental law of evidence," and that the above-quoted question indicates "lack of a sense of justice and fairness." I It appears that the Field Examiner , during a meeting in Treasurer Seley's office in connection with a representation proceeding, picked up and examined a pn n•ate paper on Seley's desk in Seley's absence. 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In view of the gravity of the charges levelled at the Trial Examiner's conduct, we have carefully scrutinized the record not only with respect to the specified matters mentioned above, but with respect to his entire conduct of the hearing, and are satisfied that the respondent's contention is without merit. Insofar as the respondent's contention is premised upon the fact that the Trial Examiner examined witnesses, we are unable to find any impropriety in his conduct 2 We are satisfied that the Trial Examiner's interrogation did not demonstrate any bias and was intended merely to clarify the evidence essential to a determination of the issues. Read in its context, it is plain that the question addressed to Superintendent Potter was of this character. Of similar nature was the question which the Trial Examiner asked Treasurer Seley in connection with the respondent's effort to impeach the testimony of Nowell.' Moreover, we note that Nowell's testimony involved an entirely collateral matter and that the Trial Exam- iner allowed the respondent considerable latitude in exploring this subject We are convinced and find that the respondent was accorded a full and fair hearing and that the record does not sustain the charge that the Trial Examiner was biased against it.' 2. We concur in the conclusion of the Trial Examiner that the respond- ent interfered with, restrained, and coerced its employees in violation of Section 8 (1) of the Act We base our finding to this effect not only upon the respondent's conduct in abetting the anti-union efforts of certain of its employees,' but upon the respondent's entire course of conduct, including 3 N L R B v Baldwin Locomotive Works, 128 F. (2d) 39, 46 (C C A 3) ; Bethlehem Steel Co v N L R B, 120 F (2d) 641, 652 (App D C ); N L R B'v Stackpole Carbon Co., 105 F (2d) 167 (C C A 3) 3 In regard to the Trial Examiner's statement , when Treasurer Seley was called as a witness in surrebuttal , that he would only receive evidence that Nowell had committed a crime, we would find nothing improper in thus limiting counsel in these circumstances See N L R B v Bold-win Locomotive Works, 128 F (2d) 39, 46 (C C A 3) But even if such a ruling were incorrect, the record shows that counsel in fact was permitted to interrogate Seley in a maunei which, counsel stated, was exactly what I want to do " 4 The statement which Nowell had taken from Lemon apparently was used by counsel for the Board in an effort to impeach Lemon's testimony After Lemon had given testimony indicating that the statement in certain respects did not incorporate what he actually had told Nowell , counsel for the Board called Nowell to testify concerning the circumstances under which the statement was made On cross -examination the respondent sought to impeach Nowell' s testimony as set forth above. We note that the Trial Examiner did not make any findings or discredit any of Lemon's testimony on the basis of this statement , and has made certain findings of fact which accord with Lemon's'direct testimony as a witness for the respondent G See Berkshire Knitting Mills v N L R B , 139 F (2d) 134 (C C A 3), N L 'R B v Acine- Lvans Co, 130 F (2d) 477 (C. C A 7), and cases cited in footnote 2 supra 0 The respondent excepts to certain of the Trial Examiner' s findings in this connection on the ground that they are based upon the testimony of Klinger , who, the respondent asserts, "had time and time again proven himself to be not only a double-crosser but untruthful " Upon the entire record, we agree with the Trial Examiner's findings In this regard we note that Klinger's testimony was corroborated, at least in part, by that of Treasurer Seley and Milford Lemon, witnesses called by the respondent. Among other things , Seley admitted that Klinger had visited his home and office, that during these visits he had discussed the employees' organizational activities . and that on one occasion he had called for Klinger in his automobile and had discussed this subject , and Lemon testified that in the latter part of June he and Klinger went to Seley 's home, wheie they discussed with Seley certain aspects of the organizational activity, including Klmger' s suggestion to delay an election THE NUBONE COMPANY, INC. 325 its domination of and interference with the formation and administration of the Personnel Committee and its contribution of support thereto, and its illegal refusal to bargain with the Union. 3. We agree with the Trial Examiner that the Personnel Committee is a labor organization within the meaning of Section 2' (5) of the Act, and that it was formed and administered in violation of Section 8 (2) of the Act. As found by the Trial Examiner, following the withdrawal of the UMW and shortly after a large number of employees had designated the Union as their bargaining representative, the respondent presenterd the plan for the Committee to the employees during working hours; permitted the employees to make their nominations in the plant during working hours; scheduled the election; prepared the ballots; and posted the results of the election And, although President Seley in his speech to the employ- ees did not specifically advert to the handling of grievances, wages, rates of pay, hours of employment, or other conditions of work as such, it is plain from the timing and content of his speech, his discussion with the Committee immediately following the election of its members, and the respondent's subsequent dealings with the Committee,' that the Committee was formed and existed for the purpose of dealing and did deal with the respondent concerning such matters. That its formation resulted from the respondent's desire to frustrate organization by the employees in a union of their own choosing is manifest from the circumstances preceding and surrounding its creation. Upon the entire record, we conclude and find that, by dominating and interfering with the formation and administration of the Personnel Committee and by contributing support to it, the respond- ent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act.' 4. We concur in the Trial Examiner's conclusion that the Union was on June 29, 1943, and at all times thereafter has been, the exclusive repre- sentative of the employees within the appropriate unit. In reaching this conclusion, the Trial Examiner counted the general A. F. of L. authoriza- tions signed by Rose Heuberger and Dorothy Conley, notwithstanding the fact that they did not subsequently sign cards on which the Union was des- 7 Among the suggestions submitted by the Committee and considered by the respondent were those for wage increases , weekly rather than semi-monthly payment of wages, light facilities over machines , repair of machines , morning and afternoon rest periods , a five -minute oiling and clean- ing period , repair of an elevator and a drinking fountain , permission to smoke during rest and lunch periods, and an immediate payment of attendance bonuses Several of the Committee's suggestions were adopted by the respondent s In addition to the cases cited in the Intermediate Report, see Matte , of C Nelson Manufacturing Company, 15 N L R. B. 1051 , enf'd N L R B v C Nelson Manufacturing Company, 120 F (2d) 444 (C C A 8), Matter of Precision Castings Company, Inc, 30 N L R B 212, enf'd N L R B v. Precision Castings Company, Inc, 130 F (2d) 639 (C C A 6), Matter of Monteith Bros Co. 34 N L R B 896; Matter of Imperial Lighting Products Company, 41 N L R B 1408 326 DECISIONS OF NATIONAL LABOR RELATION S BOARI) ignated by name. We agree with the Trial Examiner's findings.° however, even if it be assumed that these two cards, or either of them, do not consti- tute valid designations. we should nevertheless adopt the Trial Examiner's conclusion that the Canon has been designated as the statutory representa- tive, since it is plain that the omission of the two general A F of L authorl- zations, would not affect the Onion's majority status 5 With respect to the Taal Examiner's finding that the respondent refused to bargain collectively in violation of Section 8 (5) of the Act, tile respondent urges, in substance, that its refusal to bargain until the Union's majority status was established in an election was motivated by a genuine doubt as to whether the Union had been designated by a majority of the employees within the appropriate unit We, like the Trial Examiner, reject this contention. Prior to its initial refusal to bargain, the respondent had embarked upon a course of conduct violative of Section 8 (1) and (2) of the Act, which was designed to destroy the Union's majority status. We have frequently held that an employer cannot be heard to say that he enter- tains an honest doubt of a union's majority status where he conducts a campaign to destroy that majority.'° For this reason, as well as the other reasons set forth in the Intermediate Report, we adopt the Trial Exam- iner's conclusion that the respondent's refusal to bargain contravened Section 8 (5) of the Act. ° Designation of a parent organization is a valid designation of its affiliate See N L R B v Bradford Dyeing Association, 310 U S 318, N L R B v Franks Bros Co . 137 F (2d) 989 (C C A 1) And we agree with the Trial Examiner that the testimony of a signer as to hei subjective state of mind is not sufficient to ovecoimc the effect of her overt action in having signed an authorization card See N L R B v Sunshine Alining Co. 110 F (2d) 780 (C. C A 9). r° See, e g , Matter of Chicago Apparatus Company, 12 N I. R B 1002, enf'd N L R B v Chi- cago Apparatus Company, 116 F (2d) 753 (C C A 7), Matter of The Burke Machine Tool Com- pany, 36 N L R B 1329, enf'd as modified N L R B v The Burke Machine Tool Company, 133 F (2d) 618 (C C. A 6); Matter of Twin City Milk Piodncers Association, 61 N L R B 69 At the hearing, presumably in an effort to support its contention that its refusal to bargain was motivated by a genuine doubt as to the Union's majority status, the respondent offered to prove, in sum, that on December 29, 1943, 6 months after its initial iefusal to bargain, the Regional Director submitted a proposed agreement in settlement of chaiges that the respondent had violated Section 8 (1) and (2) of the Act, that on January 10 1944, the respondcnt replied, stating that the agreement in the main was satisfactoi y, but that the notice to be posted to the eiiplo} ees in pun - suance of the agreement was not, and suggesting certain changes in the notice; that on January 13 the Regional Director in turn replied that the suggested changes were not satisfactoi j , that on January 18 the Regional Diiector withdrew the proposed settlement agreement, stating that inasmuch as investigation had disclosed additional information, 'he was prepared to request settlement of allegations of violation of Section 8 (1), (2), and (5) of the Act, and that on January 24 the respondent stated, inter alma, that it would not sign an agreement iequirmg it to iecogmze the Union, since "there has been no certification aftei an election," and offeied "to entci into a consent election," We are of the opinion that the Tiial Exanimei's iejection of the offer was proper Even if the respondent had offered to agiee in full to the proposed settlement agreement submitted by the Regional Director, this would not have established its good faith in insisting upon an election since "in requiring the Union to reestablish its majority after the commission of unfair labor practices, the respondent imposed upon the Union an undue obstacle to collective bargaining " Matter of The Burke nlachtne Tool Company, cited supra, at page 343 This is especially true•in the instant case, in which approximately 6 months had elapsed between the oiigunal refusal to bargain and the commencement of the negotiations foi settlement THE NUBONE COMPANY, INC ORDER 327 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 Nubone Company, Inc., Erie, Pennsyl- vania, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with International Ladies' Garment Workers' Union (A F. L.) as the exclusive representative of all its produc- tion and maintenance employees at its Erie plant, including stockroom clerks, stores-department clerks, and shipping clerks, but excluding office workers, building maintenance employees, watchmen, janitors, janitresses, and all supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effec- tively recommend such action ; (b) Dominating or interfering with the administration of the Personnel Committee, or with the formation and administration of any other labor organization , and from contributing support to the Personnel Committee, or to any other labor organization; (c) Recognizing the Personnel Committee as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment ; (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization; to form labor organizations , to join or assist International Ladies' Garment Workers' Union (A. F. L ) or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining 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 effectuate the policies of the Act: (a) Upon request, bargain collectively with International Ladies' Gar- ment Workers' Union (A. F. L.) as the exclusive representative of all its production and maintenance employees at its Erie plant, including stock- room clerks, stores-department clerks, and shipping clerks, but excluding office workers, building maintenance employees, watchmen, janitors, jani- tresses, and all supervisory employees with authority to- hire, promote, discharge, discipline, or otherwise effect changes in the status of employ- ees, or effectively recommend such action, with respect to rates of pay, wages, hours of employment, and other conditions of employment; (b) Withdraw and withhold all recognition from the Personnel Com- mittee as the representative of any of its employees for the,,purpose of dealing with the respondent concerning grievances, labor disputes, rates of 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pay, wages , hours of employment, or other conditions of employment, and completely disestablish the Personnel Committee as such representative ; (c) Post at its plant at Erie , Pennsylvania, copies of the notice attached hereto, marked Appendix A. Copies of said notice, to be furnished by the Regional Director for the Sixth Region, shall , after being duly signed by the respondent 's representative , be posted by the respondent immediately upon receipt thereof, and maintained by it for sixty ( 60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered , defaced, or covered by any other material ; (d) Notify the Regional Director for the Sixth Region in writing, within ten ( 10) days from the date of this Order, what steps the respond- ent 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 Rela- tions Act, we hereby notify our employees that : We hereby disestablish the Personnel Committee as the representa- tive of any of our employees for the purpose of dealing with us con- cerning 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 adminis- tration of any labor organization or contribute financial or other support to it. We will bargain collectively upon request with the International Ladies' Garment Workers' Union (A°. F. L.) as the exclusive repre- sentative of all employees in the bargaining unit described herein with respect to rates of pay, hours of employment, or other conditions "of employment, and if an understanding is reached, embody such under- standing in a signed agreement. The bargaining unit is: All production and maintenance employees at the Erie, Pennsylvania, plant, including ,stockroom clerks, stores-department clerks, and shipping clerks, but excluding office workers, building maintenance employees, watchmen, janitors, janitresses, and all supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action. 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 THE NUBONE COMPANY, INC. 329 organizations, to join or assist the above-named recognized representative or any other labor organization, to bargain collectively through represen- tatives 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 NUBONE COMPANY, INC. (Employer) By---------------------------------------------------------------------- (Representative ) (Title) Dated .......................................... This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT Messrs. James A. Shaw and W. G. Stuart Sherman, for the Board. Gunnison, Fish, Gifford & Chapin, by Mr. A. Grant Walker, and Mr. C. E. Seley, of Erie, Pa., for the respondent. Douglas & Handler by Mr. Sidney G. Handler, of Harrisburg , Pa., for the Union STATEMENT OF THE CASE Upon a charge filed July 22, 1943, by International Ladies' Garment Workers' Union, affiliated with the American Federation of Labor, herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Sixth Region (Pittsburgh, Pennsylvania), issued its complaint dated March 4, 1944, against The Nubone Company, Inc., herein called the respondent, alleging that the respondent at its plant in Erie, State of Pennsylvania, had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (2), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, herein called the Act. Copies of the complaint accompanied by notice of hearing were duly served upon the respondent, the Union, and the Personnel Committee, the alleged 8 (2) organization. In respect to the unfair labor practices , the complaint, as amended at the hearing, alleged in substance that from on or about May 15, 1943, and at various times there- after to the date of the complaint, the respondent . ( a) made statements disparaging the Union, advising, urging and warning its employees to refrain from joining the Union, and discouraging membership and activity in the Union; (b) interrogated its employees concerning their affiliation with the Union; (c) made efforts to ascertain the extent to which its employees had become affiliated with the Union, (d) threat- ened to discharge employees for their activities on behalf of the Union ; (e) threatened to close and sell (or one or the other) the plant if the Union continued its activities ; (f) on and after May 25, 1943, dominated and interfered with the formation and administration of a labor organization known as the Personnel Committee , and con- tributed financial and other support thereto, and ( g) on and after May 25, 1943, and particularly on or about June 30, 1943, refused to recognize the Union as the exclusive representative of its employees in the appropriate unit, and fail d and refused to bargain with it; although it represented a majority of the employees in the appropriate unit and had.requested recognition, and that by such conduct the respondent engaged in and was engaging in unfair labor practices Naithin the meaning of Section 8 (1), (2) and (5) of the Act. 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The respondent's answer, dated March 11, 1944, denied the commission of the alleged unfair labor practices, took issue with the alleged appropriate unit,' and stated that it was without knowledge as to whether the Union ever represented a majority of its employees. - Pursuant to notice a hearing was held on March 17, 1944, at Harrisburg, Pennsyl- vania, and on March 21, 22, 23, 27, 2S, 29, and 30 at Erie, Pennsylvania, before the undersigned Trial Examiner, duly designated by the Chief Trial Examiner The Board, the respondent, and the Union were represented by counsel Full opportunity was afforded all parties to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. At the end of the hearing, a motion to conform the complaint to the proof as to formal matters was granted. Oral argument was waived at the close of the hearing, but the respondent and the Board's attorney filed briefs. 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 The respondent is a Pennsylvania corporation' with its principal office and place of business in Erie, Pennsylvania,' where it engages in the business of manufacture sale, and distribution of corsets and similar articles, chiefly on a mail order basis During the year 1943, the respondent purchased raw materials of a value in excess of $200,000, of which about 80 percent came from points outside the State of Penn- sylvania. During the same year the value of the respondent's finished products was in excess of $400,000, of which more than 50 percent was shipped to points outside the State of Pennsylvania. The respondent admitted that it is engaged ih commerce within the meaning of the Act. IT THE ORGANIZATIONS INVOLVED international Ladies' Garment Workers' Union (A F L.), is a labor organization admitting to membership employees of the respondent The Personnel Committee is an unaffiliated labor organization representing employees of the respondent III THE UNFAIR LABOR PRACTICLS A. Interferennce, restraint, and coeiciot! I Background (a) Events prior to 1943 In 1936 or 1937 the Union sought to organize the employees of the respondent and about May 26, 1937, a representative of the Union requested recognition, claiming to represent a majority of the employees The respondent's president, C Clyde Selcy 1 The complaint alleged that all the respondent's production and maintenance employees at its Erie plant , excluding foremen, supervisors, guards, watchmen, clerical employees, salaried employ- ees, and any other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. The responUnt's position is that the watchmen are maintenance employees and should be included, and that the factory and stockroom clerks work in the shop, have duties closely connected with production , and should be included. 'The complaint was amended to change the allegation as to the State of vicoiporation from New Jersey to Pennsylvania 3 The respondent also has a subs,diaty co t poi atiOn plant at Port Pal Housie, Ontario Canada TIIL NUBONE CO\9PAN\', INC. 331 stated that he would have to take the platter up with the Board of Directors He made an appointment to discuss the matter with the Union's representative at a later elate, but when that time came the representative said she was not yet ready to talk to him. After the Union had made some headway in organizing, the Employees' Associa- tion of NuBone, herein called the Association, was organized in the last week of May, 1937, and employee Glenn Klinger became its president Klinger testified that the Association was organized when a hand vote was taken following a speech by President Seley i Seley testified that the Association was recognized ohen its attorne.v presented signed cards representing 98 percent of the employees, and that he, pet sonally, checked them against the pay roll.' After its recognition, the Association met with management and submitted a written contract but never succeeded in having it signed Because of this, Klinger resigned In a year and a half or two years the Association became defunct and no further organized union activity occurred until 1943 (b) Events in 1943 prior to the Union's organizational campaign In April 1943, District 50 of the United Mine Workers, herein called the U ]NI \V started an organizational drive at the plant and procured a substantial number of application cards. Its representatives met with President Seley on May 10, 1943, to request recognition, claiming a majority. He told them that the only way to establish their claim was by an election On May 15, 1943, the U M W filed a petition for investigation and Certification of Representatives pursuant to Section 9 (c) of the Act e , Early in May 1943, one of the employees gave Klinger a handbill announcing a meeting of the U. M. W.' Klinger presented the matter to Charles E. Seley, treasures of the respondent and brother of President Seley, telling him that he thought he ought to know that there was union activity going on. Seley asked Klinger if he was going to the meeting that night, and Klinger replied that after his last experience with union activities he had sworn that he would never get mixed up in them again 8 One evening about 10 days later, Klinger, without invitation, went to Treasurer Seley's home.° There he told Seley that the U M. W had signed up 85 percent of the employees in the manufacturing department. Klinger suggested that he might be able to revue the Association, of which he had been president, but Seley disapproved of the idea"' According to Klinger, "The talk finally drifted around that there was a rumor that the A. F of L. was going to try to get in the-put on a membership drive " Seley said he had heard that there was going to be an A F of L meeting " Seley outlined the expected developments with the A F of L in the picture, explaining that there a Another Doard witness testified that the Association was organized after Piesident Seley had made a speech to the employees in the plant Seley denied that he had spoken to the employees before the Association was formed, testifying that the only speech he made at that time was one made a few days after the Association had established itself as bargaining representative It is cleat that a speech was made on June 2, 1937, as testified-by Seley Since the complaint did not allege the commission of any unfair labor practices in 1937, the undeisigned finds it unnecessary to iesolve the conflict in testimony as to whethei an earlier speech was made ", The Association's nienrbeiship embraced office-clerical as well as product ion employee 0 An amended petition was filed on May 19, 1943 7 The first U M W meeting was held the night of May 5, 1941 8 During May and June, Klinger had a number of conversations with Treasurer Seley which were testified to by both parties Each witness appeared reluctant to relate all that was said in some of the conversations The findings of fact as to these conversations and what was said are the result of piecing together parts of their testimony ° Seley testified that he was a little surprised to see Klinger. Klinger said that he thought he had told Seley that he "would probably be up to see him that evening " 10 According to his own testimony, Seley said, "Glenn, that is entnely up to you, but I would hate to see you try that because it seems to me that the union couldn't help but feel that the Company was fostering such a movement , whether it was true of not u The parent organization had not yet designated a particular union. 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 0 would be three possible ways to vote in an election-A F of L., U M. W , and neither- "and before the election, the ones that signed up A F of L cards would be instructed to vote `no union' . "- Seley asked Klinger to try to get U. M W. applicants to sign over to the A F. of L Klinger said he would have difficulty selling A. F of L. when he did not know anything about it. "And then the fact was mentioned that there would soon be an A F of L. meeting." and that he should attend it and perhaps pick up a few selling points, according to Klinger's testimony. About this time (the record is not clear on whether before or after) some person whose identity was not brought out at the hearing phoned the Central Labor Hall13 and suggested that "they wanted organization" at the plant. This information was turned over to Wilson C Harper, chairman of the organizational committee of the Central Labor Body, and on May 17, 1943, Harper wrote to Charles Seley, saying that his name had been given to him and that, if Seley felt he needed organization and was interested, he should phone him. Seley replied by letter on May 20, "I am not in a position to discuss with you the subject of organizing this plant" 2 The Union's organizational campaign About May 15, 1943, employees Milford Lemon, Robert Babo, Frederick Weber, Harvey Rathbun, and Moses Crosby went to the Central Labor Hall and told a repre- sentative there that the U M. W was organizing the plant and that they would prefer to have the A. F. of L. The representative gave them some A. F of L authorization cards14 and told them to get as many signed up in a hurry as they could, because, if the U M W. asked for an election, the A. F. of L. would get on the ballot. In the next few days Lemon and Babo procured the authorizations of some 10 or more employees in the production and maintenance departments. Michael Johnson, international representative of the Union, pursuant to the directions of the president of the Union, went to Erie on May 21, 1943, and attended the meeting which had been scheduled for that evening. At this meeting, attended by 12 or 15 employees of the respondent, Johnson gave Harper authorization cards for the Union to be used in place of A F. of L cards A few days after this meeting Klinger had another conversation with Charles Seley abount union matters, and told Seley the approximate number of employees that had attended the meeting. Klinger testified that he told Saley he did not like the idea of getting the A F. of L in, that he was afraid it would backfire, and that Seley had replied that that was a chance that had to be taken Either in this conversation or another one about the same time, after closing time, in the garage in back of the plant," Seley told Klinger' that he did not think it was necessary to have a union, because the employees could get what they wanted without a union. Klinger thereupon said that he would get in touch with three of the girls who were active on behalf of the U. M. W and who did not want to switch to the Union and would ask them if it would be all right if he would draw up a list of the demands they wanted and to submit it to management and to agree that, if they could get the demands satisfied, 12 This finding is taken from Klinger's testimony Seley was not asked about this statement The undersigned credits Klinger's testimony and deduces from it and other testimony that several employees who were opposed to any "outside" union were to try to convert U M W. applicants to the Union so as to split the vote At the expected election the employees in on, this scheme would vote "neither," expecting that the result would be that those in favor of no union would receive a majority Whether or not the idea originated with Seley or with one of the anti-union employees, Seley knew of the scheme and fell in with it 13 The offices of the Central Labor Body, an organization of all A F of L organizations in Erie, 14 These cards specified no particular union but authorized "the International and National Unions in good standing with the American Fedeiation of Laboi" to iepresent the signeis , 15 Seley denied having had any conversation with Klinger in the garage but admitted that Klinger might have spoken to him as lie was driving out of the plant THE NUBONE COMPANY, INC. 333 they would not need a union i° Pursuant to this conversat on he did, early in June, prepare such a list and show it to those girls, and they agreed that if the respondent satisfied those demands they would not need a union Klinger then presented the list to Seley and informed him that the only way that the girls could be kept in line was to grant all the requests i` Klinger also told the girls "to stay solid" U M W until they saw whether or not the demands would be met, and, if they should not be met, then his advice was that they should transfer to the Union Klinger testified that he reported this to Charles Seley is After the May 21 union meeting, Johnson returned to Harrisburg and told the Union's attorney, Handler, to write the respondent of the Union's interest in organizing the respondent's employees Handler did so o'n May 26, warning the respondent not to enter into collective bargaining with any other organization. At a Union meeting on May 28, Johnson informed the employees present that the U. M. W. was going to withdraw. Harper then requested that the Union's cards be signed to replace the A. F. of L. cards. On June 1, 1943, the U M W. regional director telephoned Pete McCagno, its dis- trict representative, and told him that the Union was interested in organizing and that, pursuant to an understanding arrived at between the unions, U M W was to withdraw in favor of the Union McCagno called a meeting for that night and invited Harper to attend. Harper did so and both he and McCagno spoke to the U M. W applicants The U. M. W adherents apparently did not favor a withdrawal, but Harper told them that the two international unions had agreed on that procedure That same day the U M W wrote to the Regional Director of the Board requesting withdrawal of its petition for certification and the Regional Director approved the withdrawal and so notified the U. M. W. and the respondent on June 3 On June 4, 1943, the respondent sent to its employees a letter telling them that there were 2,000 past due orders, that a year earlier an equal number of employees would have turned out 1,000 more garments each month and that [it] had operated at a loss for the first four months of the year despite the volume of business It concluded with an appeal for suggestions for solving the problem of getting orders out. Attached to the letter was a blank form headed, "I believe the following suggestions will help to get out `back orders' and bring about better general conditions " Klinger testified that he answered this letter by making a list of suggestions which he delivered to Charles Seley.' 19 Klinger was vague about dates His testimony was such that this could have occurred anywhere from May 23 to June 24 The undersigned believes it possible, however, that this conversation and subsequent action taken pursuant thereto took place between May 28 and June 15 17 This conversation was in part confirmed by Seley, who testified that Klinger would drop into his office after 5 p in to talk to him, and on one occasion Klinger asked "what the Company could offer these girls if they wouldn't join this union " Seley testified that his reply was that the respondent could offer nothing "under those circumstances " "The time when he told this to Seley was not stated, but the undei signed believes that Klinger made this statement to Seley about June 20. 11 Of the two lists which Klinger testified he submitted to Charles Seley, only the list made on the furnished form was produced at the hearing If this list was delivered only in response to the respondent's request for suggestions for improving the back-order situation , his suggestions were peculiarly irrelevant, except insofar as a satisfaction of the employees' demands regarding wages and working conditions would indirectly speed up production, for all his "suggestions" concerned such demands, with the exception of the last one, which was, "a closed shop and check off system if so desired by majority of employees " Likewise, if Klinger was merely making a response to the respondent's letter, it is odd that he should conclude his list of suggestions with the statement, "This agreement to be in effect when approved by the company and 75 percent of employees in the manu- facturing dept " The two quoted passages induce the bndei signed to believe that whether or not there were two lists of suggestions made by Klinger, the one intioduced in evidence was the list of demands by which Klinger expected to induce the U M W. adherents to give up the idea of an "outside" union 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the evening of June 4, a joint meeting of the U. M. W and the Union was held and the withdrawal of the U. M. W. again was discussed. Schneider, an organizer for the U. M. W, told the applicants to the U. M. W that his union could not take them and that he was putting them in the hands of the Union In another conversation between Klinger and Charles Seley in the latter's office early in June, 1943, Seley told Klinger that there were certain rumors to be spread around to make the employees afraid of joining the Union. Klinger suggested that Moses Crosby, a machine repairman, get around among the girls more than he did and asked if Crosby was "all right." Seley replied that Crosby had "been taken care of."20 - On Saturday morning, June 19, 1943, Stuart L Potter, then superintendent of manufacturing, reported to Charles Seley that Klinger was apparently very active in organizational work, soliciting members'' Seley apparently was disturbed by this report, which indicated to him that Klinger was guilty of duplicity in trying on the one hand to make him believe that a union was not necessary and vet on the other hand engaging actively in organizing such a union'' The next da' . Sunday, therefore, Seley phoned Klinger that he was driving o'-er to see him Seley drove to I^linger's house, picked Klingei up, and droi e around the corner and parked the car. There Seley told Klinger he wished Klinger would make imp his mind whether he was "going to get on the bandwagon or get off of it "2 According to Klinger, Seley was "rather peeved"" and said that Klinger "could tell the Labor Board about it if he wanted to" and that "several should have been fired for their activities " Klinger understood the latter statement to refer to himself Seley said that it did not make any difference to him what Klinger wanted, but he thought Klinger ought to be able to make up his mind. Klinger replied, according to Seley, "I guess you are right " Seley explained to Klinger that the respondent was contemplating forming a personnel committee and they wanted him to act as the head of it According to Klinger, Seley said that they "wanted somebody that was in complete accord with management." Klinger replied that he could not be of any use as head of the committee because he "couldn't do anything with the girls any more" because he "had switched back and forth so much that they didn't, any one of them, know" how he stood Seley, according to Klinger, said that "it was very foolish," that Klinger "should have stopped the thing before . it got that far." Klinger replied that a snowball could not be stopped half way down the hill and that "it was too far gone for any one person now to try to stop it 23 On June 24, since the demands submitted by Klinger to Seley in an effort to mollify the U M W adherents had not been acted on, Klinger told employee Rosalia Wuen- schel to pass the word along to sign the Union's cards, which he then handed to her Wuenschel did so and turned over to employee Helen Olson the signed cards which she had collected Olson turned them over to Klinger who delivered them to I-iarner On an evening during the latter part of June," Klinger asked Milford Lemon to 20 This conversation is taken front Klinger's tcstuuonp Selev testified that lie did not remember any reference to Crosby in any conversation with Klinger 21 Potter testified that he merely suspected Klinger because Klinger was awai front his work .o much and because he knew Klinger's penchant for politics He did not speak to Klmgei about h', absence from his work Potter had made othei reports on Klinger to Seley 22 The undersigned believes that Seley was disturbed by the prospect that enough of the former U M W girls might swing to the Union to give it a majority a This quotation is from Klinger's testimony Seley testified he told Klinger lie thought Klinger should make up his mind whether he wanted a union or did not want a union Seley admitted that lie was "irked" with Klinger and testified that his piincipal purpose in gmng to see Klinger was to relieve his feelings. 2, The undersigned credits the testunom as ahoy, related 26 The undersigned believes that this was the evening of June 24 THE NUBONE COMPANY, INC. 335 accompany him to Charles Seley's home. Lemon picked Klinger up in his car and they drove to Seley's home. There Klinger told Seley he thought maybe he could undo some of the damage that had been done. Seley replied that he did not know just what Klinger meant, but that he did not know how any of the damage could be undone, and so far as he was concerned there was just one answer and that as an early election Klinger suggested that the respondent attempt to delay the election \dhile he sought to undo what had .been done.' From the foregoing facts the undersigned finds that the respondent did not maintain the strict neutrality with respect to its employees' organizational rights that is required of it by law but on the contrary it abetted the anti-union efforts of certain of its employees . The respondent, therefore, has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. Domination of and interference with the formation and administration of a labor organization 1. The formation of the Personnel Committee Between 10 30 and 11 o'clock on the morning of June 25, 1943, President Seley phoned Superintendent Potter and told him to send a fexi gu Is down to his office 21 About six girls were sent to Seley's office. There, in the presence of Treasurer Seley, President Seley told them that, in response to the letter he had sent to employees on June 4 calling for suggestions , he had received a suggestion for a personnel or sug- gestion committee that could come to him directly with any suggestions or complaints that were raised in the factory section and he wanted to know what they thought of the idea. The majority of the girls favored the idea, but Wuenschel, one of those present, asked Seley if he thought it was proper to form "an inside union" in view of the fact that "an outside union" had already been formed. President Seley replied that this "wasn't a union ; it was merely a committee," and that so far as he knew there was no union active.20 Seley then dismissed them, saying that he would call the entire factory section together before noon and put the matter up to them At 11 :45 a m., and while on the respondent's time, the production employees' were summoned down to the second floor of the plant There both Seleys and Potter were present, and President Seley addressed the gathering He told them that he had received the suggestion of a personnel committee in response to the letter which he had sent to the employees on June 4 31 He explained that by "Personnel Committee" he meant a committee through which they "could reach the officials of the company directly in regard to any problem, suggestion, or recommendation . It might be an improvement in the product or method of construction In fact it might he anything either for your good or the good of the company." He stated that he liked the sugges- n The undersigned believes that Klinger was referring to his act of telling the U \I R' adherento to switch to the Union, and that would place this visit on or after June 24 The undersigned furthei believes that the purpose of Klinger 's visit was to seek a return to-Seley's good graces -18 At one point in his testimony Seley said that lie did not know which girls Potter would select At another point he testified that he told Potter which girls to select 29 Seley testified that he knew the U. M W had withdrawn He made no effort to check \\'uen schel's statement 80 Except for tWo stenographers who took down the speech , there were no office employees present 31 Both Seleys testified that this suggestion came from Klingei 's reply. The list of suggestions Klinger made has already been discussed . There was nothing in it about a committee of any kind, and Klinger testified he had no such idea in mind Charles Seley testified that Klinger orally amplified his written suggestion . Both Seleys also testified that Klinger had as early as April, 1943, orally suggested such a committee The undersigned believes Klinger's oral suggestion was for the revival of the 1937 Association and that his written proposals were for a contract with such an organization 336- DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion and would have acted on it sooner but for the fact that he had "been laid up quite a large part of the time these last three months " He told them that the respondent approved the suggestion, but that to get an indication of how the employees felt about it he had called in a few of their co-workers, naming the girls he had spoken to a short while before, and that those girls had approved of the idea He then asked them to raise their hands if they approved the plan for a committee After a show of hands he told them that the respondent was not going to appoint the committee but it would try to help them as much as it could ; that between 12 30 and 1 •00 o'clock they would he given an extra free half hour to discuss whom they wanted to represent their respective sections or departments and that they should be prepared to cast a ballot later in the day. He suggested that the first and third sections, being the larger ones, might have two representatives and section two being smaller might have one; and he assured them that the respondent would meet with the whole committee or any one or more delegated by'them The witnesses' estimates of the number of persons raising their hands in approval of the idea in response to President Seley's call for a show of hands varied from "a few" to "90 percent'" Apparently the hands were not counted, but Clyde Seley testified that they were "preponderantly in favor of it "33 Some of the minor supervisors took part in the hand vote Several of the employees were away from the plant at this time The employees normally had from 12 to 12 30 for lunch, but this day they were allowed the extra half hour with pay as announced by President Seley. The respondent had run off a number of ballot cards on its multigraph machine and at about 3 p in that day Charles Seley took them to the factory on the third floor, where he gave them to one of the girls for distribution Apparently this girl gave them to girls in each of the three sections who passed the cards around their respective sections After the voters had written their choice of committeeman down, the cards were collected by one of the girls and were returned to Charles Seley The girls in the first section did not turn in any cards, and shortly thereafter President Seley called the girls of that section out to the hall and asked them why they had not voted They told him that they did not consider it a secret ballot.33 Seley replied that he did not care whether they used a ballot or not and asked if they had made a selection." One of the girls stated that they had and gave him the names of Rose Wuenschel and another as the two representatives chosen. That night Superintendent Potter posted on the time clocks a notice giving the names of the representatives chosen for the Personnel Committee, hereinafter called the Committee. Altogether eleven members were chosen. The office force was not represented thereon 2. The functioning of the Personnel Committee That same day, after the election, President Seley called the Committee to his office and addressed them from prepared notes. After congratulating them and speaking of their obligation and opportunity to serve both respondent and employees, he said that, in addition to a suggestion for the formation of the Committee, a suggestion had come to him for higher pay. He then told them that the respondent had taken up that matter with the Wage and Hour Division of the Department of Labor, that the e" The undersigned regards it unnecessary to decide whether or not a majority of the hands were raised. 33 The ballot card had a space for the voter ' s signature on it 31 Asked on direct-examination for the respondent if the management had anything to do with conducting the election , Clyde Seley replied, "Not at all " On cross-examination he was asked, 11. . if you had no interest in this election and took no part in it , why would you go upstairs and inform yourself as to why the girls in Section One didn't vote?" He answered "Because there was- it wasn 't carrying out the suggestion , and I wondered if they misunderstood me, misunder- stood my suggestion " THE NUBONE COMPANY, INC. 337 respondent had approved a general wage increase, but that it would take some little time for the proper government division to act upon the application. He said it was "not unusual under such, discouraging conditions" for rumors to get started that the respondent intended to close its plant and go out of business, and he assured them there was no truth in it He told them how lie had gone to Mayo Brothers Clinic at Rochester, Minnesota, about a year before and been told lie had high blood pressure and would have to work "under a condition which didn't bring an excessive amount of mental turmoil and strife" if he wanted to continue to live and to work. He stressed the need of cooperation in overcoming the back-order situation and concluded by saying that it would be a personal favor to him because of his health condition if they would encourage the employees to do their level best in their individual jobs and would encourage them to make suggestions and to cooperate with the respondent. He suggested that they elect a chairman to take the suggestions down to him. A few days later,, Crosby,35 one of the committee, was elected chairman. Crosby and Wuenschel were not present when he was elected chairman Wuenschel testified that only three or four attended the meeting, which took place in the cutting room where Madison worked, and that after the meeting had taken place she was notified that Crosby had been elected. Thereafter, the Committee met three or four times in the plant, prepared written lists of suggestions concerning terms and conditions of em- ployment. In due course written replies adopting some of the suggestions were sent back to the Committee by the respondent. No meetings were held between September 1943 and the date of the hearing but there was no indication that the Committee was defunct. With regard to the wage increase, Clyde Seley testified that the application for approval thereof was filed on June 28, 1943, after they "had spent days" with the Erie office of the Wage and Hour Division of the Department of Labor getting the application in acceptable form, that the negotiations with the Erie office started in early June, and that the War Labor Board approved, and the respondent granted, a 10 percent raise about August 9, 1943 In July 1943 the Union's attorney corresponded with the Regional Director of the Wage and Hour Division in Philadelphia about whether such an application had been filed. On July 27, 1934, the Regional Director of that Division wrote that such an application had not been filed by the respondent according to its records.36 The undersigned finds that the respondent did make such application, but that the Philadelphia office did not receive the applications until after July 27: The activities of the Committee in presenting grievances and requests for improve- ment of the employees' terms and conditions of employment are sufficient to constitute it a labor organization within the meaning of the Act37 even though the respondent 35 Crosby is a salaried employee. 3e A day or two after receipt of this letter the Union distributed among the respondent's employees a circular quoting the reply of the Wage and Hour Division 's Regional Director and accusing the respondent of misrepresenting the facts to its employees when it told the Committee that it had filed an application with the War Labor Board for a wage increase. The respondent received a copy of this letter, because the Union had put the respondent on its mailing list on July 8. A day or two before, or a day or two after, the distribution of the Union's circular, the respondent distributed among its employees mimeographed copies of an undated notice from the Regional War Labor Board in Philadelphia stating that it had just received the respondent ' s application dated June 28, underneath which notice the respondent had written a message to its employees stating among other things that the local (Erie) office had passed the application on to the Pittsburgh office which received it on July 27 and which had sent it on to the Philadelphia office Clyde Seley, as hereafter set forth, claimed that this was a misrepresentation by the Union which affected his attitude on June 30. 37 Matter of Julius Kayser and Co, 29 N L R. B. 1025; Matter of J. W Greer Co, 52 N. L. R. B. 1340 338 DECISIONS OF NATIONAL LA13OR RELATIONS BOARD was left free to deal unilaterally with the employees ' "suggestions" presented through the Committee That the respondent was responsible for the origin of the Committee is obvious. It presented the plan for the Committee to the employees on company time even propos rig the number of representatives each section should have; gave the employees free time, with pay, in which tc make their nominations ; scheduled the election, prepared the ballots ; and posted the results of the election . The employees were not even given time for discussion among themselves after the suggestion was made in Clyde Seley's speech and before a hand vote was called for. Clyde Seley' s speech left little doubt that the employees were expected to act on his suggestion , and he gave further indication of that expectation when he summoned the girls from the first section to inquire why they had turned in any ballots The speech itself, carefully omitting to mention the handling of grievances or demands , may easily have deceived some of the employees as to its purpose . That its purpose was to treat with these matters, however , cannot be denied in view of the respondent's subsequent dealings with the Committee The Committee was part of the respondent 's plan to defeat "outside" organization . The undersigned finds that the Committee is a labor organi- zation within the meaning of the Act and further finds that the respondent dominated and interefered with its formation and administration. C. The refusal to bargain collectively with the Union 1 The Union's request for recognition On the morning of June 29, 1943, Johnson telephoned Clyde Seley, the respondent's president, told him that the Union represented a majority of the production employees, and asked for an early appointment. Seley invited him to come to the plant at 3 o'clock that afternoon At the appointed time Johnson went there with Harner, but Clyde Seley was not there as Instead they met Charles Seley, the treasurer, Potter, the retiring superintendent, and Don Whaley, the new superintendent Johnson stated that they had cards with them of a majority of the production employees, stated that the Union wished to establish a collective bargaining relationship with the respondent, and explained the bargaining unit it sought to represent. Charles Seley stated that he was unable to make a commitment on behalf of the respondent, that only the president could do that, and that he was meeting Johnson solely for the purpose of receiving information. He expressed the opinion that the unit should include the watchmen and clerical help, two of the classes which Johnson said the Union did not wish included." But Seley said that Johnson's request on the unit did not sound unrea- sonable. Johnson told Seley that Harper had the cards with him and that the Union would submit them to an impartial person or agency mutually agreed upon. Seley stated that the respondent would not regard the cards as proof of the Union's repre- sentation of a majority because some of the cards might have been obtained under duress and that the respondent would have to insist upon an election Seley testified that Johnson seemed not unwilling to hold an election, but that Johnson expressed the desire, before it was settled definitely, to meet with Clyde Seley Johnson testified that he told Seley the Union could not consent to an election at that time because of certain unfair labor practices on the part of the respondent, and mentioned the 38 Charles Seley explained that Clyde Seley was home ill that afternoon ae Johnson testified that by "clerical employees" Seley was referring to office employees. Seley testified that he wanted to include factory clericals, but did not contend at the hearing that office workers should be included. Johnson testified that the Union received stockroom clerks if their function was not solely clerical. As for watchmen, they would be included, according to Johnson, only if a great proportion of their work was related to the manufacturing process. THE NUBONE COMPANY, INC. 339 formation of the Committee. Seley's account of this meeting omitted refetence to this charge. Seley testified that the only reference to unfair labor practices by Johnson was at the next meeting. Seley's testimony in this respect was confirmed by Harper. It seems probable that Johnson was mistaken about the da) when he spoke about unfair labor practices. At the conclusion of the conference it was agreed that Johnson should telephone the next day to learn if a meeting could be arranged with Clyde Seley. The next day, June 30, 1943, Johnson telephoned the plant and was invited to return to meet Clyde Seley. Harney and Johnson went to the plant a little before noon and met with the two Seleys. Johnson again stated that the Union represented a majority of the production workers and offered to produce the cards, which Harper had with him, to any impartial uierson for a check of the signatures against the pay roll. Clyde Seley stated that he did not think the cards were a fair expression of the employees' wishes since some of the cards might have been procured under duress, as Johnson and Harper testified, or misrepresentation, according to Clyde Seley, and that nothing but an election would determine the wishes of the majority Johnson refused to agree to an election because of unfair labor practices Johnson testified that he repeated to Clyde Seley what he had said to Charles Seley the day before about the respondent's initiating the Committee Clyde Seley testified that Johnson did not claim the Committee was "illegal or irregular"" Charles Seley gave a different version. He testified that one of the first things that Johnson said at this conference was, "Yesterday I was ready for an election Today I am not," and that Johnson said the reason was because "You have done something," pointing at Clyde Seley, and "You have done something," pointing at Charles Seley Charles Seley then testified that Johnson told Clyde Seley that the latter had threatened to close his plant and with- draw his capital; that Clyde Seley denied this, saying he had clone just the opposite, and that what he had really done was to assure the employees that the plant would not close, that he had told them his health was such that if they could not get along in harmony, he might have to withdraw from the management of the business" It is plain that Johnson refused to consider an election because of unfair labor practices This appears from the testimony of Charles Seley as well as Johnson's. The under- signed believes that Johnson asserted to one or both of the Seleys that the respondent was responsible for the organization of the Committee and that he regarded it as an unfair labor practice. Johnson testified, and the undersigned credits his testimony, that the respondent did not offer to hold a consent election, but rather took the position that it would not recognize the Union until an election was ordered by the Board At the June 30 conference, according to Clyde Seley's testimony, the unit was not discussed. Johnson testified that he did not go into detail as to the unit at this conference but did indicate that clerical employees would be excluded and that Clyde Seley "protested, but cas- ually." The undersigned is satisfied that no serious differences as to the unit existed and that the parties would have reached an accord thereon if they could have agreed on the method of establishing a majority When asked if the Union would have been recognized if he had been satisfied that the Union had cards from a majority of the employees in the production department, Clyde Seley raised no objection to the unit but testified that he would not have recog- nized the Union, "because I would have doubted the conditions u',der which those applications were secured . . the Union had made statements in then- letters which were untrue " From the respondent's exhibits, which included a]1 of the Union's open letters and circulars of this campaign, Clyde Seley identified as the only one which lie a 40 The Seleys also testified that the only reference to the Committee was Clyde Seley', reference to it in explaining what he had told the Committee 41 He did not explain what he meant by harmony. 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a regarded as untrue the Union's circular quoting the reply of the Regional Director of the Wage and Hour Division to the Union regarding the application for wage increase. This circular has already been found to have been sent out about July 29 and could hardly have influenced Seley a month earlier When asked to explain why he was willing to recognize the Association on proof of a majority by a card check but was unwilling to do the same with the Union, Clyde Seley answered "Well, that was six or seven years ago. So I can't tell you now what my nand was then I don't think anybody could, as compared with another time. We wanted to be sure that our employees really wanted a union, because we knew-it was reasonable to expect that some of those people perhaps didn't want any union. We didn't want to be accused of selling them down the river by pushing the union in and tying them up with some monthly payment plan that they might get awfully'sick of. And they would put us on the spot."" He had not talked with any employee or member of management about the Union, barring the subject of the June 29 meeting with his brother, Charles Seley, according to his testimony; so his conclusion that there might have been employees among those that had signed authorization cards who did not want the Union was mere supposition. At the conclusion of the conference of June 30, 1943, Johnson suggested that Presi- dent Seley think the matter over and he would phone him the following day. The next day Johnson telephoned Seley from Harrisburg and asked him what his answer was, and Seley replied, "Mr Johnson, I am just as convinced today as I was yesterday that we will be accused of selling our people down the river if any of those people don't want any union, if we let the union in without a ballot vote." The Union made no further request for recognition but filed a charge on July 23, 1943, in the instant case. ' 2. The appropriate unit As indicated above, there was no complete discussion of the unit between the parties However, no serious differences existed, and it is clear that the parties would have reached an accord thereon if they could have agreed on the method of establish- ing a majority The complaint alleged that "all the production and maintenance employees at the Erie plant of the respondent, excluding foremen, supervisors, guards, watchmen, clerical employees, or any salaried employees, and any other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, constitute a unit appro- priate for the purposes of collective bargaining .." Such a unit substantially confoi ms to the one proposed by Johnson to the respondent The respondent in its answer denied the appropriateness of this unit, contending that its "watchmen, who are also engaged as maintenance workers, and the factory and stockroom clerks who work in the shop and whose duties are closely connected with production" should be included in the unit a. The watchmen and maintenance men The respondent employs one man as a night watchman who devotes most of his time to his duties as such. He comes on duty at 6 or 7 p.m. and works until some time in the morning The hours of production employees are from 8 am. to 5 15 or 5:25 p nn. Under these circumstances the night watchman would-have nothing in common with the production and nmaintenance workers and should be excluded in accordance 42 Johnson testified, that, at the June 30 conference, Clyde Seiey said a iecognition of the Union would be tantamount to selling out the Committee The undersigned believes that Johnson miscon- strued Seley's statement and believes that Seley was ieferrmg to the employees, or some of them, who had signed authoiizatiou cards for the Union for the purpose of defeating the U M. W THE NUBONE COMPANY, INC. 341 with the Union's contention Two other employees divide their time between building- maintenance work and watchman's duties One, illaitin Babo, spends about 50 percent of his time as a watchman and the other, Milford R Lemon, spends more time on maintenance work than on watchman's duties. The latter classified himself as "main- tenance department and fireman." Machine repair work is handled by another employee who is not in the so-called maintenance department John,on testified that the Union would accept part-time watchmen if a great part of their work was related to the manufacturing process. He testified that it would include "maintenance employees who keep the equipment in continuous maintenance." Johnson testified at the hearing in Harrisburg and was unable to attend the hearing in Erie He apparently (lid not know that the two men which' the respondent classified as "maintenance men" were building-maintenance rather than machinery-and-equipment-maintenance men The undersigned infers from his testimony, however, that he would exclude building- maintenance employees from the unit. The undersigned finds that the building-niainte- nance men and the watchmen, having little of mutual interest with the production workers, should be excluded from the unit. b. Janitors The respondent employs one janitress. The complaint does not propose to exclude janitors, but Johnson testified that the Union excluded them and that they wuold not be eligible for membership unless a great proportion of their work is related to the manufacturing process. While the Union offered the authorization card of the janitress, no evidence was offered to show that her work was in any part related to the manufacturing process. On the contrary it appeared that her hours of employment were quite at variance with those of the production employees, for Clyde Seley testi- fied that she starts work in the late afternon or evening and "works some at night, too." The janitress should be excluded from the unit. c. Factory Clerks In the factory, as distinguished from the office, there are some stockroom clerks, stores-department clerks and shipping clerks, a part of NNhose work is clerical While they are not engaged in manufacturing work, they do handle the finished products or the materials used in manufacturing them, and they are hourly paid employees " Johnson testified that those involved in "handling and the preparing of the fabric" and "those involved in shipping, packing" the finished garments should be included in the desired unit. The stockroom clerks, stores-department clerks, and shipping clerks should be included in the unit. d. Floor girls Johnson testified that the Union would exclude, among others, "floor ladies."" The respondent has no category called "floorladies" but employs foreladies and floor girls, sometimse called section girls. Foreladies can effectively recommend discharge of employees , floor girls can not The former are supervisory; the latter are not. The latter are engaged in work which is auxiliary to production Only the former should be excluded from the unit. The undersigned finds that a unit composed of all production and maintenance employees at the respondent's Erie plant, including stockroom clerks, stores-depart- 13 The question of manner of pay was asked only conceining the stockroom cleiks The under- signed infers that this would be applicable to all the factory clerks "From Johnson's and other testimony, the undersigned infers that Johnson intended to say foreladies. 342 DECISIONS OF NATIONAL LABOf: RELATIONS BOARD ment clerks, and shipping clerks, but excluding office workers, building maintenance employees, watchmen, janitors and janitresses, and all supervisors and supervisory employees," constitutes a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act90 3 The Union's majority status The respondent furnished a list of employees in its employ as of June 30, 1943, which contained names of 90 employees other than office workers Later the respondent offered evidence that one of the employees on this list had left the employ of the respondent on June 28. The names of two supervisors," two maintenance nien,48 one watchman," and one janitress50 would be excluded along with that of the employee who quit That leaves 83 employees who were in the appropriate unit as of June 29 and 30, 1943. In support of its claim to majority representation, the Union offered in evidence 62 signed authorization cards. Two of these cards were general A. F. of L. authoriza- Lon cards ,51 the rest were for the Union specifically. Six of the cards were undated, but testimony was given that all the undated cards were received by Harner before June 30 Of the 60 cards designating the Union specifically, six were those of persons heretofore found not to have been within the appropriate unit on June 30, 1943. The two A. F. of L. cards were among those which were signed a few clays prior to May 21, the date on which the Union became active All the other A F of L cards had been replaced by designation cards of the Union. The signers of the two A F. of L authorization cards testified. One, Rose Heuberger, had, prior to May 19, 1943, the date of her card, signed an authorization card for the U. M W. She testified that it was represented to her by Milford Lemon or Robert Babo, who solicited her signature of the A. F. of L. card, that there would be an election in which she could choose between the A. F. of L. and the U. M. W, and for that reason she thought there was "nothing wrong in signing it" ,53 that later she was given an authorization card for the Union to sign but did not sign it because she was "disgusted with the Union." - The other, Dorothy Conley, testified that Lemon solicited her signature along with -those of her sisters, Geraldine and Mildred, on May 19, 1943, on the A. F. of L. authorizations and all three signed them ; that Lemon merely said it was a good union, that she did not recall any statement's being made about an election to be held ; and that she had no -recollection of being offered an authorization card after she signed the A F. of L. card The undersigned will count both cards, despite Heuberger's testimony that she had not signed what might be regarded as a ratifying card, the Union's as distinguished from the A F. of L. card Independent of the question of the effect of Lemon's state- ment that there would be an election, which topic will be hereafter dealt with, the undersigned finds that a mere omission to sign the Union's card after having already 45This includes all employees with authoiity to hire and/or fire, promote, demote, affect the wage rate, or otherwise effect changes in the status of employees. 4e In the absence of other evidence of supervisory capacity, the undersigned sees no season for excluding salaried employees from the unit. The only one who, by the evidence, would have been excluded by limiting the unit to hourly paid employees as urged in the complaint would have been Moses Crosby, the machine repairman He should be included in the unit 47 Glen Howard and D F. Lemon 48 M. R Lemon and Martin Babo 49 Frank Farnham 60 Mrs. B Motherwell. 51 Such authorization cards are properly included N L. R B v Bradford Dyeing Ass'n, 310 U. S 318, 338-40. 52 The subject of the effect of the statement that there would be an election is dealt with hereafter THE NUBONE COMPANY, INC. 343 signed the parent organization's card, unaccompanied by any statement made to anyone at the time the Union's card was presented to her and unaccompanied by any overt act which would be evidence of her intent at that time, is not evidence of a revocation of the prior authorization. Testimony of a purely subjective state of mind is not trust- worthy evidence and cannot change the effect of overt acts. The respondent sought to establish that certain other cards were invalid because "representations" were made to certain solicited employees that an election would be held and that they would then have an opportunity to vote as they pleased. Some of respondent's witnesses, in response to a leading question by the respondent's counsel, testified that the belief that there would be an election was a "condition" under which they signed their authorization cards. Babo testified on direct examination for the respondent: Q. And did he [an A. F. of L. representative from whom Babo procured A. F. of L. authorization cards] tell you that there would be an election held at which the workers could determine what, if any, union they wished to join? .. . A. Yes, he did tell us so, because at that time we had no reason to believe that U. M. W. would withdraw. So the only conclusion that we had was that there would be an election. Q. Now did Mr. Johnson tell you that later? A. Yes, he did, at the- I don't just recall what meeting. I am under the impression that it was the first-that there would no doubt be an election, but first of all they would try the check-off [card check (1357)] system with the Company, and if the Company didn't go for that, 'there would naturally be an election to determine the outcome Q. Now, was that one of the conditions under which you signed your original application, and later signed the white card for membership in the Ladies Garment Workers' Association? A. It was. Lemon and Babo, in soliciting A. F of L. authorizations, made statements that there would be an election. Respondent in its brief to the Trial Examiner apparently took the position that the effect of such a representation voided the cards signed b) those solicited by Lemon and Babo Statements of the future probability of an election, made when such an expectation is not unreasonable, do not constitute fraudulent mis- rebresentation. Even if such expectations were "a condition" under which employees signed authorization cards, it is not disclosed by the evidence that such expectation was the controlling condition which influenced their signing and without which they would not have signed. The undersigned finds no support for the contention that any cards were procured through fraudulent misrepresentations of Johnson, Lemon, Babo or anyone else Some of the five men who originally contacted the A. F. of L indicated that at the time they signed their cards they intended to .vote for no union when it came to an election. Yet they indicated that they preferred the A. F. of L to the U. M. W and they signed specific authorizations replacing the general A F of L authorizations after the U. M. W. withdrew. Babo at least knew that the U. M W. had withdrawn before he signed the replacement card, but he testified that he was suspicious about the ss Lemon claimed to have procured 12 signer s using the same statement about election to each Babo, who took joint credit for some of the 12, claimed credit for 2 more by use of the same state ment. Of the author izations that Lemon claims thus to have solicited, 4 of the signcrs were not within the unit found to be appropriate (Mildred Conley, Farnham, D F. Lemon, and Motherwell) and no card was offered for a fifth (Lyon) One of the 2 additional ones pioeuied by Babo was likewise not in the unit (Martin Babo) 344 D1 CISIONS OF NATIONAL LABOR RELATIONS BOARD withdrawal. From all their testimony it appears that their primary intention was to use the Union to stop the U. M W and then to defeat the Union The undersigned believes that their testimony as to their intentions corroborates Klinger's testimony of the plan as related to him by Charles Seley, but that it cannot change the validity of their authorizations When asked if they had spoken to anyone about their inten- tions to vote against the Union, Weber and Rathbun testified that they told no one about it. A question is raised as to whether the cards of these five men should be counted as part of the Union's total. The undersigned believes that their testimony as to their previous subjective intention cannot be accepted to change the legal effect of their overt acts. Except for that of Milford Lemon, who has been found to be outside of the appropriate unit, their cards will, therefore, be counted. The Union accordingly is credited with 57 apparently authentic authorization cards of those in the appropriate unit as of June 30, 1943 ." Since it has been found that there were 83 employees in the appropriate unit as of that date, the Union has proved that it represented a majority of the employees in that unit. The respondent's reason for not recognizing the Union without an election was not that the Union had an insufficient number of authorizations but rather was that many of those who signed authorizations did so with no real intent that their authorizations should be what they purported to be. There would be no reasonable basis for such a belief unless the respondent knew of the plan testified to by Klinger. Neither Seley gave testimony to show knowledge of the plan. The undersigned, however, credits Klinger's testimony that Charles Seley explained the plan to him and asked him to participate. Whether this indicates that the plan was employer-instigated or whether it indicates that the respondent merely. fell in with the plan conceived by employees the result would be the same. The respondent should not be permitted to rely on its own wrongdoing as a reason for its refusal to bargain. Despite testimony of Charles Seley that he "avoided conversations of unions with all of our employees" his testimony indicated that he received without objection the information and services of Klinger until he discovered that Klinger had acted in a way to assure the Union of a majority When it appeared that the original plans for defeating organization would fail because of Klinger's dealing with the U. M. W adherents and because of their swinging en masse over to the Union, the respondent on the,very next day hastily engineered the organization of the Committee and a few days later made application for War Labor Board approval of a wage increase.' Soon after the Union's request for recognition the respondent heard the Committee's requests. The need for a means of getting recognition of their demands was appar- ently the motivation for the employees' organizing, for, as Klinger testified, the girls who had supported the U M. W agreed that if he could get their demands satisfied, they would not need a union. When Charles Seley's statements to Klinger are consid- ered together with the fact that the respondent was responsible for the existence of the Committee, a labor organization within the meaning of the Act, as heretofore found, and the fact that the respondent, at the critical time when it was reasonable to anticipate that the Union was about to demand recognition, applied to the War Labor Board for approval of a wage increase, it is obvious that the respondent's refusal to agree to a card check and its insistence on a Board-ordered election was not made 64 Of the 6 employees who have been excluded fioni the unit because of their positions, 4 had signed authorization cards for the Union (Martin Babo, D F Lemon, Milfoid Lesion, Motherwell) The card of Emma Hall is also excluded because she left respondent's employ on June 28, 1943. 66 It is true that the evidence shows that the respondent first contacted the Wage and Hour Divi- sion regaiding the wage incicase in eaily June, but the four itself was dated June 28, 3 days after organization of the Committee. THE NUBONE COMPANY, INC. 345 in good faith on justifiable grounds Early in June the respondent had been informed that the U NI W had withdrawn its petition for an election The fact that in then- conferences with Johnson the Seleys did not offer the earlier claims of the U M. W. as a ground for insisting upoio an election but rather rested mainly upon the ground that the employees misunderstood the effect of their signing the Union's authorization cards indicates that the reason for the respondent's refusal to recognize the Union was not the prospect of conflicting claims by the two organizations Upon all the evidence the undersigned finds that the respondent's refusal to recognize the Union or to allow it to prove its majority status by a card check was based on its unwilling- ness to deal with any "outside" union as the representative of its employees and on its desire to undermine the Union's standing with the employees In view of the respondent's unfair labor practices, the Union's refusal, to accede to the respondent's desire for a Board-ordered election was not unreasonable Since it has been found that the Union in fact represented a majority of the respondent's employees in an appropriate unit on June 30, 1943, the undersigned finds that on that date and thereafter the respondent refused to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit, and that the respondent has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III above, occurring in con- nection with the operations of the respondent as 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 certain unfair labor practices, the undersigned will recommend that it cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act Having found that the respondent by its various acts and conduct has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act, the undersigned will recommend that the respondent cease and desist therefrom. It has been also found that the respondent dominated and interfered with the forma- tion and administration of the Personnel Committee In order to effectuate the policies of the Act it will be recommended that the respondent withdraw all recognition from the Committee as representative of the respondent's employees for the purposes 'of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, and conditions of work and terms of employment, and to disestablish the Committee as such representative. Since it has been found that the respondent on June 30, 1943, and at all times there- after refused to bargain with the Union as the representative of its employees in an appropriate unit, it will be recommended that upon request the respondent bargain with the Union as-the exclusive representative of the employees in the unit heretofore found appropriate. Upon 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 (A. F. L.) and Personnel Com- 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD, mittee are each labor organizations within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the formation of the Personnel Committee, the respondent has engaged in unfair labor practices within the meaning of Section 8 (2) of the Act. 3 All the production and maintenance employees -of the respondent at its Erie factory, including stockroom clerks, stores-department clerks, and shipping clerks, but excluding office workers, building-maintenance employees, watchmen, janitors and janitresses, and all supervisors or supervisory employees" constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act 4. International Ladies' Garment Workers' Union (A F. L.) was, on June 29, 1943, and at all times thereafter has been, the exclusive representative of all the employees in the above-described appropriate unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 5. By refusing on June 30, 1943, and at all times thereafter to bargain collectively with International Ladies' Garment Workers' Union (A. F. L.) in the appropriate unit above described, the respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8 (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, the respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8 (1) of the Act. • 7. The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the undersigned recommends that The NuBone Company, Inc., its officers, agents, successors and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with International Ladies' Garment Workers' Union (A F. L.) as the exclusive representative of all its production and maintenance employees employed at its Erie factory, including stockroom clerks, stores-department clerks, and shipping clerks, but excluding office workers, building-maintenance em- ployees, watchmen, janitors and janitresses, and all supervisors or supervisory employees 67 (b) Dominating or interfering with the formation or administration of any labor organization or organizations of its employees. (c) Recognizing and dealing with the Personnel Committee regarding grievances, labor disputes, wages, rates of pay, hours of employment, conditions of work or terms of employment. (d) In any other manner interfering with,- restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist International Ladies' Garment Workers' Union (A. F. L.) or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the undersigned finds will effectu- ate the policies of the Act. G6 See footnote 45, supra. 67 See footnote 45, supra THE NUBONE COMPANY, INC. 347 (a) Withdraw all recognition from the Personnel Committee as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other condi- tions of work or terms of employment, and completely disestablish the Personnel Committee as such representative. (b) Upon request, bargain collectively with International Ladies' Garment Work- ers' Union (A. F. L.) as the exclusive representative of all its production and main- tenance employees at its Erie factory, including stockroom clerks, stores-department clerks, and shipping clerks, but excluding office workers, building-maintenance em- ployees, watchmen, janitors and janitresses, and all supervisors or supervisory employ- ees," in respect to rates of pay, wages, hours of employment, or other terms and conditions of employment ; (c) Post immediately in conspicuous places throughout its Eric factory, and maintain for a period of at least sixty (60) consecutive clays from the date of posting, notices to the employees stating (1) that the respondent will not engage in the conduct from which it has been recommended that it cease and desist in paragraphs 1 (a), (b), (c), and (d), of these recommendations, and (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a) and (b) of these recom- mendations ; (d) Notify the Regional Director for the Sixth Region in writing within ten (10) days from the date of receipt of this Intermediate Report what steps the respondent has taken to comply herewith ; It is further' recommended that unless on or before ten (10) days from the date of receipt of this Intermediate Report the respondent notifies said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid As provided in Section 33 of Article II of the Rules and Regulations of the National Lagor Relations Board, Series 3-effective November 26, 1943, as amended, any party or counsel for the Board may within fifteen (15) cla}s from the (late 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 xx riting 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 for the Sixth Region. 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 R. HEMINGWAY Trial Examiner Dated September 8, 1944. 58 See footnote 45, supra.