Wire Rope Corp. of America, Inc.

In the Matter of WIRE ROPE CORPORATION OF AMERICA, INC. and UNITED STEELWORKERS OF AMERICA, (C. I. 0.) In the Matter Of WIRE ROPE CORPORATION OF AMERICA and UNITED STEELWORKERS OF AMERICA , (C. I. 0.) ' Cases Nos. 1-R-1593 and 1-C-2343, respectively.-Decided June 14, 1945 DECISION AND ORDER Pursuant to a Decision and Direction of Election of the National Labor Relations Board,' herein called the Board,, an election was held on January 12, 1944, among employees of Wire Rope Corporation of America, New Haven, Connecticut, herein called the respondent, to determine whether or not they desired to be represented by United Steelworkers of America, affiliated with the Congress of Industrial Organizations, herein called the Union, for the purposes of collective bargaining. At the election, a majority of the employees voted against the Union.' On January 15, 1944, the Union filed with the Regional Director objections to conduct affecting the results of the election and requested that the election results be set aside and the election declared invalid. On February 21, 1944, the Regional Director, after an investigation, issued his Report on Objections, in which he found that they raised substantial and material issues with respect to the election, and recommended that the Board sustain the objections, set aside the results of the election conducted on January 12, 1944, and direct that a new election be conducted at such time as the Union requests it. On January 15 and February 17, 1944, the Union filed, respectively, a charge and first amended charge, alleging that the respondent had engaged in unfair labor practices. 1 53 N. L R. B 206 , decided October 28, 19.43 The Direction of Election was amended on Novem- ber 25, 1943 2 The Tally of Ballots furnished by the Regional Director to the parties indicated that there were approximately 494 eligible voters in the unit, and that, of 445 valid votes counted , 126 votes had been cast for, and 319 against , the Union. 62 N. L. R. B, No. 58. 380 WIRE ROPE CORPORATION OF AMERICA, INC. 381 On March 7, 1944, the Board issued an order consolidating the above proceedings and directing that a hearing be held on the objections to the election. Thereafter, on March 31, 1944, a complaint was issued pursuant to the afore-mentioned charges. A consolidated hearing was held before a Trial Examiner in New Haven, Connecticut, from April 13 to 21, 1944, in which the Board, the respondent, and the Union participated by their representatives. The Board has reviewed the Trial Examiner's rulings on motions and on objections to the admission of evidence, and finds that no prejudicial error was committed 3 The rulings are hereby affirmed. On September 11, 1944, the Trial Examiner issued his Intermediate Report, a copy of which is attached hereto, in which lie found that the respondent had engaged in unfair labor practices. Thereafter, the respond- ent filed exceptions to the Intermediate Report and a brief in support of its exceptions. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, con- clusions, and recommendations of the Trial Examiner, except insofar as they are inconsistent with our findings and order hereinafter set forth. 1. We agree with the Trial Examiner that by the following acts and statements, as well as by dominating and interfering with the formation and administration of the Committee and contributing support thereto, the respondent has engaged in unfair labor practices within the meaning of Section 8 (1) of the Act : Superintendent Allen's questioning of employee Matthews in Vice-President Haury's presence, in March or April 1940, regarding Matthews' union affiliation and intended vote, and urging him to postpone joining the Union; Allen's surveillance of a union meeting place on March 30, 1940; President Barclay's anti-union statements at a meeting of employees late in March 1940;' granting a wage increase to 3 During the hearing , on motion of counsel for the Boai d and over the objection of the respondent, the Trial Examiner permitted an amendment to the complaint to cover all the acts of the respondent dealing with the allegations of the complaint up to and including April 8, 1944 The respondent contends that this ruling violated proper rules of procedure to the respondent 's prejudice , depriving it of due process of law and a fair hearing we find no merit in this contention Since the matters added by the amendment were the continuation of unfair labor practices alleged in the complaint, the Board had authority to deal with them (National Licorice Co v N L R B , 309 U S 360) ; and the amendment of the complaint during the course of the hearing was within the discretion of the Trial Examiner (Consolidated Edison Company of New York v N L R B , 305 U S. 197) The record shows that the Trial Examiner offered the respondent time to meet the new matters if sur- prised thereby , and that the offer was declined Under the circumstances , we are of the opinion, and we find, that the respondent was in no way prejudiced by the Trial Examiner's udnig. 4 Although the Intermediate Report states that Bredenberg ' s testimony regarding this meeting was uncontradicted , the record shows that Barclay, in his testinion) , stated that he did not recall a meeting of the employees in the latter part of March 1940 and denied having at any time made the statements attributed to him by Bredenherg However , we note that in other connections the Trial Examiner has not credited Barclay's testimony , which was in many respects contradictory, while Bredenherg , on the record as a whole, appears to have been a trustworthy witness we there- fore credit Bredenberg's testimony regarding the March meeting, and find, as did the Trial Examiner, that at the meeting Barclay told the employees that he would not permit union inter- ference with his business , that he was sufficiently well-to-do to permit his retnenient from business, and that the Union could procure no more for the employees than he could himself give them 382 DECISIONS ON NATIONAL LABOR RELATIONS BOARD the employees in April 1940, at a time when the Union was seeking to bar- gain collectively with the respondent ; conducting a vote of the employees in April 1940, resulting in their repudiation of the Union;' issuing a series of anti-union. leaflets and posters during the period between October 13, 1943, the date of the Board hearing on the Union's petition for investiga- tion and certification of representatives, and January 12, 1944, the date of the Board election," Vice-President Haury's statement to employee Wolfe, in November 1943, that Wolfe would be discharged if investigation showed that he was a paid organizer or if he were found soliciting for the Union, and.President Barclay's subsequent inquiry of Wolfe as to whether he was a paid organizer; Foreman Valenti's statements to Wolfe, on numerous occasions in 1943, that the Union could not win in the plant ; Vice-Presi- dent Haury's anti-union statements at meetings of female employees in his office in or about November 1943 ; Forelady Ives' statements in the hearing of employee McGuire, during the election campaign in 1943, that if the Union organized the plant the employees' privileges would be taken away, that Negroes would be hired to work with them, and that she (Ives) did not like the group in the Union ; Vice-President Haury's threat to employee Matthews, at the respondent's Christmas party in 1943, that after the elec- tion was over, Matthews and five other employees would be discharged; permitting employees to carry on anti-union activities during the preelec- tion campaign in 1943; and permitting a committee headed by active anti- union employees to decide, in January 1944, whether employee Paulson, a union member, should be permitted to withdraw his resignation from the respondent's employ' 5 The respondent, in its brief, admits that at the meeting in April 1940, at which the vote of confidence was taken, Barclay stated the respondent's belief that an outside bargaining agency was unnecessary. It contends, however that this conduct was not coercive, and was therefore privileged since the record shows that Baiclay also told the employees that if they believed in a union they should stick to it and pay their dues in finding that the respondent violated Section 8 (1) of the Act, we do not rely, nor did the Trial Examiner, on Barclay's above-mentioned statements at the meeting, but we are of the opinion , and we find , that his request for a vote of confidence , particu larly when considered in the light of the respondent's prior unfair labor practices, was clearly coercive 6 The respondent, in its brief , contends that the posters were "fair presentations of the Company's position " and were free of coercion , and that they were therefore privileged We do not agree Even aside fiom the fact that the effect of the posters must be judged in the light of the other anti-union conduct on the part of the respondent, found herein, we note, that the posters in them- selves contained misstatements of fact reflecting on the Union and clear intimations that if the Union won the election the employees would lose benefits which the respondent had accorded of promised them 7 The Trial Examiner has found that the respondent 's discharge of seven employees in March and April 1940, also constituted a violation of Section 8 (1) of the Act However, the complaint did not specifically allege these discharges as an unfair labor practice, and the record shows that within a few days after they took place, all, seven employees were reinstated without loss of pay and that the Union thereupon withdrew, without prejudice, the charges it had filed in their behalf. Under these circumstances , and since the respondent has engaged in other activities which were clearly violative of Section 8 (1), it is unnecessary for us to make any finding with respect to the dis- charges in question, and we shall not do so We ncveitheless rely upon the circumstances attending the discharges as indicative of the respondent's attitude toward the Union and therefore relevant in evaluating the respondent's othei conduct WIRE ROPE CORPORATION OF AMERICA, INC. 383 In addition, as set forth in the Intermediate Report, the respondent, (luring 1943, engaged in the following activities : Foreman Ruggiero, in June, advised employee De Maio, an active union member, to "let [the Union] go"; Night Superintendent Mazzacane, during July, asked De Maio whether he was not "sticking [his] neck out for trouble," indicated that he knew De Maio was working for the Union, and advised him to keep his nose clean ; Foreman Valenti, during the spring, told employee Livieri that he understod Livieri was a union organizer, and advised Livieri, when the latter said he was not an organizer, to so inform the management, be- cause they believed that he was "one of the leaders" ; General Superin- tendent Davis, during April or May, asked Night Superintendent Leroy Bredenberg to make written reports to him of union activity among the employees,' and suggested that Bredenberg could obtain the information from his friends in the plant ; and Superintendent Davis, late in June, warned employee Annatone not to talk about the Union in the plant, stat- ing that he might he discharged for doing so, and when Annatone said "You can't get fired for talking about trying to organize," told him that there were "other ways." We are of the opinion, and we find, that by these activities, and also by discriminating against Michael Annatone and Einar Bredenberg, as found below, the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Sec- tion 7 of the Act We further find that all the acts and statements outlined above consti- tuted integral parts of a course of conduct engaged in by the respondent for the purpose pf defeating its employees' attempts at self-organization, and that such conduct, which included threats of, as well as actual, reprisals for union activities, way clearly coercive and therefore violative of Section 8 (1) of the Act 2. We find, as did the Trial Exanuner, that the respondent discharged Michael Annatone because of his union membership and activities, thereby discriminating in regard to his hire and tenure of employment and discour- aging membership in the Union. In so finding, we rely upon all the cir- cumstances revealed in the record, including, in particular : (1) the respondent's hostility to the Union, as shown by its other unfair labor practices, both before and after Annatone's discharge, (2) the respondent's knowledge of andeopposition to Annatone's union membership and activity, as shown by Superintendent Davis' warning to him, approximately a month before the discharge, that he should not talk about the Union in the plant and that he might be discharged for doing so;' (3) Davis' statement to Annatone, when the latter said, "You can't get fired for talking about 8 Matter of Okey Hosiery Company, 22 N L R B 792 6 According to Annatone' s uncontradicted testinion, which we credit, he had talked to sonic of his fellow employees about the Union, but had not done so daring working time 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD trying to organize," that there were "other ways"; (4) the respondent's failure to show Annatone the defective work which was assigned as the reason for his discharge, and the fact that the record fails to show that any investigation wasomade to establish his responsibility therefor;" (5) the fact that, although the respondent claims that Annatone's sleeping at work was one of the reasons for his discharge," other employees who fell asleep at work, as well as those who were derelict in other ways, were not dis- charged on that account ; (6) the fact that the respondent was, at all times, desperately in need of operators; and (7) the fact that employee Einar Bredenberg's reinstatement was later conditioned upon his son Leroy's certifying to the respondent that he had not given an affidavit to the Board with respect to the Annatone case. Having found that the real reason for Annatone's discharge was his union membership and activity, we shall order his reinstatement, as recom- mended by the Trial Examiner. However, the record shows, as stated above, that on two successive nights Annatone was found sleeping on the job. We do not, by our decision, condone his conduct in this respect. Work- ing time is for work, and an employer has a right to discipline his employees for improper conduct during working hours. Accordingly, nothing in our order shall be construed to preclude the respondent, after it has reinstated Annatone, from discharging or otherwise disciplining him, in the event of any future misconduct on his part, provided its reason for doing so is not discriminatory. 3. We do not agree with the Trial Examiner's finding that the respondent knowingly assigned Einar Bredenberg, on July 26, 1943, to a task which he was physicaly incapable of performing; thereby causing him to leave the plant, because of his union membership, and activity. We do agree, however, with the Trial Examiner's finding that the respond- ent, by thereafter refusing to reemploy Bredenberg, discriminated in regard to his hire and tenure of employment, thereby discouraging mem- bership in the Union. 10 The Trial Examiner has found that unless an employee is detected while actually causing a defect, tracing the responsi bility for defective wire is impossible However , the record shows that each reel of wire, when taken from a machine , is tagged with the operator ' s name It is therefore clear that unless the tag becomes detached , the operator from whose machine a defective wire has come can be identified , although in sonic cases , as when a defect has gone through one machine while the operator was busy on another, the defect may not be the operator's fault According to Davis' testimony , on July 9, and again on July 17 , he found on his desk short lengths of defective' wire, together with tags bearing Annatone's name. It does not appear th.k -lie made any attempt to discover by whom they had been put on the desk , or that he spoke to Annatoue about the matter at the time Furthermore , although he mentioned the defective wire found on July 9 in his report to Haury on that date , he did notsspecifically attribute the defective work to Annatone 11 The record shows, as the Trial Examiner has found, that Davis found Amsatone asleep on both July 16 and 17 Davis testified that he had also received from Night Superintendent Leiov Bredenberg , on July 9, a report that Annatone had been "sleeping on the job " We find, as did the Trial Examiner, that Bredenberg had made no such report In so finding. howevci, we rely solely on Bredenberg's testimony, which we credit , that he had not done so , since it is not entuely clear whether Davis' statement, on cross-examination, that lie did not believe l redenbeig had filed any reports with him, had icfcrence to reports of this chaiactei m to othct reports that lie had requested. WIRE ROPE CORPORATION OF AMERICA, INC. 385 Bredenberg, one of the respondent's oldest employees and an exception- ally skilled worker, entered the respondent's employ in 1931. He joined the Union in 1940, and in April of that year was one of the three or four employees who opposed giving the respondent a vote of confidence. There- after, although the Union became inactive, he remained a member, and in 1943, when it resumed its activities, he talked to various employees in the plant about the advantages of a union. In July 1943, Bredenberg was acting as relief man in the closing depart- ment. In this position he worked on "seven wire" machines, which were the lightest machines in the plant. On July 26, Superintendent Sundberg told him that he was to be given the job of running a new machine which was to be installed within a short time, and that in the meantime he was to help on the "number six" machine. Bredenberg, who had trouble with his back as the result of a childhood injury and a subsequent accident, pro- tested that the work on this machine was too heavy for him,' and after asking Sundberg, "Is that all you got?", to which he received no reply, he left the plant " On the following day, Bredenberg went to see Vice-President Haury, who asked him why he had "walked out." Bredenberg explained that it was-because he could not handle the "number six" machine. Haury then asked why he had not stated his reason. When Bredenberg replied that he had clone so, Haury showed him the report he had received from Sundberg, which merely stated that Bredenberg had walked out when told_ to go on "Number Six." In reply to Haury's inquiry as to what he was planning to do, Bredenberg said that he was going to visit his brother in Cleveland. Haury, after telling him that he would speak to President Barclay about him, said, "When you come back from Cleveland, come to see me and everything will be straightened out." However, when Bredenberg later returned, as instructed, he was discriminatorily refused reinstatement as hereinafter found. The Trial Examiner, in finding that the respondent's conduct in assign- ing Bredenberg to the "number six" machine constituted a constructive dis- charge and was discriminatorily motivated, has relied principally upon the circumstances surrounding the respondent's subsequent refusel to reemploy him. But while these circumstances raise some doubt as to the respondent's motive in making the assignment which resulted in Bredenberg' s leaving -the plant, on the record as a whole we are not convinced that the respondent acted for other than legitimate reasons. Thus, the record indicates that men .were frequently transferred from one machine to another and that Breden- 12 The operation of the "number six" machine involved handling spools of wire weighing approxi- mately 250 pounds , while the spools on the " seven wire " machines weighed only 105 to 108 pounds 11 Although Sundberg admitted that at this time there was still work for Bredenbeig on the "seven wire" machines , he explained his failure `to put him hack on them by saying , "He didn't wait, but he just walked out" 386 DhCISIONTS OF NATIONAL LABOR RELATIONS BOARD berg himself had worked on various machines at different times ; that an experienced man was needed on the new machine that was to be installed, and that experience on the "number six" machine would be valuable in learning to operate it; and that, although the spools on this "number six" machine were considerably heavier than those on the "seven wire" ma- chines which Bredenberg had been operating, this disadvantage was offset to some extent by the fact that two men were assigned to its operation and. that an electric hoist was used to lift the spools into position. Furthermore. although we are satisfied that Bredenberg's union membership was known to the respondent,"' it appears that the transfer was suggested by Sundberg, who is not shown to have had any anti-union bias ; and although Haury later unlawfully conditioned Bredenberg's reemployment on his procuring from his son, Leroy, a statement that Leroy had not filed an affidavit in the Annatone case and had "never said anything against the company," as discussed below, it does not appear that the respondent, on July 26, knew that a charge had been, or was to be, filed in the Annatone case, or that it had any reason to be concerned over statements made by Leroy Breden- berg.' Under all the circumstances, we are of the opinion, and we find, that the respondent did not, on July 26, discriminate in regard to Bredenberg's hire and tenure of employment, in violation of Section 8 (3) of the Act."e Approximately 2 weeks after Bredenberg left the plant under the cir- cumstances set forth above, he went back to see Haury in accordance with the latter's instructions. Haury told him that he had not yet seen Barclay, and asked him to return the following week. When Bredenberg'did so, Haury said, "You know Barclay. He don't hire anybody." Later, on or about September 1,17 Bredenberg went back for the third time. At this time, the discharge of Michael Annatone was being investigated by the Board, and Haury told Bredenberg that a representative of the Board had in- formed Haury and Barclay that Bredenberg's son Leroy, who had been Annatone's foreman, had given the Board statements in connection with the case 18 Bredenberg denied that Leroy had done so, and said that lie could prove it by asking Leroy. Haury, thereupon, asked Bredenberg to procure from Leroy, who was no longer in the respondent's employ, a 14 Barclay, Haury, and Sundberg all denied knowledge of Bredenberg ' s union membership Barclay admitted, however, that he thought all the men who left the meeting in April 1940 to discuss his request for a vote of confidence were union members, and that Bredenberg was among those who did so. 15 The first charge alleging that Annatone had been discharged in violation of Section 8 (1) and (3) of the Act was filed by the Union in Case No . 1-C-2274 on August 12, 1943 10 In view of this finding, Bredenberg is not entitled to reimbursement for loss of pay during the period from July 26, 1943, the date on which he left the plant, to September 1, 1943, the approximate. date of the respondent's discrimination against him , found below 17 The exact time of this visit does not appear, but according to Bredenberg's testimony, which we credit, it took place about a month after he left the plant we accordingly find that it took place on or about September 1, 1943. Is As set fofth below , Haury later told Bredenberg that on this occasion , after the representative of the Board had left, Barclay said to Haury, "I told you the Bredenbergs were in back of it " WIRE ROPE_-CORPOI:ATLON OF AMERICA, INC 387 statement that he had not signed an affidavit in the Annatone case, and also told Bredenberg that when the statement was received he (Haury) would "get things rolling."" Bredenberg, accordingly, asked Leroy to send such a statement to the respondent, and Leroy did so. Thereafter, however, Haury told Bredenberg that this statement did not mean anything, and that "Barclay wanted a statement that Leroy never said anything against the company." Leroy did not furnish any further statement "° Sometime thereafter, during October, Bredenberg again saw Haury, who showed him the schedule of rates for the different machines, told him that the respondent could pay only 90 cents an hour for work on the machines Bredenberg had been operating before he left the plant, and sug- gested that he run a "25 wire 12/" machine at his former rate of $1.10 an hour. Bredenberg said that this machine was too heavy and "would be almost as bad as Number Six."" Haury said that if Bredenberg returned at that time the Union would claim that it had been responsible for getting him back, that the plant did not need a union, and that if the Union came in, the employees would have to fight for certain privileges they then enjoyed. He suggested that if Bredenberg would stay at home until the election were over, he (Haury) would give him a job and the respondent would "take care of" him. During the conversation, Haury also told Bred- enberg that a few weeks earlier one of the Board's Field Examiners had interviewed Barclay and himself in regard to the Annatone case and had informed them that Leroy Bredenberg had filed an affidavit concerning it, and that when the examiner left, Barclay had said "I told you the Breden- bergs were in back of it." Bredenberg left the plant with the understanding that Haury would get in touch with him later, but Haury did not do so, and on two subsequent occasions when Bredenberg tried to see Haury, he was told that the latter was "in conference." Upon the foregoing and the entire record, we are convinced that the respondent has illegally refused to reemploy Bredenberg. Haury's request that Bredenberg procure from Leroy a statement that he had not filed an 19 Haury testified, with respect to this conversation , that he told Bredenberg that "at a hearing held in our office the week before , conducted by Mr. Merritt [Merrick] of the National Labor Relations Board," he had heard that Leroy had signed an affidavit in regard to the Annatone case. and that he asked Bredenberg to tell Leroy that he was interested in hearing about it, but denied that this request had any connection with Bredenberg himself. 20 Bredenberg testified that when he spoke to Leroy about the second request, Leroy said . "Well, dad, that is a'pretty broad statement . You know I got out of here and you got out I don't think I can write a statement like that because there must have been something to the two of us getting out, but if he means I never said anything to the union about it or to the fellows in the shop about it, I will I'll go down to the office and find out if I did give any statements down to the office, and if I said anything and the boys used it in the union activity, I can't take it back, but I will find out." 21 The record shows that the spools on the "25 wire " machine are of approximately the sane weight as those on the "7 wire" machines which Bredenberg had been operating, and are consider- ably lighter than those on the "number six" machine However, more spools are used on the "25 wire" machine than on the " 7 wire" machines , and its operation therefore involves more lifting 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD affidavit in regard to the Annatone case, his promise to "get things rolling" upon receipt of this statement, and his demand, when this statement was received, for a further statement that Leroy had never said anything against the respondent, make plain that the respondent intended the pro- curing of such statements as a condition precedent to granting Breden- berg's continued requests for reemployment. We are also satisfied that, in imposing this condition, the respondent was motivated by an anti-union animus and a desire to discourage the giving of information in connection with the proceedings instituted with the Board by the Union in the Anna- tone case, rather than by any legitimate desire to procure information which would be of assistance to it in preparing its defense. This is shown by the nature of the respondent's requests of Bredenberg, by Haury's subsequent statement that Barclay had remarked that the "Bredenbergs were in back of" the Annatone case, and by the fact that the respondent was in need at this and all other times of employees to perform Brecj,enberg's former tasks, as well as by the respondent's other unfair labor practices found herein. Plainly, the condition was one which was violative of the Act. The institu- tion by the Union of proceedings before the Board in regard to Annatone's discharge was a matter of vital interest not only to Annatone but to all members of the Union and constituted concerted activities , engaged in through the agency of the Union, for their mutual aid or protection 22 And it is equally clear that the giving of information to agents of the Board in connection with the investigation of such proceedings constitutes assist- ance to the Union in its endeavor to protect the employees in the exercise of their legal rights. To condition employment upon the procuring of state- ments that no such information had been given plainly constituted inter- ference with, restraint, and coercion of employees in the exercise of their rights guaranteed in Section 7 of the Act and discouraged membership in the Union.23 Since the condition was one which the respondent could not lawfully impose, the conditioning of reemployment thereon constituted a violation of Section 8 (1) and (3) of the Act 2' Itt October the respondent again revealed that its refusal to reemploy Bredenberg was dictated by anti-union considerations. Although it then offered Bredenberg a position at more difficult work, it did not then or thereafter offer him reinstatement to the position he had previously held. 22 See N. L. R. B. v. Peter Cailler Kohler Swiss Chocolates Co., Inc., 130 F. (2d) 503 (C. C. A. 2), enf'g Matter of Peter Cailler Kohler Swiss Chocolates Company, Inc., 23 N. L. R. B. 1170. 23 See Matter of Reliance Manufacturing Company, 60 N. L. R. B, 946; N. L. R. B. v. Duncan Foundry & Machine Works, Inc., 142 F. (2d) 594, 599 (C. C. A. 7). It is immaterial that the condi- tioning of Bredenberg's employment contemplated his son , Leroy' %, as well , as his own, compliance with the illegal condition . N. L. R. B. v. Link -Belt Co., 311 U. S. 594; Memphis Furniture Manufac- turing Co. v. N. L. R. B., 96 F. (2d) 1018 (C. C. A. 6). 24 Although we regard the respondent 's conduct as violative of both Section 8 (1) and Section 8 (3), even if it were to be regarded solely as a violation of either subsection , we should find it necessary, in order to effectuate the policies of the Act, to order the respondent to reinstate Breden- berg with back pay in the manner set forth in our Order herein. WIRE ROPE CORPORATION OF AMERICA, INC. . 389 That its reason for not doing so was discriminatory is clearly indicated by all the surrounding circumstances, including : (1) the fact that the dis- parity between the rate of pay Bredenberg had been receiving and the scheduled rate on the "7 wire" machines, the only reason advanced by the respondent for not offering him his former position, had existed prior to July 26, but was not offered as a reason for changing his assign- ment at that time; (2) the fact, stated above, that the respondent, at all times material herein, was in need of employees to perform Bredenberg's former tasks; (3) Haury's anti-union statements at the time of offering him the position on thtr "25 wire" machine and his suggestion that Breden- berg stay away from the plant until the Board election was over; (4) Haury'.s statement to Bredenberg that Barclay, after hearing that Leroy Bredenberg had filed an affidavit in the Annatone case, said "I told you that the Bredenbergs were in back of it"; and (5) the respondent's other unfair labor practices, found herein. We accordingly find that the respondent, by refusing, on or about Sep- tember 1, 1943, and as all times thereafter, including October 1943, to reemploy Einer Bredenberg, has discriminated in regard to his hire and tenure of employment, thereby discouraging membership in a labor organi- zation and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 4. We agree with the Trial Examiner's findings that the Committee is a labor organization, within the meaning of Section 2 (5) of the Act, and that the respondent has dominated and interfered with its formation and administration, and contributed support to it, and has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The respondent excepts to these findings, on the ground that the Com- mittee is merely "an embryonic organization [which] has not any real status whatever," and that "its so-called temporary constitution is nothing more than a grant of legislative power to all the employees to make certain determinations for themselves." We find no merit in this contention. The proposed bylaws of the Committee, under which it was functioning at the time of the hearing, provided that "the purpose of the Employees Depart- mental Council [the representatives of the various departments]' shall be to meet with management as an individual committee, to solve problems in that particular department," and that "the purpose of the executive board of the Employees Departmental Council [the over-all committee] shall be to meet with the management to solve problems concerning over-all shop matters, and to treat on matters of the departments not satisfactorily 25 It Is clear, and we find , that Employees Departmental Council is the same organization vari- ously referred to as the Shop Committee , the Over -All Committee, the Departmental Committee, and the Departments of the Factory of the Wire Rope Corporation of America, Inc , and herein called the Committee. 390 ' DECISION'S OF NATIONAL LABOR RELATIONS BOARD adjusted." Moreover, Barclay admitted, at the hearing, that the respondent not only would treat with the employees on the Committee as the repre- sentatives of its employees on matters pertaining to wages, hours, and conditions of employment, but that it had clone so, and the record shows that at one meeting of the Committee, attended by representatives of the respondent, a grievance concerning ventilation was presented, and that the respondent subsequently took action on it On the record as a whole, it is therefore clear that the Committee is an organization in which employ- ees participate and which exists for the purpose of dealing with the respondent concerning grievances and other employment problems, thus falling within the statutory definition of a labor organization." Moreover, in finding that the respondent has dominated and interfered with the formation and administration of the Committee, and has contributed sup- port to it, we rely not only on the provisions of the proposed constitution, but on,all the other circumstances shown by the record and discussed in the Intermediate Report, including (1) the fact that the respondent sug- gested the formation of the Committee, the manner in which departmental representatives should he elected, the selection and functions of the over- all committee, and the duties and meeting times of the departmental com- mittees, and furnished a list by departments of the employees eligible to vote; (2) the fact that the elections were held in the plant during work- ing hours and were announced by the respondent by notices posted in the plant, and that ballot boxes were furnished by the respondent, (3) the fact that meetings of the Committee were held in the plant during working hours and that the employees who attended were paid by the respondent for time lost from work; and (4) the fact that questions of procedure and jurisdic- tion were referred to the respondent for interpretation and that the pro- posed bylaws were revised and amended at the suggestion of management. 5 Since the record establishes that the respondent engaged in unfair labor practices prior to the election, we find that the election was not an expression of the free will of an uncoerced majority and therefore should be set aside. We shall so order. However, in view of the length of time which has elapsed since the election, we shall dismiss the petition for an investigation and certification of representatives, without prejudice to the right of the Union to file a new petition if it so desires. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Wire Rope Corporation of America, "0 Matter of C Nelson Manufacturing Company, IS N L R B 1051, enf 'd 120 F (2d) 444 (C C A 8); Mattem of P,acisaon Casting Company, tic , 30 N d. R R 212, enf'd 130 F i2(l) 639 (C C A 6) WIRE ROPE CORPORATION OF AMERICA, INC. 391 New Haven, Connecticut, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Dominating or interfering with the administration of the Commit- tee, by whatever name known, or with the formation or administration of any other labor organization of its employees, and from contributing sup- port to the Committee or to any-other labor organization of its employees ; (b) Recognizing the Committee, by whatever name known, as the repre- sentative 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 ; (c) Performing or giving effect to any contract it may have entered into with the Committee, by whatever name known, or any extension, renewal, modification, or supplement thereto, relating to grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment ; (d) Discouraging membership in United Steelworkers of America, affiliated with the Congress of Industrial Organizations, or in any other labor organization, by discharging or refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire or tenure of employment, or any term or condition of their employment ; (e) 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 United Steelworkers of America, affiliated with the Congress of Industrial Organizations, or any other labor organi- zation, to bargain collectively through representatives of their own chos- ing, 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) Withdraw and withhold all recognition from the Committee, by whatever name known, 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, and completely disestablish the Committee as such repre- sentative ; (b) Offer to Einar Bredenberg immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of pay he has suffered by reason of the respondent's-discrimination against him, by payment to him of a suns of money equal to the amount which lie normally would have earned as wages from September 1, 1943, the date 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cif the respondent's discrimination against him, to the date of the respond- ent's offer of reinstatement, less his net earnings during said period ; (c) Make whole Michael Annatone for any loss of pay he has suffered by reason of the respondent's discrimination against him, by payment to him of a sum of money equal to the amount he normally would have earned as wages from July 20, 1943, the date of the respondent's discrimination against him, to August 12, 1943, the date.on which he obtained permanent employment elsewhere, less his net earnings during said period; (d) Post at its plant at New Haven, Connecticut,. copies of the notice attached hereto, marked "Appendix A." Copies of said notice, to be fur- nished by the Regional Director for the First Region, shall, after being duly signed by the respondent's representative, be posted by the respondent immediately upon receipt thereof, and maintained by it for sixty (60) con- secutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material ; ' (e) Notify the Regional Director for the First Region in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the election held on January 12, 1944, among employees of Wire Rope Corporation of America at its plant at New Haven, Connecticut, be, and it hereby is, set aside, and that the petition for an investigation and certification of representatives be, and it hereby is, dismissed, without prejudice. MR. JOHN M. HOUSTON took no part in the consideration of the above Decision and Order. 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 Committee variously known as the Shop Committee, the Over-All Committee, the Departmental Committee, the Departments of the Factory of the Wire Rope Corporation of America, Inc., and the Employees Departmental Council as the repre- sentative of any'of our employees for the purpose of dealing with-us concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and we will not recognize it or any successor thereto for any of the above purposes. We will not dominate or interfere with the formation or adminis- WIRE ROPE CORPORATION OF AMERICA, INC. 393 tration of any labor organization or contribute financial or other sup- port to it. We will offer to Einar Bredenberg immediate and full reinstate- ment to his former or a substantially equivalent position without prejudice to any seniority or other rights or privileges previously enjoyed by him, and make him whole for any loss of pay suffered as a result of the discrimination against him. We will make Michael Annatone whole for any loss of pay suffered as a result of the discrimination against him. We will not in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist United Steelworkers of America, affiliated with the Congress of Industrial Organizations, or any other labor organi- zation, to bargain collectively through representatives of their own choos- ing, and to engage in concerted activities for the purpose of collective 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. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of mem- bership in or activity on behalf of any such labor organization. WIRE ROPE CORPORATION OF AMERICA (Employer) By (Representative ) (Title) Dated NOTE: Any of the above-named employees who are to be reinstated, who arc presently serving in the armed forces of the United States will be offered full rein- statement upon application in accordance with the Selective Service Act after dis- charge from the armed forces. This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT Mr. Samuel G. Zack and Mr. John W. Coddaire, Jr, for the Board. Mr. Arthur L. Corbin, Jr, of New Haven, Conn., for the respondent Mr. Harold B. Roitniau, of Boston, Mass, for the Union STATEMENT OF THE CASE Upon a first amended charge duly filed on February 17, 1944, by United Steelwork- ers of America (C. I 0 ), herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the First Region (Boston, Massachusetts), issued its complaint dated March 31, 1944, against Wire Rope Cor- poration of America, herein called the respondent, alleg ng that the respondent had engaged in and was engaging in unfair labor practices, within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accompanied by notice 394 DECISTON\NS OF NATIONAL LABOR RELATIONS BOARD of consolidated hearing thereon and on objections to election in Case No 1-R-1593; n ere duly served upon the respondent, the Union, and Congress of Workers of Wire Rope Corporation of America, herein called the Committee, and alleged by the com- plaint to be dominated by the respondent. With respect to the unfair labor practices, the complaint alleged in substance that the respondent: (1) in about April 1940, when the Unionz requested recognition as sole representative of the respondent's employees, urged its employees to renounce their affiliation with the Union, promised them improved wages and working conch- tions if they did so and greater benefits than they could achieve through the Union, and conducted a vote of its employees on its time and property to determine whether they would renounce and refrain from joining the Union; (2) on or about July 20 and 26, 1943, respectively discharged and thereafter refused to reinstate Michael Annatone and Einar Bredenberg because of their union membership and activities, (3) beginning in June 1943, informed its employees that it did not desire the Union in its plant, interrogated certain of them respecting their union membership and threat- ened to discharge them if it ascertained that they were paid organizers of the Union, permitted certain employees to disparage the Union in its plant, held meeting of em- ployees to discourage their voting for the Union at the election of January 12, 1944, permitted surveillance of a union meeting, stated to an employee that he and several others would be discharged after the election, delegated to an employee committee the decision as to acceptance of the retraction of his resignation by an employee who was an active union member, told certain employees that if the Union prevailed certain privileges would be lost to the employees, that grievances would be allowed to accumulate. and that it did not care if military authorities took charge of the plant, told certain employees that there was no need for a union in the plant and that it had in mind certain advantages for them, requested one of its supervisors to make note of any employee who joined or talked of the Union, between October 30, 1943, and January 15, 1944, posted and distributed in its plant a booklet and various posters and messages prejudicial to the Union, thereby advised its employees during said period that a vote against the Union would be considered a vote of confidence in the respondent, and allowed certain employees to devote their time to affairs of the Committee while requiring union members to remain at their machines; (4) begin- ning on or about January 10, 1944, dominated and interfered with the formation of the Committee and contributed support to it by : recommending to its employees that it be formed, suggesting and outlining the method of doing so and the duties and functions of its representatives, delineating departments from which representatives were to be chosen, designating the number of representatives to be chosen from each, designating the employees eligible to participate in their selection, advising the employees to establish the Committee and thereby give the respondent a vote of confidence, assisting in the conduct of the election of representatives, permitting it to take place on its time and property, furnishing the materials necessary therefor, and permitting such representatives to meet on its time and property; and (5) by such acts and statements interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 1 On October 28, 1943, the Board issued its Decision and Direction of Election in Matter of i4'ire Rope Corporation of America, Inc, and United Steelworkers of America (C 1 0.), 53 N L. R. B. 206 Puisuant thereto, an election was conducted by the Regional Director on January 12, 1944, the Union thereafter filed objections to the election report and on March 7, 1944, the Board issued its order that a hearing be held on said objections and consolidating the case with the instant complaint case. 2 It was then known as Steelworkers Oiganizing Committee On 3\1ay 12 1942. a became Unite' Steelworkers of America WIRE ROPE CORPORATION 0! AM ERICA, INC. 395 Thereafter, on April 10, 1944, the respondent filed its answer denying the commis- sion of any unfair labor practices and admitting the allegations of the complaint with respect to the nature of its business. Pursuant to notice, a hearing was held at New Haven, Connecticut; on April 13,3 and from April 14 through 21, 1944, before the undersigned, Josef L Hektoen, the Trial Examiner duly designated by the Chief Trial Examiner The Board, the respondent, and the Union were reps esented bN counsel and partic pated in the hearing ' Full opportunity to examine and cross-examine witnesses and to introduce evidence bearing on the issues was afforded all parties During the hearing the motions of counsel for the Board to amend the complaint by adding certain designations by which the Committee was variously alleged to be known and by extending the period covered by the complaint to April 8, 1944, were allowed by the undersigned. At the close of the hearing, counsel for the respondent and the Union argued orally before the undersigned; the former thereafter filed a brief with him. After the close of the hearing, counsel for the Board filed a written motion to conform the complaint to the proof adduced at the hearing; it was assented to by counsel for the respondent and the Union and is hereby allowed. Upon the entire record in the case and from his observation of the o itnesses, the undersigned makes the following : FTNnTNes fie FArT 1. THE BUSINESS OF THE RESPONDENT The respondent, Wire Rope Corporation of America, is a Connecticut corporation having its principal place of business at New Haven, Connecticut, where it is engaged in the manufacture of wire rope. The principal raw materials used by it are steel, hemp core, and lubricants. During 1943, the approximate value of such materials pur- chased by it was $5,000,000, of which about 95 percent originated outside the State of Connecticut. During the same period, the respondent's sales of finished products had a value of more than $10,000,000, of which about 95 percent was transported outside the State of Connecticut. The respondent admits that its operations affect commerce, within the meaning of the Act. II. THE ORGANIZATIONS INVOLVED United Steelworkers of America is a labor organization affiliated with the Congress of Industrial Organizations It admits to membership employees of the respondent Congress of Workers of Wire Rope Corporation of America, also sometimes known as the Shop Committee, the Over-All Committee, the Departmental Committee, and the Departments of the Factory of the Wire Rope Corporation of America, Incor- porated, is an unaffiliated labor organization, membership in which is restricted to employees of the respondent, III THE UNFAIR LABOR PRACTICES A. The respondent frustrates the Union' s organizational efforts in 1940 1 Chronology-of Events About January 1, 1940, employees of the respondent approached Frank L. Trainor, union representative , regarding organization of the plant He thereafter met with 3 The hearing opened before another Trial Examiner, he took no testimony and merely received the formal papers into the record G The Committee did not appear at the hearing. 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD them from time to time and also had occasion to speak to J. P Barclay, president of the respondent, respecting the Union and its efforts among the employees The respondent's board of directors at its regular February meeting, or at a special meeting called for the purpose, thereafter authorized, but did not put into effect, an increase in the plant's minimum wage from 40 to 64 cents per hour, a horizontal increase of 10 cents per hour, and an apprentice rate of 40 cents increasing to 64 cents per hour at the end of one year. - On March 23, Trainor conducted a meeting of the respondent's employees at a New Haven hall. Plans for a concerted organizational drive were laid and during the following week Trainor spoke to Barclay of reports reaching him from employees of the commission of unfair labor practices by the respondent. Barclay told Trainor that the respondent was about to embark on an aggressive campaign to keel) the Union out of the plant.' , During March or April, according to the uncontradicted testimony of employee Frank Mathews, which the undersigned accepts, Superintendent Allen" asked him in the presence of Arthur F. Haury, vice president of the respondent, whether Mathews had signed a union application card Mathews replied that he had not but would do so the same evening and refused Allen's request to "hold off for a few days." Allen thereupon inquired of Mathews how he intended to vote in the election of represen- tatives which was then apparently deemed imminent. Mathews replied that the ballot would be secret and refused to divulge what his action would be. Employee Einar Bredenberg testified without contradiction, and the undersigned finds, that late in March 1940, Barclay spoke to a meeting of employees in the plant, told them that he would not permit union interference with his business, that he was sufficiently well to do to permit his immediate retirement from business, and that the Union could procure no more for the employees than he could himself give them. On about March 29, the respondent laid off two active union employees, allegedly on account of reduced production On March 30, according to Trainor's testimony which the undersigned accepts, Allen sat in an automobile outside a union meeting place Trainor told him that his action in so doing was violative of the provisions of the Act.' On about March 31, the Union filed charges of unfair labor practices against the respondent with the Regional Office of the Board. On about April 1, the respondent laid off five more employees. Trainor testified, and the undersigned finds, that Barclay told him that those laid-off would be perma- nently severed from their employment. Barclay individually called the seven employ- ees involved to his office, told them that retrenchment required the respondent's dispensing with their services, and gave each a week's severance pay. The under- signed finds that the respondent discharged the seven employees. At about this time, or shortly thereafter, despite the alleged slackening of produc- tion, the respondent posted a notice informing its employees that increases in rates, as authorized by its board of directors some weeks before and above set forth, had been promulgated effective April 1. On April 1, the Union wrote the respondent, stating that it represented the majority of the employees, enclosed a proposed agreement, and requested collective bargaining negotiations On April 3, the Regional Office informed the respondent that the Union had filed charges against it. On April"4, the respondent replied to the 5 Trainor's unconti adicted and credible testimony 6 Allen has since died 7Aleen was one of the three membei s of the respondent's board of directors Barclay admitted having previously discussed with him the Union's efforts to organize the employees WIRE ROPE CORPORATION OF AMERICA, INC. ' 397 Union's letter, pointed out that it had no proof of representation nor of the fact "that the proposed agreement was drawn by our employees," and requested that the Union obtain certification by the Board "so that we shall not do our employees a gross injustice in negotiating with a party not of their choice" On April 5, the respondent reinstated the seven employees whom it had previously discharged, without loss of pay, and so notified the Union which thereupon withdrew its unfair labor practice charges, without prejudice. Shortly thereafter, early in April, Trainor, together with another union representa- tive and several of the recently reinstated employees, met with Barclay at the latter's home. According to Trainor's undenied testimony, which the undersigned accepts, Barclay told those present that while the respondent did not object to its employees' belonging to a union, it was not in a position to compete with other corporations in the wire rope field in the matter of wage rates and that any effort by the Union to impose upon the respondent a rate structure comparable to those of its competitors, would result in hardship on both the employees and the Company At the meeting, Barclay agreed with the Union to a consent election of the respondent's employees A Board Field Examiner thereafter visited the plant and discussed plans for such an election, and the constitution of the unit appropriate for the purposes of collective bargaining with Barclay. With matters in this posture, the respondent called a meeting of its employees in the plant on the afternoon of the first or second Saturday in April' Barclay testified that he called the meeting "to get my men together in the shop and to talk to theta about our point of view and to ask them of some of the things that might be disturbing them, to tell them that we wanted their vote of confidence .. " and because they "were talking union" and he wanted to know why. ,The Union conducted a meeting of the employees on the morning before the respondent's gathering. Its representatives warned those present to be wary of the respondent's blandishments and reminded them that despite their recent wage increases, "they were still far below the industry." The respondent served beer and food at its meeting to the employees Barclay, who testified that the respondent's management then "felt, and we still feel, we can do a better job with our men in the matter of labor relations than any outside collective bargaining agent can," addressed the employees accordingly, stressed the recent in- creases in pay, and asked them to give the management a year's vote of confidence The employees thereupon retired, and with the exception of about four dissidents, among then union members Einar Bredenberg, whose case is hereinafter discussed, and his son Leroy, determined to do as requested by Barclay. They thereupon returned to the meeting and announced that they gave the respondent their vote of confidence Barclay thereafter outlined to them an ambitious respondent-sponsored plan for their benefit including a proposed $18,000 club house for their use, athletic facilities, a library, and certain educational opportunities. Following the meeting, the Union's meetings were sparsely attended and it shortly fell into desuetude The consent election of the employees were never held As Barclay put it, the Union "didn't bother us after that." 2. Conclusions The evidence clearly reveals that the respondent, true to Barclay's statement to Trainor, immediately after the management became aware thereof, embarked upon a 8 The plant did not at that time operate on Saturday 9 Although Haury and Allen were also present, the record does not disclose their having pokers to the assemblage. 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD course of action effectively designed to frustrate the Union's organizational efforts From the entire evidence, particularly. the pay increases effective April 1, the undersigned concludes and finds that the discharges of the seven employees reinstated after the respondent was informed that unfair labor practice charges were pending against it, were motivated, not by any slackening of the respondent's business, but by the respondent's set purpose to stop the plant organization by the Union. The granting of the pay increase and its timing were obviously, motivated by the same purpose; the undersigned so finds. The vote of confidence which the respondent obtained from the employees, was clearly, in view of all the surrounding circum- stances, directed against the Union and constituted an unwarranted injection of itself into a question which the employees were entitled to decide for themselves without interference by the respondent. The undersigned finds that by Allen's questioning of Mathews, in Haury's presence, regarding his union affiliation and intended vote, and urging him to postpone joining the Union; by Allen's surveillance of a union meeting place; by Barclay's anti-union statements related by Bredenberg; by the discharge of seven union employees, by granting a wage increase to the employees at a time when the Union was seeking to bargain collectively with it. and by conducting a vote of its employees resulting in their repudiation of the Union, the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act B The Union renews its drive in 1943, continued interference, coercion, and restraint In April 1943, the Union again undertook organizational efforts among the respond- ent's employees 10 The respondent again countered with an anti -union campaign of increasing bitterness and intensity , reaching a climax at the time of the election held on January 12, 1944 Employee Dominick DeMaio testified without contradiction , and the undersigned finds, that during June 1943, at a time when DeMaio , a union member , was very active in procuring union applications among the employees ,11 Foreman Anthony Ruggiero told him respecting the Union , "As a friend, I advise you to let it go ." DeMaio further testified without contradiction , and the undersigned finds, that during July, Night Superintendent Mazzacane spoke to him in the plant, said he was a nice fellow , asked, "Aren't you sticking your neck out for trouble"? indicated that he knew DeMaio was working for the Union , and advised him to keep his nose clean. Employee Dino Livieri testified without contradiction , and the undersigned finds, that during the spring, Foreman Chris Valenti told him that he understood Livieri was one of the Union 's organizers Livieri told him that while he was a union mem- ber, he was not an organizer Valenti thereupon advised him to so inform the man- agement because "They believe that you are one of the leaders." Former Night Superintendent Leroy Bredenberg,' of the fine wire department, testified that during April or May , his superior , General Superintendent Daniel Davis," of that department, asked him to make written reports to him of any union activity among the employees, stating that Bredenberg had friends in the plant and could thus obtain the desired information Both Bredenberg and Davis testified that Davis asked Bredenberg for reports on employees who stayed away from their work, because production was dropping on his shift Davis also testified that he "wanted to- 10 In 1940 there were about 75 employees in the plant, during January 1944, there were some 550 u He testified, and the undersigned finds, that he "signed every one in [his] department." 13 It will be remembered that Biedenberg and his father, Emai, opposed the 1940 vote of confi- dence in the respondent, Bredenberg became night superintendent about December 1942 13 Davis' wife is Haury's cousin_ WIRE ROPE CORPORATION OF AMERICA, INC. 399 know everything that was going on, in fact , no matter what went on I wanted to know . . ." He denied ever discussing the Union with any employee , "because I was given orders by Mr. Haury not to . . ." The evidence , however, reveals that Haury's instructions to that effect were not given to the supervisory employees uritil August, some months after the Bredenberg -related conversation respecting union activities The evidence further reveals that after the Union 's drive became generally known in the plant, the respondent, allegedly because production was suffering , instituted strict rules against employees ' leaving their machines 14 The undersigned , from all of the relevant evidence, concludes and finds that Davis asked Bredenberg to report on union activities in the plant as he testified . Bredenberg , however, made no reports and was transferred to the day shift when he expressed himself as being unable to keep the employees at their machines during an entire shift 15 He thereupon asked Haury to be allowed to "go back on the machines " He testified without contradiction , and the undersigned finds, that Haury suggested that he first take a four month's lay -off because he, was well liked by the employees, and if he were "put back on the machines, it would cause a lot of contention and create union activity, and they would want to join the union to get [him ] back on nights, as night superintendent." Bredenberg resigned his position with the respondent on July 20 and at the time of the hearing was third mate on an Army cargo vessel. Employee Michael Annatone18 testified that late in June , Superintendent Davis warned him not to talk about the Union in the plant , warning hin that he might be discharged for doing so. Annatone answered , "You can't get fired for talking about trying to organize," whereupon Davis told him that there were other ways . Davis did not specifically deny the remarks attributed to him, confining himself to his general denial set forth above. The undersigned finds that he spoke to Annatone substantially as testified by the latter. C. The discriminatory discharges 1. Michael Annatone Annatone was employed by the respondent from June 1, 1942, to July 20, 1943 During the summer of 1942, Superintendent Davis told him to continue his good work and that if he did so, he would "be there for life." Annatone joined the Union in May or early June 1943, and thereafter talked of the Union to several employees in the plant. Late in June, Davis, as has been found above, told him to stop it, and despite Annatone's protest that the employees were free to talk of organization, warned him that he might be discharged for doing so So far as the record discloses, Annatone's work was never criticized by the respondent prior to his discharge." During his employment he acted for a period as an instructor of new employees. On July 9, 1943, Davis reported in writing to Vice-President Hauiy that the night superintendent14 had reported Annatone asleep "on the job" and that he had warned all operators about certain defective work emanating from the department. Breden- berg testified that he had made no reports o$ any kind to Davis regarding Annatone 14 The plant was operating on two shifts of twelve hours each during the entire 1943-4 period covered by this Section hereof. 18 He was temporarily replaced by Davis. le His discharge is discussed infra. 14 Annatone's undenied and credible testimony. 11 Annatone so testified. Davis testified that he thought he had mentioned certain allegedly defec- tive work to him, but admitted that he might have done so only through a foreman The record discloses no mention of bad work by a foreman to Annatone 19 Then Leroy Bredenberg - 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Davis himself testified that Bredenberg had filed no reports with him. The undersigned finds that Bredenberg did not report Annatone asleep to Davis and that insofar as the latter's report so indicated, it was a fabrication. On July 16, Davis again reported to Haury that he had found Annatone asleep, adding that he warned hint regarding it as well as creating "had work s20 Annatone testified that when Davis approached him on this occasion he was sitting on a stool at his machine feeling the wire being made thereby with his fingers,2' and that while his eyes were closed, he was not asleep Davis testified that Annatone's stool was tilted against the stand of the reel on which the wire was being wound, that his hands were behind his head, and that when he shook Annatone, the stool fell forward so that all its legs were on the floor. The undersigned is convinced, from the entire relevant testimony, that Annatone was dozing at his work; he so finds He further finds, however, that Davis, contrary to his statement in the report, did not warn Annatone about creating defective work. On July 17, Davis again found Annatone dozing and again woke him up.22 He reported the incident to Haury and also reported that he had found two reels of cable with a "bad spot in each" made by Annatone, and in the same paragraph of his report, recommended that he be released. Davis testified that he did not know how Annatone's allegedly defective work had reached his attention nor whence it came. The evidence indicates, and the under- signed finds, that unless an employee is detected while actually causing a defect, tracing the responsibility for defective wire is impossible. On July 20, Davis discharged Annatone, handed him a release slip reading "Work unsatisfactory," and his pay in full According to Annatone's undenied testimony, which the undersigned accepts, Davis told him at that time, "Don't take everything seriously. It was Haury's idea." A day or two thereafter, Annatone, spoke to Foreman Victor Parri, wh°o, with another employee, told him that he had been doing good work, asked if he had talked of the Union, and upon being informed that he had, stated that perhaps his doing so was responsible for hi"s discharge 24 During the week following his discharge, Annatone interviewed Haury and Davis on a number of occasions, in a fruitless effort to obtain information respecting his allegedly defective work. He was never shown the wire in question and except that Davis informed him it had been thrown on the scrap pile, was vouchsafed no details concerning it. On one occasion, Davis told Annatone, "Why don't you go to look for another job? . . . After a couple of weeks, Haury will forget about it, and you will come back without loss of your bonus or anything." The last time he saw Davis, Annatone told him, "I don't think I was fired for bad work, but I think I was fired on account of the union." Davis replied, "Figure it your own way."'' Annatone thereafter, on August 12, 1943, obtained permanent employment elsewhere and testified at the hearing that he did not desire reinstatement by the respondent. Beyond Davis' testimony to the effect that-he would recommend the release of any employee who was "involved" in the incidents reported by him to Haury, the respond- 20 Davis was at this time acting as temporary night superintendent , vice Bredenherg 21 In order to detect defective product. 22 Annatone reiterated that he was not asleep The undersigned rejects his denial. 23 Davis testified on cross -examination by counsel for the Union: Q. You could not tell in any given defect whether it was or was not [the operator 's] fault? A. You could not tell that on anything. 24 Annatone's undenied testimony. 25 See footnote 24. WIRE ROPE CORPORATION OF AMERICA, INC. 401 ent's position as to its reason for discharging Annatone, is not definitely stated in the record E0 The evidence shows that with a possible exception in 1941,' no employee other than Annatone had ever been discharged for sleeping Michael E Chernovetz, a production efficiency engineer for two years, testified, and the undersigned finds, that during his tenure Annatone was the only employee dis- charged by the respondent for any cause whatsoever. He also testified, and the under- signed finds, that two employees who had left the plant during working hours 'and returned "staggering drunk" were disciplined by two clay lay-offs, that another had ruined 200 feet of cable and received a reprimand, that another had engaged in a fight in the plant and been disciplined by a week's lay-off, that two, employees who had exuberantly raced through the plant chasing each other in imminent danger of their lives from its rapidly moving machinery were reprimanded, that another had drunk beer in the plant without reprimand, and that the members of the plant ball-team, who were in the habit of coming to work late or not reporting at all, were not disciplined for doing so. Chernovetz also explained that the respondent had suffered an acute manpower shortage for at least a year, that at the time of the hearing, it was some 30 men "short," and that "conditions which we tolerate today we would not tolerate at other times .. we could be more strict at other times, and we can't be as strict today." Employee John Ferrera testified without contradiction, and the undersigned finds, that during October 1943, his foreman transferred him to another job because he had been sleeping on the job "a number of times " He further testified, and the undersigned finds, that during the night shift of 12 hours, many employees, himself included, frequently dozed at their machines Both Haury and Davis, although they admitted knowledge of union activity in the department and plant, denied knowing that Annatone was a union member. As found above, Davis had warned Annatone to cease talking of the Union in the shop on pain of discharge. The undersigned, from all of the surrounding circumstances and the evidence as a whole, concludes and finds that the respondent was well aware of Annatone's union membership and activity. All of the circumstances revealed in the record, including (1) the fact that, as found in the succeeding Section hereof, Einar Bredenberg's return to work was at one time predicated upon his son Leroy's certifying to the respondent that he had not given affidavits to a Board Field Examiner with respect to the Annatone case," (2) the respondent's knowledge of his union membership and activity, (3) the respond- ent's telling him that it predicated his discharge upon certain defective work which he was never shown and as to which the respondent was incapable of identifying employee responsibility, (4) the respondent's implacable hostility to the Union both before and after his discharge, (5) the failure of the respondent to make clear its position as to the cause of his discharge, which if based in any degree upon his having dozed at work, constituted discipline by the most severe punishment at its command for acts, the commission of which by other employees, at most resulted in their transfer to other jobs in the plant, and (6) the fact that the respondent was at all times in desperate need of operators, combine to convince the undersigned that it did not discharge Annatone for faulty work but despite its knowledge that circumstances foreclosed the possibility of attributing the responsibility therefor to him, seized =° Haury, who must be assumed, and whom the undersigned finds, to have considered the matter from July 17 to 20, and to have ordered Annatone's discharge on the latter date did not testify respecting his reasons for doing so The respondent's brief states that "to Counsel's mind the fact of sleeping on the job was even more serious [than his defective work] " 87 Davis testified " . . I am not too sure on that", no corroboration appears in the record 241 Bredenberg resigned on July 20, and Annatone was discharged the same evening 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD upon such work as a pretext for ridding itself of him because of his union member- ship and activity and thereafter advanced his dozing on the job as additional and retrospective justification for its action in doing so. He so finds The undersigned further finds that the respondent has discriminated against Anna- tone in regard to the hire and tenure of his employment, thereby discouraging membership in the Union. 2. Einar Bredenberg Bredenberg was one of the first five or six persons employed by the respondent when it began operations in 1931, and remained in its employ until July 26, 1943. Although he was not appointed to a supervisory post in the plant, he instructed new employees as the plant grew through the years, acted as supervisor of the machines, and was "watching out for all that was going on." In 1936, an accident caused recurrence of a condition caused by a childhood injury to his back, and neces- sitated his hospitalization for about six weeks and absence from work for half a year. The record demonstrates that he was an exceptionally skilled worker. As has been found above, he and his son Leroy were dissenters from the April 1940 vote of confidence in the respondent. When the Union again became active in 1943, Bredenberg, although he did not attend its meetings, told employees in the plant, among them Shirley Swanson, "that we should have a union," and we wouldn't be hurt the way we were hurt before."" In July 1943, Bredenberg was acting as relief man in the closing department si On July 26, Superintendent Hihner Sundberg told Bredenberg that Vice-President Haury had advised him of the imminent arrival of a new machine which needed expert handling, and that Bredenberg had been chosen for the job of running it. Sundberg also informed him that pending the-arrival of the new machine, Bredenberg was to help on the "number six" machine a` Bredenberg protested that the work on the number six machine was too heavy for his injured back' and asked, "Is that all you got?" Sundberg merely shrugged his shoulders Bredenberg then told him, "If that is all you have got for me, that means I have to go home," and thereupon left the plant On July 27, Bredenberg spoke to Haury, explained that he had not "walked out" but had left the plant because he could not do the heavy work required on the number six machine and informed him that he was about to take a trip to visit relatives Haury told him he would speak to Barclay concerning Bredenberg, and said, "When you come back come back to see me and everything will be straightened out " Two weeks later, Bredenberg returned to New Haven, interviewed Haury, and was told by the latter that on account of the annual plant picnic he had been unable to speak to Barclay about Bredenberg's return to work He asked Bredenberg to return the following week. When the latter interviewed him at that time, he told Bredenberg "You know Barclay. He don't hire anybody" When Bredenberg subse- rze Swanson, as is related , mifra, became secretary of the Committee in 1944 80 This, and many of the succeeding findings herein, are based upon Bredenbeig's uncontiadicted and credible testimony. 81 He relieved operators on their weekly day off, the employees worked a six-day week but the plant operated on a seven -day production schedule. ss In order to accustom Bredenberg to the work required in connection with the new one 09 The "seven wire" machines which Bredenberg was theretofore operating involve handling spook of wire weighing some 105-108 pounds which are hoisted into the machines by means of block and fall. They are the lightest machines in the plant. The "number six" machine involved handling spools weighing 250 pounds which must be rolled by the operator and his helper between 6 and 50 feet on the concrete floor of the plant . They are hoisted in the machine by means of an electric hoiet Bredenberg had occasionally operated other heavy machines in the plant , and in 1938 , had obtained transfer from one similar to the number six. WIRE ROPE CORPORATION OF AMERICA, INC 403 quently again saw Haury, the latter asked him to procure from Leroy Bredenberg a statement to the effect that he had signed no affidavits in respect to the Annatone discharge and stated that when it was received, he would "get things rolling." Leroy wrote such a letter to Haury who thereafter told Bredenberg that he had shown it to Barclay who insisted upon an additional statement from Leroy to the effect that he had "never said anything against the company." No such letter was received by the respondent. Some weeks thereafter, during October, Bredenberg again interviewed Haury at the plant. Haury on that occasion offered him a position on a "25 wire 12/" machine" at $1 10 an hour, the same pay he had received on his former job. Bredenberg being an old employee received 15 cents per hour more than the maximum rate paid in the "fine wire" department. Bredenberg said he could not handle it because it was ton heavy and "would be almost as bad as Number Six" Haury thereupon told Breden- ber that the employees were much exercised about the latter's departure from the plant, stated that if Bredenberg returned at that time they would assume that the Union had been responsible for his coming back to work, that the plant did not need a union, and that if the Union came into the plant the smoking and restaurant privileges of the employees would be the subject of contest between it and the respondent, that an election was imminent3', and that if Bredenberg stayed home "until it is all over," Haury would then give him a job and that the respondent "would take care of" him Finally Haury told Bredenberg that a Board Field Examiner had interviewed Barclay and himself in regard to the Annatone case some time before, had informed them that Leroy had made an affidavit concerning it, and that after the Examiner left the office, Barclay had told Haury, "I told you that the Bi edenbergs were in back of it "3' Bredenberg left the interview with the understanding that Haury would get in touch with him when the time was propitious He never thereafter heard from the respondent. The respondent contends in its brief that Bredenberg was not discharged but walked off his job because he "was being fussy and got mad and quit" It also contends that it was unable to restore him to his old job because of the disparity between his rate of pay and the maximum pay rate in the department. The circumstances surrounding Bredenberg's quitting the plant on July 26, standing alone, might well give some force to the respondent's position The subsequent devel- opments, however, including Haury's repeated putting him off, never offering him a job that he could under the obtaining conditions perform, demanding that Leroy fur- nish a writing to the effect that he had made no affidavits in the Annatone matter, and a further writing stating that he had made no statements "against" the respondent, which Leroy was coriscientiously unable to furnish, advising Bredenberg to stay from the plant until after the election and thereafter failing to call him hack despite his promise that he would do so, as well as his revelation that Barclay believed the Bredenbergs to be "in back of" the union movement in the plant, combine to convince the undersigned that the respondent constructively discharged Bredenberg on July 26. Bredenberg was one of the oldest employees in point of service and probably the respondent's most skilled operator. In view of the severity of the manpower shortage obtaining in the plant and the fact that as Superintendent Sundberg testified, there 34 Bredenbeig had operated such a machine during his employment, but as Superintendent Sund- berg testified , only occasionally, "when somebody was off " It is also a heavy machine involving substantially the sane sort of work as the Number Six 35 On September 10, 1943, the Union filed its petition for investigation and certification of representatives 30 Barclay testified that lie could recall making no such statement The finding is based on Bredenberg 's undenied testimony that lrauiy infouned him that Baiclay did in fact make it 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was need at all times for employees to perform Bredenberg's former tasks in the department, the undersigned is of the opinion that, absent Bredenberg's union con- nections" he would immediately have been assigned either to his former task or to another job he was capable of performing in the plant Instead, he was kept out of the plant until after the election, and the Union having been defeated, not thereafter communicated with. Bredenberg having occupied his former position at the dispatity in pay now first advanced by the respondent as having made his re-employment therein impossible, the undersigned in the absence of any explanation of this inconsistency by the respondent, finds its contention to be without merit. In the light of all of the circum- stances revealed by the record and upon the entire evidence, the undersigned is convinced and finds that the respondent knowingly assigned Bredenberg to a task which he was physically incapable of performing, thereby causing him to leave the plant, and thereafter refused to reemploy him because of his union membership and activity. He further finds that it has discriminated against him in regard to the hire and tenure of his employment, thereby discouraging membership in the Union. D. The election, interference, restraint, and coercion 1. Chronology of, events D In August 1943, the Union, having revived its campaign in April, wrote the respond- ent stating that it was the representative of the employees and desired to enter into negotiations looking to the execution of a collective bargaining agreement On August 24, the respondent answered, suggesting that the Union take steps to obtain certifica- tion by the Board. On September 10, the Union filed its petition for investigation and certification, on September 30, the Regional Director issued notice of hearing thereon, on October 13, a hearing on the petition was conducted by a Trial Examiner ; on October 28, the Board issued its Decision and Direction of Election, providing that an election of the employees be conducted by the Regional Director within 30 days, on November 25, the Board issued its Amended Direction of Election extending the time within which the election might be conducted to January 15, 1944, on January 12, 1944, the Regional Director conducted an election of the respondent's employees in which the Union received 126 votes while 319 votes were cast against it At the hearing held October 13, Union Representative Trainor suggested to Presi- dent Barclay that an election campaign which would "bring to the front everything which is bothering employees" might be avoided by means of a consent election or better, collective bargaining might be undertaken with the Union upon its exhibiting evidence of majority representation. Barclay replied that it was ridiculous for the Union to assume that he would open the respondent's doors to the Union, that he had not taken much notice of the Union's campaign thus far, but that in the future he would undertake to do an anti-union organizing job himself and would embark upon an aggressive campaign to "present a picture to the employees that would bring about a large no-union vote."' The respondent thereafter promptly launched a virulent anti-union campaign among the employees. It consisted in part of a series of posters and letters posted and 87 Sundberg, Haury, and Barclay denied knowledge of Bredenbeig's union membership The undersigned , in view of the findings made above, deems their denials unbelievable and rejects them 18 Trainor's credible testimony Barclay who testified that he made no statement to Trainor at the time, also testified, however, that after the conversation he made up his mind to defend himself against the Union's "antagonism." The undersigned finds that lie spoke to Trainor substantially as the latter testified. WIRE ROPE CORPORATION OF AMERICA, INC. 405 distributed in the plant, considered in the following subsection hereof, and in part of other acts of interference related thereafter 2. The respondent's poster and letter campaign (a) Sequence of distribution Following the hearing, the Union issued a leaflet in which it commented on the hearing and stated that Barclay had expressed himself thereat as being in favor of the Union's representing all employees "except those excluded when the election took place." On October 16, the respondent issued a leaflet which it distributed to all employees while at work in the plant. Signed by Barclay, as president of the respond- ent, it stated, among other things, As a matter of fact, I must clearly advise all of the employees of the [respondent] that it is definitely not my desire to have you join the Union. It is my personal opinion that you have absolutely nothing to gain by joining any Union I further sincerely believe that our labor policies, as well as our individual treatment of our employees, is beyond criticism. ' What I would really desire is a vote of confidence from all the workers . and the immediate discontinuance of any further agitation which tends to reduce our efficiency during the war perioea.3° On the same day, the respondent distributed another leaflet similarly signed, in which Barclay undertook to inform the employees that they did not need to join the Union in order to hold a job with the respondent, and further stated: Do not permit any Union enthusiast to brow-beat you into joining the Union. Have the courage of your own convictions. Decide for yourself. If you don't want a Union tell anyone who approaches you exactly how you stand In the event anyone threatens you and ma[k]es statements as to your being kicked out because you refuse to join the Union, please come to inc personally and give me the facts and action will be taken to remove the offender On October 22, the respondent posted the first of a series of 19 posters in the plant, the last of which was posted January 10, 19441two clays before the postponed election They were about 13 by 24 inches, printed on heavy board and placed in each of 13 wooden racks, 12 feet long and 4 to 6 feet high strategically placed throughout the plant and made to hold 20 posters.40 The first poster calling attention to the Union's campaign characterized its leaflets as containing MIS-STATEMENT OF FACTS UNTRUTHS ON COMPANY POLICIES PROMISES, OUTSIDE OF WAR LABOR BOARD RULINGS GUARANTEES THAT CANNOT BE KEPT MIS-LEADING STATEMENTS its statements by organizers as being FALSE RUMORS WITHOUT FOUNDATION VEILED THREATS OF YOUR FUTURE IMPOSSIBLE PROMISES, and informed its employees that the respondent would set before them a series of 89 Emphasis supplied. 40 The racks and posters remained on display in the plant at the time of the heating 406 DECISIONS OI NATIONAL LABOR RELATIONS BOARD bulletins enlightening them on company policies, laws governing wages, employee relations, and giving them accurate statistical information, and urging that any ques- tions be taken by the employees to Vice-President Haury. The poster of October 25 contained extensive quotations from War Labor Board orders and stated, "Any other explanation or interpretation of the War Labor Boai d's rulings that you have heard are gross mis-statements of the law" No men- tion was made therein of the "bracket treatment" used by the War Labor Board and Barclay admitted at the hearing that the poster was therefore inaccurate The posters of October 26'and 28,-outlined the respondent's wage history, its wage plan, and what it had sought to obtain from the War Labor Board. The poster of October 30 dealt with the bonus, outlined the large amounts paid to employees during the years 1941, 2, and 3, and significantly stated by way of reminder to the employees that : The Bonus is Not Continuous It is Granted by a Vote of the Directors and the Corporation at Their Annual Directors Meeting The November 2 poster entitled "YOUR ACTUAL WAGES" included the bonus in such calculations as though it were a part of the wage structure although the previous poster had pointed out that it must be voted annually by the respondent's directors.91 The posters of November 4, 6, and 8 respectively, dealt with "OVERTIME," "SENIORITY RIGHTS," and "EMPLOYEES RELATIONS." The series thus far, was commented upon in a poster entitled "PERSONAL MESSAGE TO YOU," posted November 10. It reminded the employees, "Remem- ber that you are going to decide an issue of vital importance to YOURSELF," commented on the respondent's record, asked, Are YOU now going to let that record fail? Are YOU going to let outside disturbing influences destroy it? Are YOU going td become a party to the dis- turbance? Are YOU going to contribute to defeating the War Effort by breaking up harmonious cooperation with subsequent (sic) loss of production? Have YOU any reason to become a party to such action? Are you being guided by a "one of the fellows" or "join the mob" attitude? Do you know why?", and closed as follows: You owe it to your COUNTRY and to YOURSELF to use all of your efforts to promote the highest efficiency. It is your duty to refrain from becoming a party to any disturbing element.' By this action you will continue the harmonious cooperative spirit now existing." On November 11, the Union issued a leaflet urging the employees to become members in order to share in a prophesied increase in the wages "organized steel workers." On November 13, the respondent's board of directors, at a special meeting," voted that the respondent pay its employees any increase in wages that might be granted 41 Barclay testified that he was "pretty certain" that the War Labor Board would not permit removal of the bonus 42 See footnote 38, above. 41 The Direction of Election was issued on October 25 44 The undersigned finds, since the regular meeting of the directors is in February, that this meeting was specially called for the purpose. WIRE ROPE CORPORATION OF AMERICA, INC. 407 by the War Labor Board. On the same date the respondent distributed a leaflet signed by Barclay, which, called attention to this fact, characterized as absurd the Union's statement of November 11, stated that the Union's claim that the respondent's employees were the lowest paid in the industry was a "down-right falsehood and as unfair a 'remark as could be made against us," further stated that A minority of our employees are endeavoring to have you vote in favor of a Union. I wish to stand on our past performance record and I know your treatment while with us, will cause you to respond as a convincing majority by giving me a vote of confidence, and after outlining how the respondent "has demonstrated its continuing interest in its employees," closed with this adjuration: Decide how you should vote by weighing the evidence. Give us a vote of confidence on our past performance. On Novmber 18, the respondent issued a poster setting forth the terms of the action of its board of directors on November 13, on November 22, it posted another stating • The policy of your company has been at all times to consider and act upon an individual's request or group of employees' requests for betterment of working or social conditions and setting forth two examples of its actions in so doing, and on November 24, supplemented the preceding poster by another headed THE VOICE OF THE SHOP This poster which heralded the beginning of the respondent's campaign for the establishment of the Committee,' stated : THE VOICE OF THE SHOP SHOULD BE HEARD MORE OFTEN IT SHOULD BE PRESENTED BY EMPLOYEES CAPABLE OF COR- RECT THINKING AND WHO ARE UNDERSTANDING-OF OUR PROBLEMS. WE INVITE AND ENCOURAGE COMMITTEE ACTIVITY WHICH IS DEMOCRATICALLY FORMED FROM ALL EMPLOYEES OF THE COMPANY WE DO NOT CONSIDER THAT COMMITTEES FORMED FROM UNION MEMBERSHIP ARE SUFFICIENT REPRESENTATION OF ALL OF OUR EMPLOYEES and closed with the following : WITHOUT DOUBT MUCH CAN BE ACCOMPLISHED IT IS FOR YOU TO SPEAK! FORM YOUR COMMITTEES WISELY. MAKE KNOWN YOUR PROBLEMS AND PROPER ACTION WILL BE TAKEN. _ On November 25, the Board issued its order postponing the election until not later than January 15, 1944. No further communications were directed to the employees until a long letter dated January 3, 1944, and signed by Barclay, was distributed in the plant. In it the respondent commented on the Union's leaflet campaign, stating that the first 14 leaflets it had issued were nonsense; that the 15th, distributed December 30, 11 The Committee is considered in the following section hereof. 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1943, was equally nonsensical and constituted "absurd propaganda ;" that Barclay and Haury, the authors of the respondent 's literature , had been "talking sense from the very start of this campaign ;"' that they would continue their enlightened labor policy "so long as we find that our employees believe in us and give us their vote of confidence" ; that the Union's figures respecting the respondent 's war profits were mistaken, and that that subject "cannot be understood by [the Union], an organization which never prints a financial statement and never gives an accounting to its mem- bers;"" explained that construction of the promised $18,000 club house had been held up by war conditions but would be built as planned when conditions permitted ; that rather than being the lowest paid , the respondent's employees were, with some excep- tions, the highest paid in the industry ; that the Union's statements constituted propa- ganda "motivated only by a desire to win your vote in the coming election ;" that such propaganda must be carefully weighed; and finally appealed to the employees to "give us a vote of confidence in the coming election." On January 5, the respondent issued a poster stating that its employees in the service were being sent a sum of money equal to a month 's pay which those entering the service in the future would also receive. On January 6, the respondent issued a poster reiterating the 'undertaking of the directors to meet increased wage rates when and if allowed by the Federal authorities; on January 7, it issued a poster announcing that the board of directors at a December 18 meeting, had authorized severance pay equal to a month's pay to employees with six months' service and of two months' pay to those with three years' service;" on January 8 it issued a poster outlining its "WAGES AND WAGE INCREASES" and requesting the employees to ALLOW YOUR DIRECTORS TO CONTINUE THIS WELL-ORGANIZED PROCIRAM FOR YOUR BENEFIT; and on January 9, it issued a poster outlining its vacation policy reiterating its sever- ance policy and that with respect to employees in the service, establishing a "REWARD" of a $25 War Bond for employees who worked a year without loss of time.49 On January 10, two days before the election, the respondent issued a poster entitled "DEMOCRATIC DETERMINATIONS." It recommended that the employees "arrange by a democratic election to set up in each department a committee of a minimum of three ( and not less than one committee representative for every 15 employees within the department)" to meet weekly to consider "employee relationship problems" and bring them to the attention of "an overall committee, which will be made up of the chairman of the various departmental committees, who will in turn meet with the management committee twice a month ...", that an independent com- mittee be formed for the consideration of the problems of female employees, that representatives be elected for stated terms, and that social and sport committees be separately formed. The poster further stated that 46 Emphasis supplied 47 The Union publishes semi-annual audit reports, two of which aie in evidence, consisting of detailed financial statements prepared by certified public accountants Barclay testified that he was aware of its doing so when the letter was written, that "the detail of that is not sufficiently set forth so that one can understand it, because the members do not get the cleat facts on that point," that he thereby meant to convey that the reports were not easily undeistood, and that his statment in the letter was "probably" erroneous 4s The undersigned finds that this meeting, like that of November 13, was specially called "This additional compensation did not have the approval of the War Labor Boaid WIRE ROPE CORPORATION OF AMERICA, INC. 409 IF THE ABOVE DEMOCRATIC MEASURES ARE PUT INTO EFFECT MUCH WILL BE ACCOMPLISHED TO IMPROVE EMPLOYEE RELA- TIONSHIP and closed with the plea: TRY IT BY GIVING US A VOTE OF CONFIDENCE. On the same day, the respondent distributed another letter to the employees in the plant. It contained a resume of the respondent's previously uttered position as to wages, ridiculed the Union's undertakings with respect thereto, contained the copy of a letter from the respondent's accountants stating that its "adjusted surplus" was apparently less than the Union had claimed it to be, stated that if the employees "recognize our policies to be reasonable ; if you agree with us that we are doing everything within our power to establish proper relationship with you, then you can on election day render your vote of confidence by allowing us to continue to improve your conditions,60 as we have sincerely done in the past," urged careful reading of the "Democratic Determinations" poster, urged that the employees organize commit- tees as specifically recommended in the poster simultaneously issued and that they "Try this plan before you agree to allow any Union to represent you as your collective bargaining agency,"" and closed as follows : Wednesday will be Election Day. Your decision will govern the future policies of your company. CHOOSE WISELY. We, ask for a vote of confidence. On the same day, a 5% by 8% inch printed booklet entitled "Poster Digest" con- taining reproductions of the 19 posters and copies of the letters of November 13, 1943, and January 3 and 10, 1944, was distributed to all the employees in the plant during working hours.' On January 11, a ,one sheet "NOTICE" was similarly distributed to the employees in the plant It read ELECTION DAY is WEDNESDAY, January 12th. HAVE YOU READ THE POSTER DIGEST which gives thoroughly the policies of your Company on the PAST, the PRESENT, and the FUTURE? IT IS THE DUTY OF EVERY EMPLOYEE TO VOTE!!! REMEMBER THAT YOU ARE GOING TO DECIDE AN ISSUE OF VITAL IMPORTANCE TO YOURSELF. ALLOW YOUR DIRECTORS TO CONTINUE THEIR WELL ORGAN- IZED PROGRAM FOR YOUR BENEFIT. TRY IT BY GIVING US A VOTE OF CONFIDENCE. Sincerely, A F Haury, Vice President On the following day the Union was defeated, 319 to 126. Barclay in his testimony, characterized the result as being "about the worst slaughter they have had in a long time" About 1 a ni. January 13, when the ballots had been counted and the Union's rout learned, Barclay, several supervisors, and a few employees retired to the respondent's inner office where, as Barclay testified, they indulged in "a damn good slug of scotch." While they were there a telephone call from employee Fred Mazzacane's home was received. Barclay and the other supervisors with a supply of liquor for use in the ;o Emphasis supplied. 61 Emphasis supplied cz Barclay testified that the respondent failed to include its two letters of October 16 in this compendium , through oversight . As set forth above , they constituted the opening of the respondent's virulently anti -union campaign and contained overt instructions to the employees to refrain from joining the Union. 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD festivities thereafter joined the celebration of some 35 employees being held there in what Barclay characterized as "high spiritual elation." At the party' s close, Barclay took the celebrants to breakfast at a local restaurant and paid-the bill of some $20.00. b Conclusions with respect to the respondent' s poster and letter campaign Barclay testified that he did not want a union in the plant "because it is undeino- cratic," and that the respondent's numerous requests for votes of confidence from the employees were directed against the Union, which he did not want them to have. He explained that the "voice of the shop," by which the employees were to speak to the respondent's management could not be properly heard through a union because it would represent "a majority, and in some cases, that majority is not sufficient in itself to take in the greater portion of the men in the shop, and it leaves a minority unrepresented, so that its voice is not heard, and, consequently, it is my firm belief that the voice of the shop should be heard by democratic determination." He explained that he believed government by majority, as exemplified by the political organization of the United States, did not give proper representation to the electorate, and that in political or plant elections, less than 100% agreement on all questions by those represented, fell short of his ideal. He further testified that he was opposed to unions because the presence of a bargaining agency for the employees would result in the respondent's no longer having "the personal touch with them." The respondent's literature was studded with bald statements to the employees conveying to then the respondent's implacable hostility to the Union and clearly enunciating what was in effect its command that they vote against it. Its first letter, distributed on October 16, set the tone for the series. In it Barclay stated : ^'... it is definitely not my desire to have you join the Union . . . you have absolutely nothing to gain by joining ..." Thereafter the respondent continued in the same vein, reiterat- ing its statements to the effect that if the employees disobeyed its wishes and failed to reject the Union, they might well suffer retributive measures at its hands. Thus it pointed out that the bonus must be annually granted by the directors, requested that the employees "allow" it to continue "to improve your conditions," and generally made clear that their "vote of confidence" was a prerequisite of its con- tinuing its largesse. During the period of its campaign it also first commanded the employees' favorable reception of its "Democratic Determinations" and undertook to obtain their affirma- tive response thereto °' It additionally, by special meetings of its directors, put into effect certain benefits for its employees immediately preceding the election and announced the fact thereof in unmistakably significant terms.` And finally, on the eve of the election, reminding the employees that they were about to decide an issue of vital importance to themselves, again asked that it be allowed to continue its " program" for their benefit, and again trumpeted its demand that they give it their "VOTE OF CONFIDENCE." The respondent, by thrgats, innuendo, and expedient promulgation of benefits de- prived its employees of their right to freely select a bargaining representative of their own choosing. Simultaneously, it began its campaign for the imposition upon them of a representation plan, patently in violation of the Act. w "IF THE ABOVE DEMOCRATIC MEASURES . ARE PUT INTO, EFFECT MUCH WILL BE ACCOMPLISHED TO IMPROVE EMPLOYEE RELATIONHIP." si "ALLOW YOUR DIRECTORS TO CONTINUE THIS WELL-ORGANIZED PROGRAM FOR YOUR BENEFIT." WIRE ROPE CORPORATION OF AMERICA, INC. 411 The undersigned finds that the respondent by its poster and letter campaign above described, has interfered with, restrained , and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 3. Further interference by the respondent Former employee Louis J. Wolfe" testified without contradiction, and the under- signed finds, that during November, Vice-President Haury accused him in the plant of being a paid organizer for the Union and stated that if investigation showed that he was, or if he were found soliciting for the Union, the respondent would discharge " him. Wolfe denied being a paid organizer. In a later conversation, President Barclay, who endorsed Haury's investigation of Wolfe's activities, asked Wolfe if he was a paid organizer. Wolfe answered that he was noti0 Wolfe also testified without denial, and the undersigned finds, that Foreman Valenti on numerous occasions told him that the Union could not win in the plant Before and during the month following the Board's order postponing the date of the election, Haury addressed the 185 female employees of the 494 employees eligible to vote in the election, in a series of eight groups called to his office during working hours. Haury, according to his own testimony, "made known to them the facts of the extension and the date that had been set for the election,"" undertook to counteract union "propaganda" that "was destroying their minds," and urged them to occgpy "their minds with clean thoughts"' and indulge in social activities such as card parties, bowling, and the like to the end that "the disturbing influences" would be removed. Employees Beatrice Dunn and Dorothy McGuire variously testified, and the undersigned finds, that at the meetings with Haury which they attended, he also informed them that the respondent had endeavored to obtain permission from the War Labor Board to increase wages, that the respondent desired to keep the shop "democratic" and fight to keep the Union from entering the plant, and that the respondent would undertake to make certain improvements in their working conditions as soon as conditions permitted. Employee McGuire also testified without contradiction, and the undersigned finds, that when the election campaign "first started" Forelady Stella Ives stated in her presence that if the Union organized the plant, the employees' privileges would be taken away and that Negroes would be hired to work with them, and that on another occasion, Ives told several women employees in the washroom of the plant that she did not like the group in the Union. Employee Mathews testified without contradiction, and the undersigned finds, that at the respondent's 1943 Christmas party for the employees, Vice-President Haur called him a slacker for taking some time off lust before the party. Mathews replied that if he were a slacker, Haury was no better because he had removed the female employees from their tasks in order to talk to them respecting the election and that much time had been thereby lost. Haury replied that after the election fight was over, Mathews and five other employees, whom Haury did not name, would be discharged.b9 During the pre-election period, employees Fred Mazzacane, brother of Foreman Aldo Mazzacane, Eugene Sussman, and Joe Mendoza became active in conducting ee Wolfe worked for the respondent from March 23, 1943, to January 14, 1944, when he volun, tarily resigned. He joined the Union during the summer of 1943. 11 The respondent's investigation did not bear fruit and was eventually dropped m Only to those whom he interviewed after the postponement order 5sHaury testified that the imminent election had caused pcisonal acrimony distautetul to female employees , some of whom desired to be released as a consequence, 39 _llathews' undeuied and ci edible testimony 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD anti-union meetings of employees of the respondent The record shows that they circulated throughout the plant, advertising such meetings and taking up collections for them On one occasion, Mazzacane called some eight female employees from their work in Foreman Aldo Mazzacane's department, and took them into another department where he told them that the respondent would increase their wages pro- vided the War Labor Board permitted and that the Union could do nothing more for them The meeting lasted about an hour and during the girls' absence, their machines were operated by an adjuster " The status of the Mazzacane group in the plant is exemplified by the Paulson inci- dent. During December, employee Harry Paulson, a union member, told Haury that lie resented the activities of Foreman Chernovetz in preventing union members from moving about the shop and that he could make more money elsewhere, and tendered his resignation effective January 15, 1944 'Haury, told` Paulson that he might recon- sider at any time After the election, Paulson notified Haury that he desired to with- draw his resignation Haury thereupon referred the question of whether his with- drawal should be accepted by the respondent to a committee of twelve employees headed by F. Mazzacane, Mendoza, and Sussman They met on January 15, with Haury and voted to permit Paulson to withdraw his resignation "i The undersigned deems it highly improbable that the Mazzacanc hour-long meet- ing of female employees in the plant could have escaped the attention of the respond- ent's supervisors. He finds that it took place with the knowledge and consent of the respondent In the light of all of the circumstances revealed by the record, he is further persuaded and finds that the respondent was well aware of the anti-union activities of Mazzacane, Mendoza, and Sussman."° The undersigned finds that by the acts and statements of Haury, Barclay, Valenti, and Ives," by knowingly permitting the anti-union activities of the Mazzacane group in the plant, and by its action in the Paulson incident, the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. E Domination of and interference with the Committee Begun by its pre-election literature, the respondent's action to establish an inside organization of its employees was continued with renewed vigor thereafter On January 15, 1944, the respondent distributed a letter to the employees in the plant thanking them for their "emphatic Vote of Confidence," directing their attention to the "Democratic Determination" poster, declaring that the organization therein proposed might well be called the "Congress of Workers of Wire Rope Corporation of America," and stating that "We await eagerly your first indication what steps have been taken toward the perpetuation of the good work thus far achieved."" eo Employee Dunn 's uncontradicted and credible testimony 61 Paulson 's credible testimony u•- Employee Edward Burland testified without contradiction, and the undersigned finds, that he complained of the activities of the Mazzacane group to Foremen Erich Rotts and Irving Hulteen "3 Although the statements of Valenti and Ives may have been violative of the respondent 's orders to ifs supervisors to stay clear of the union subject, they nevertheless constituted unfair labor practices by it Solvay Process Company v N. L R B , 112 F (2d) 83, (C. C A 5), cert den. 313 U S 596 "i On January 15 or 22, 1944, the respondent, the plant being shut down, gave a Saturday night "drinking and dancing" "Victory Party" to which all employees Isere invited by noiices posted in the plant and for which the respondent printed tickets Barclay stated the purpose thereof to have been "the rehabilitation of feelings between non -union men and union men in there , so that we could reflect that and continue a wholesome condition, r,ithei than permitting a separation bc,tween our employees " Prior to this occasion, entci tamments by the i espondent to which all employees wcie invited had been limited to an annual Christmas party and a stunuiei picnic. WV1RE ROPE CORPORATION OF AMERICA , IN C. 413 On January 19, the respondent posted a notice stating that pursuant to its message of January 15, some employees had undertaken committee elections, but that they were doing so incorrectly inasmuch as the elections should be held by departments rather than by shifts The notice then listed the 10 departments in which elections were to he held, set forth a detailed, seven-step procedure to be followed in the elections and the selection and functions of the "over-all" committee, specified the duties and meeting times of the departmental committees, and furnished a complete list by departments, of employees "eligible" to vote Efficiency Engineer Chernovetz thereafter on January 24, February 3, 7, 9, 10, 11, 15, 16, and 18, conducted elections of all departments, in the plant on the respondent's time The respondent furnished ballot boxes for the elections and announced them by notices posted in the plant The election results appeared on the plant bulletin boards So far as the evidence reveals, no employees requested the respondent to perform any of these tasks for theme' Thereafter meetings of both "Employees Departmental Council" and the "Executive Board"66 thereof took place in the plant, the employees present being paid for lost time by the respondent. The evidence discloses complete domination thereof by the respondent. Questions of procedure and jurisdiction were referred to the respondent for "interpretation," proposed by-laws were revised and amended at the suggestion of management, and finally at the meeting of April 8, Barclay announced that the respondent had plans for a more elaborate organization to succeed it aA Numerous provisions of the by-laws indicate complete lack of independence by the Committee at this point in its development It is unnecessary, however, to discuss them, since the respondent's domination of its creature, is, as the undersigned hereby finds, patent The new development of the Committee was to be brought before a special meeting of the respondent's stockholders on April 22, the day after the close of the hearing, when the questions of providing the constitut on thereof to the respondent's employees and the perhaps consequently necessary modification of the respondent's by-laws were to be brought up for authorization. The constitution of the Committee, to be known as "The Departments of the Factory of the [respondent]", is in evidence. It provides for a tri-partite form of "government" roughly similar to that of the United States, and states that the directors of the respondent "ordain and establish" it for the employees The legislative body is composed of employees who may legislate within certain limits, the executive is the president of the respondent, and the supreme court consists of three represen- tatives of management and three employees.69 Members of the legislature must be 65 Shirley Swanson, secretary of the Committee , testified that she first became aware of the organization when an election was announced and the paraphernalia in connection therewith appeared in her department 00 The respondent's organization is shown by the record to have functioned under various names, as is found above. All of them, including the "Departments of the Factory of the Wire Rope Corporation of America , Incorporated ," hereinafter discussed , are appellations of the same organi- zation. For, convenience , and because its name at any particular time has no bearing on the under- lying question of its domination by the iespondent, the undersigned refers to it by the terns Committee 67 Barclay testified that he requested a copy thereof to the end that lie might prevent the employees having "just ... some damn fool things set forth" therein 68 At this meeting a grievance respecting ventilation was accepted by Haury , who was also present As Barclay testified , it was the respondent's purpose that the Committee represent the employees in matters of wages, hours of employment, and conditions of employment He stated that the respond- ent not only would treat with it concerning such matters , but that it had done so 66 The provisions respecting the functions of the Supreme Count are somewhat vague, but indicate that it has to determine issues brought before it by two-thuds vote It is thus apparent that the respondent's iepresentatives thereon would have the power to prevent any decision. 414 DECISIONS OF NATIONAL LAItOR REI. ATiOyS BOARD employees of the respondent of at least six months' service and must be employed in the department which elects them They are to be paid by the respondent for their time lost in attending sessions. The president may veto legislation, but his veto may be over-ridden by two-thirds of the legislature whose votes must, in that event, be recorded in writing. The legislature may not entertain hills for clues or collections of any kind, any sort of organization of the employees, or the appropriation of moneys from the respondent's treasury. The constitution is to remain in effect until the employees by majority vote shall indicate their desire to abandon it and "select some other means or method of establishing industrial democracy, justice, domestic tran- quility and general welfare" in the plant. It is to be ratified by four-fifths of the respondent's departments "supported by a certified letter signed by four-fifths of the employees of a department so signing,"7° and by the respondent's directors. - Barclay testified that in the event the stockholders of the respondent authorized the constitution, he would post it in the plant and request that "the voice of the shop" be heard. The new Committee, having no funds of its own, would have to meet on the respond- ent's premises,' all employees would be bound by its actions and could only escape them by resignation from their employment, all would be on record respecting the adoption of its constitution and its possible discard in the future as well as any over- riding of Barclay's vetoes, there is no provision for any meeting of the employees as such, and all representatives would be required to be employed by the respondent As in the case of the previous manifestations of the Committee, there is no evidence that any employees have asked that the proposed constitution be imposed on them. The respondent' s purpose in setting up the Committee, was explained by Barclay as follows "All we plan is to give them a constitution which will permit them to operate without instruction, within limitations, on certain things which they would have to seek further consultation on." The provisions of the proposed constitution are clearly demonstrative of the respondent's domination of the Committee. The employees were to be given the privilege of approving it under circumstances which would effectively obviate their being able to freely express themselves respecting their desires 27 Once functioning, the Committee would have no vestige of independnce and would necessarily be tinder the absolute and complete control of the respondent The entire picture is so patently at variance with the provisions and policies of the Act that any further recitation of the Committee's deficiencies as a proper representative of the employees for the purposes of collective bargaining with the respondent is unnecessary. The undersigned finds that the respondent has dominated and interfered with the formation and administration of the Committee, under its various names, and has contributed support thereto, and has thereby interfered with, coerced, and restrained 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 connec- tion with the operations of the respondent set forth in Section I, above , have a close, intimate, and substantial relation to trade, traffic , and commerce among the several 70 The requirement that only 80 percent of the employees ratify it marks a deviation from Barclay's belief that democracy cannot be achieved by less than 100-percent agreement 'n Barclay testified : "That is understood, sir," 72 The requirement that they certify their approval thereof in writing obviously exposes those who decline to do so to the respondent's displeasure and possible retributive action. \VIRE ROPE CORPORATION OF AMERICA, INC. - 415 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 and is engaging in certain unfair labor practices, it will be recommended that it cease and desist there- from and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the respondent has discriminated in regard to the hire and tenure of employment of Michael Annatone and Einar Bredenberg. The undersigned will therefore recommend that the respondent offer Einar Bredenberg immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges." The undersigned will further recommend that the respondent make Annatone and Bredenberg whole for any loss of pay they may have suffered by reason of the dis- crimination against them , by payment to each of them of a sum of money equal to that which he would normally have earned as wages from the date of such discrimination as follows : to Annatone, to August 12, 1943, when he obtained permanent employ- ment elsewhere ; to Bredenberg, to the date of the respondent's offer of reinstatement, less the net earnings" of each during said respective periods. It has been found that the respondent has dominated and interfered with the Committee and has contributed support to it. The effects and consequences of such domination, interference, and support render the Committee incapable of serving the respondent's employees as a genuine collective bargaining agent, and the recognition thereof as the bargaining representative of the respondent's employees constitutes a continuing obstacle to the free exercise by the employees of their right to self- organization and to bargain collectively through representatives of their own choos- ing The undersigned will therefore recommend that the respondent withdraw all recognition from and completely disestablish the Committee as the representative of any of its employees for the purposes of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other condi- tions of employment The undersigned will further recommend that in the event the respondent has entered into any contract with the Committee, that the respondent cease and desist from performing or giving effect thereto, as well as to any extension, renewal, modification, or supplement thereof, or any superseding contract which may now be in force with the Committee, relating to grievances, labor disputes, rates of pay, hours of employment, or other conditions of employment. Nothing herein, however, shall be deemed to require the respondent to vary or abandon those wage, hour, seniority, and other substantive features of its relations with the employees themselves, which the respondent may have established in performance of the contract, if any, or such contract as extended, renewed, modified, supplemented, or superseded. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the undersigned makes the following: 'a Since Annatone does not desire it the undersigned will not recmomend that the respondent offer him reinstatement. 74 By "net earnings" is meant earnings less expenses, such as for transportation, romp, and board, incurred by an employee in connection with obtaining work and working elsewhere than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewheie See Matter of Ciossett Lumber Company and- United Brotherhood of Carpenters and Jowins of Aineitica, Liwnhei and Sawmill Workers Union, Local 2590, 8 N. L R B 440 Monies received for work performed upon Federal, State; county, municipal, or other work-relief projects shall be considered as earnings See Republic 'Steel Corporation v N L. R. B., 311 U S 7 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LA\V 1. United Steelworkers of America (C 1 0.), and Congress of Woikers of Wire Rope Corporation of America, also sometimes known as the Shop Committee, the Over-All Committee, the Departmental Committee, and the Departments of the Factory of the Wire Rope Corporation of America, Incorporated, are labor organiza- tions within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with Congress of Workers of Wire Rope Cor- poration of America, (also sometimes known by the appellations set forth above), and contributing support to it, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. 3 By discriminating in, regard to the hire and tenure of employment of Michael Annatone and Einar Bredenberg, thereby discouraging membership in United Steel- workers of America (C. I 0 ), the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act 4. 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. 5 The aforesaid unfair labor practices are unfair labor practices affecting com- merce, within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, the under- signed recommends that the respondent, Wire Rope Corporation of America, New Haven, Connecticut, its officers, agents, successors, and assigns, shall I Cease and desist from. (a) In any manner dominating or interfering with the administration of Congress of Workers of Wire Rope Corporation of America, the Shop Committee, the Over-All Committee, the Departmental Committee, or the Departments of the Factory of the Wire Rope Corporation of America, Incorporated, or with the formation or admin- istration of any other labor organization of its employees, and from contributing support thereto ; (b) Recognizing Congress of Workers of Wire Rope Corporation of America, the Shop Committee, the Over-All Committee, the Departmental Committee, or the Departments of the Factory of the Wire Rope Corporation of America, Incorporated, 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; - (c) Performing or giving effect to any contract it may have entered into with Congress of Workers of Wire Rope Corporation of America, the Shop Committee, the Over-All Committee, the Departmental Committee, or the Departments of the Factory of the Wire Rope Corporation of America, Incorporated or any extension, renewal, modification, or supplement thereof, or any superseding contract with said organization which may now be in effect ; (d) Discouraging membership in United Steelworkers of America (C. 1 0.), or any other labor organization of its employees, by discharging, refusing to reinstate, or otherwise discriminating against any of its employees in regard to the hire and tenure of their employment, or any term or condition of employment; (e) 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 United Steelworkers of America (C. I. 0.), or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage WIRE ROPE CORPORATION OF AMERICA , INC. 417 in concerted activities for the purposes of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the undersigned finds will effectuate the policies of the Act : (a) Withdraw and withhold all recognition from Congress of Workers of Wire Rope Corporation of America, the Shop Committee, the Over-All Committee, the Departmental Committee, or the Departments of the Factory of the Wire Rope Corporation of America, Incorporated, as the representative of any of its employees for the purposes of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and completely disestablish each or any such organizations as such representative; (b) Offer to Einar Bredenberg immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority and other right', and privileges ; (c) Make whole Michael Annatone and Einar Bredenberg for any loss of pay they may have incurred by reason of the respondent's discrimination against them, in the manner set forth in the Section entitled "The remedy," above; (d) Post immediately in conspicuous places throughout its New Haven, Connecti- cut, plant, and maintain for a period of at least sixty (60) consecutive days, notice, to its employees stating : (1) that the respondent will not engage in the conduct from which it is recommended that it cease and desist in paragraphs 1 (a), (b), (c), (d), and (e) hereof , (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a), (b), and (c) hereof, and (3) that the respondent's employees are free to become and remain members of United Steelworkers of America (C 1 0 ) and that the respondent will not discriminate against any employee because of his membership in or activity on behalf of that organization , (e) Notify the Regional Director for the First Region in writing within ten (10) days from the date of the receipt of this Intermediate Report what steps the respond- ent has taken to comply therewith. It is further recommended that unless on or before ten (10) days from the date of the receipt of this Intermediate Report the respondent notifies said Regional Director in writing that it will comply with the foregoing recommendations, 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 Labor Relations Board, Series 3, as amended, effective November 26, 1943, any party or counsel for the Board may within fifteen (15) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of the said Rules and Regulations, file with the Board, Rochambeau Building, Washington, D C, an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relics upon, together with the original and four copies of a brief in support thereof Innme- diately upon the filing of such statement of exceptions and/or brief, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director As further provided in said Section 33, should any party desire permission to argue orally before the Board request therefor must be made in writing to the Board within ten (10) clays from the date of the Order transferring the case to the Board Dated September 11, 1944. JOSEr L Hii roex Trial Exainincr