Carl L. Norden, Inc.

In the Matter Of CARL L NORDEN, INC. and UNITED ELECTRICAL, RADIO MACHINE WORKERS OF AMERICA, C. I 0, LOCAL 475 Case No 2-C-5125.-Decided June 25, 1945 DECISION AND ORDER On January 13, 1945, the Trial Examiner issued his Intermediate Report in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices affecting commerce and that it had not engaged in certain other unfair labor practices, and recommending that it cease and desist from the unfair labor practices found and take certain affirmative action and that the complaint be dismissed as to the remaining allegations, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, counsel for the Board, the respondent, and the Union filed exceptions to the Intermediate Report and supporting briefs.' Pursuant to notice, a hearing for the purpose of oral argument was held before the Board in Washington, D C., on April 5, 1945, and the respondent and the Union participated therein. The Board has considered the rulings of the Trial Examiner at the hear- ing, and finds that no prejudicial error was committed The rulings are hereby affirmed.2 The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following modifications and additions. 1. The Trial Examiner found that by certain conduct and statements the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in the Act. We find that the conduct and statements which in their totality interfered with the employees' statutory 1 The Union 's brief consisted of a letter to the Board dated February 14, 1945 2 We find that the respondent 's Exhibit No 12 was inadvertently not received in evidence, and hereby order the said exhibit received We hereby approve and make part of the record the stipulation of the parties , dated October 18, 1944, and thereafter duly filed, providing that certain corrections be made in the transcript of testimony herein 62 N L R B., No. 106 828 CARL L. NORDEN, INC- 829 rights were those of Floor Supervisor DeFilippis to employee Carbone in August 1942, to employee Aronson in May 1943, to employee Pomerance in August 1942, and again about a month later, to a group of union em- ployees in his office on December 8, 1942, and to Carbone shortly there- after; the statements of Foreman Gottschalk to Pomerance in January 1943; the question and statement of Foreman Mecca to employee Haber- man in January 1943, the questions and statements of Foreman Nink to employee Christie in February 1943, and at frequent intervals thereafter; and the statement of Foreman Klein to Christie in February 1943. As thus clarified, we agree with the Trial Examiner, and find that the respondent thereby violated Section 8 (1) of the Act. 2. The Trial Examiner found that the respondent transferred Pomer- ance to a less agreeable position on March 26, 1943,' in reprisal for not heeding the warnings of Floor Supervisor DeFilippis and Foreman Gott- schalk to discontinue his union activities. We agree, and find that the respondent thereby violated Section 8 (1) and (3) of the Act. 3. The Trial Examiner found that the respondent withheld a wage in- crease recommended for Pomerance by his foreman, because Pomerance had caused unfair labor practice'charges to be filed with respect to his dis- criminatory transfer' We agree, and find that the respondent thereby vio- lated Section 8 (1) and (4) of the Act. 4. The Trial Examiner, relying on the principle announced by the Board and approved by the Circuit Court of Appeals for the Second Circuit in the C olumbla Products case," found that Floor Supervisor Holz was discrimina- torily motivated in ordering Pomerance to remove a union newspaper which Pomerance had posted during working hours on his own personal tool box near his bench , and that it was violative of the Act for the respondent to dis- charge Pomerance because of his refusal to obey this discriminatory order. The respondent excepts to these findings, principally on the ground that Holz's order was not discriminatorily motivated, but was issued in pur- suance of a company rule or policy then in effect, prohibiting employees from posting literature of any kind in the plant ° We find no merit in the respondent's exceptions The evidence shows that, at the time of Holz's order, newspaper and magazine clippings, calendars, pin-up girls, adver- tisements, photographs, and, according to Pomerance's credible testimony, 3 The Intermediate Report inadvertently misstates this date as March 26 , 1944. , 4 The Intermediate Report inadvertently misstates the dates of the charges The Board's records show that the original charge was filed on April 1, 1943, and the evidence herein reveals that amended charges were filed on April 14, and June 17, 1943, all containing unfair labor practice allegations with respect to Pomerance The evidence further shows that a new amended charge was filed on August 18, 1943 , omitting all such allegations s N L R B v Columbia Products Corporation, 141 F (2d) 687 (C C A 2) enf'g N L R B 1452 E As documentary proof of the rule or policy, the respondent introduced into evidence a notice to its foreman , dated March 27, 1943, about a year and a half before the discharge , requesting them to have "all newspaper clippings and pictures removed from the walls and posts, and even tool boxes " 830 DECISIONS OF -NATIONAL LABOR RELATIONS 130ARD "a lot of other things" unrelated to work, were allowed to remain attached to the employees' tool boxes. Like the Trial Examiner, we find that the alleged no-posting rule or policy was not in force at the time of the dis- charge,' and that Pomerance was not ordered to remove the paper because of any such rule or policy. It will be observed that Holz, in his conversations with Pomerance and also with Foreman Suwczinsky and Superintendent Shadlich, did not claim that his order to Pomerance was motivated by any- thing but a desire to enforce an alleged rule or policy prohibiting all postings by employees on tool boxes ; nor did the respondent assert in its brief or oral argument before the Board that the order to Pomerance was issued for any other reason .8 We recognize the right of an employer to regulate the conduct of his em- ployees by such written or oral rules or instructions as are reasonably neces- sary to safeguard production, to maintain proper plant discipline and order, or to preserve his own neutrality.' For such purposes the respondent could have properly ordered Pomerance to remove the union newspaper, even in the absence of any plant rule. On the other hand, we cannot permit an employer to effectuate an unlawful motive to interfere with the union activ- ities of his employees, under the guise of such a regulation or order.1° In view of the fact that, in ordering Pomerance to remove the union newspaper from his tool box, the respondent invoked a no-posting rule which it had customarily failed to enforce, that the respondent gave Pomerance no other reason for its order, made no mention of the contents of the paper or the cartoon therein, and made no claim that it might affect production or plant discipline, that, while Pomerance was told that he was discharged for fail- ing to comply with the order to remove the union paper, at the hearing before the Trial Examiner the respondent, as an afterthought, advanced 7 As pointed out by the Trial Examiner , it was only after the opening of the hearing that the respondent attempted to enforce a no-posting rule 8 Since Holz told Pomerance that the posting was merely a "slight infraction " of the alleged rule, gave no explanation to Pomerance when the latter demurred because other tool boxes were similarly decorated , and made no claim to anyone that his order to remove the union newspaper was motivated by either the allegedly objections] contents of the paper or a belief , however erroneous, that the con- tents would tend to prolong the commotion caused by the respondent's own announcement of a further reduction in working hours, we give no weight to the observation of the respondent 's counsel, in the brief and again in the oral argument before the Board, that the contents of the paper and a cartoon derogatory to the respondent were allegedly objectionable and probably prolonged the com- motion . Indeed, there is no evidence in the record that Holz was aware of the cartoon , which can only be deciphered at close view. ° See Matter of Peyton Packing Company, Inc , 49 N L R B 828, enf'd as modified , 142 F (2d) 1009 (C C. A 5), cert den 323 U S 730, 66, Mattel of Republic Aviation Corporation, 51 N L R B 1186, enf'd , 142 F (2d) 193 (C C A 2), aff'd, 65 S Ct. 98, Matter of LcTournean Company of Georgia, 54 N L R B 1253, set aside, 143 F (2d) 67 (C C A 5), iev'd 65 S Ct 982 10 See Matter of Columbia Products Corporation, 48 N L R B 1452, enf'd, 141 F (2d) 687 (C C A 2), Matter of Piedmont Shirt Company, 49 N L R B 313, 318, enf'd, 138 F (2d) 738 (C C A 4); Matter of The Ridge Tool Company, 58 N L. R B 1095 See also Matter of Peyton Packing Company, Inc, supra, Matter of Cartel Carburetor Corporation, 48 N L R B 354, enf'd, 140 F. (2d) (C C A 8); Matter of Denver Tent & Awning Company, 47 N. L R B. 586, enf'd, 138 F (2d) 410 (C C A 10). CARL L. NORDEN, INC. 831 additional grounds for the discharge, that Pomerance was the leader of the Union; that the respondent had sought to interfere with and restrain Pomerance's union activities on a number of prior occasions, had discrim- inated against him by transferring him to a less agreeable position and by withholding a wage increase, and was still opposed to his union activities as shown by Foreman Suwczinsky's statement to hint only the day before his discharge that he "talked too much" and "agitated the men", and further because of the anti-union animus evinced by the respondent on numerous other prior occasions, all as herein set forth, we are satisfied, as was the Trial Examiner, that the respondent's true motive for ordering Pomerance to remove the union newspaper from his tool box was a desire to interfere with, discourage, and restrain Pomerance's union activities and those of his fellow employees." On the entire record, we agree with the Trial Examiner that Holz's order to Pornerance was discriminatory, that the discharge of Pomerance for refusing to obey such an order was likewise discriminatory, and that the respondent thereby violated Section 8 (1) and (3) of the Act.'-' The Remedy l-lavnig found that the respondent discharged Pomerance in violation of the Act, we are of the opinion that Pomerance's prior conduct m posting the union newspaper on his tool box and in refusing to comply with Holz's discriminatory order to remove it, conduct which is not per se unlawful, does not warrant withholding our usual affirmative requirement of rein- statement with back pay to remedy the respondent's unlawful discharge. Accordingly. we shall order the respondent to offer Pomerance reinstate- ment and back pay "We consider the instant case to fall within the principle of the Columbia Products case, supra, although the discharge there was attributed to union activities engaged in outside of working hours In the Columbia Products case , the Court recognized that the employer could properly have made the order during the lunch period in order to stop the commotion or disturbance which the discharged employee was causing in the plant, or to prevent the confusion or impairment of pro- duction which the employer thought might result therefrom But the Court held that the order assumed a discriminatory character because it was actually made "in order to stop [the dis charged employee' s] electioneering for the union, " and not to "protect a recognized interest " See Matter of The Ridge Tool Company, 58 N L R B 1095, where the Board held that discbai ges for union activities violated the Act although such activities were engaged in during working houic, since the evidence showed that the employer's "real target was the Union, and not a desn e to prevent impairment of production " See also the Piedmont Shirt case, supra, where the Board found that the employer violated the Act in discharging employees in part for union activities engaged in during working hours , on the ground that the discharges were motivated , not by a desue to enforce a plant rule forbidding such conduct , but by a desire to discourage union menibei ship and to pre- vent'a successful organization of the plant i= The respondent also excepts to the finding of a discriminatory dischaige on the ground that the discharge was motivated in part by Pomerance 's alleged violations of other rules Like the Trial Examiner , we find it unnecessary to determine whether Pomerance engaged in such violations, since the evidence shows that , even if true, these violations were advanced as an afterthought and were not the cause of the discharge . Moreover, so long as one of the grounds for the discharge was dis- criminatory , it is immaterial that additional considerations may have lent weight to the respondent's decision to discharge Pomerance 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, Carl L. Norden, Inc., New York City, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in United Electrical, Radio & Machine `'Yorkers of America, C. I. 0., Local 475, or any other labor organization of its employees, by issuing any order to its employees for the purpose of interfering with their union activities, by transferring or discharging any of its employees, or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of their employment ; (b) Withholding a wage increase or otherwise discriminating against any employee because he has filed charges under the Act ; (c) 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 Electrical, Radio & Machine Work- ers of America, C. I. 0 , Local 475, or any other labor organization, to bar- gain collectively through representatives of their own choosing, and to en- gage 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) Offer Eric Poinerance immediate and full reinstatement to his for- mer or a substantially equivalent position, without prejudice to-his seniority or other rights and privileges, (b) Make whole Eric Pomerance 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 which he normally would have earned as wages during the period from the date of his discharge to the date of the respondent's offer of reinstatement, less his net earnings during such period (c) Post at its plants at New York City copies of the notice attached hereto, marked "Appendix A." Copies of said notice, to be furnished by the Regional Director of the Second Region, shall, after being duly signed by the respondent's representative, be posted by the respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material ; (d) Notify the Regional Director of the Second Region in writing, CARL L. NORDEN, INC. 833 within ten (10) clays from the date of this Order, what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the respondent kept under observation and surveillance the meeting places, meetings, and activities of the Union, be, and it hereby is, dismissed. "APPENDIX A" NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : We 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 Electrical, Radio & Ma- chine Workers of America, C. I. 0., Local 475 or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. We will offer to the employees named below immediate and full rein- statement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. Eric Pomerance All our employees are free to become or remain members of the above- named 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 membership in or activity on behalf of any such labor organization, or because he has filed charges under the Act. CARL L. NORDEN, INC. (Employer) By (Representative ) (Title) Dated NOTE.-Any of the above-named employees presently serving in the armed forces of the United States will be offered full reinstatement upon application in accordance with the Selective Service Act after discharge from the armed forces. This notice must remain posted for 60 clays from the date hereof, and must not be altered, defaced, or covered by any other material MR GERARD D. REILLY, dissenting in part: t 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I cannot agree with the opinion of my colleagues \\,hich holds that the discharge of Pomerance on August 11, 1944, was in violation of Section 8 (3) of the Act. It is conceded that Pomerance was insubordinate. During the morning of August 11 the respondent posted a notice that hours of work would be reduced in the immediate future. Since the result of such a cut-back would result in a reduction of wages, respondent's employees disapproved and engaged in some discussion relating to the advisability of a work stoppage Pomerance posted on his work bench a copy of the Union's paper which carried a headline predicting the cut-back and bearing a cartoon depicting Thomas Barth, respondent's president, operating a vise the maws of which held a worker from whose body the blood was being squeezed by the pres- sure of the tightening vise. Some of the employees discussed the cut-back with Pomerance and noted the union paper posted on the work bench. About 4 hours after the union paper had been posted, Floor Supervisor I-Iolz observed the paper and advised Foreman Suwczinsky of its presence. Suwczinsky requested Pomerance to remove the paper. Pomerance then removed the paper from the work bench but immediately attached the paper to his tool box which was placed on the work bench. Upon being advised of this event, Holz told Suwczinsky "Get that thing off there. I don't want it on the tool box or any place else 'in the shop." While Suwczinsky was delivering this message to Pomerance, Holz telephoned his superior, Super- intendent Schaedlich, and received authority to discharge Pornerance if the latter refused to remove the paper Suwczinsky returned to Holz's office and reported that Pomerance had refused to remove the paper from his tool box. Holz then called Pomerance into his office and again requested that Pomerance remove the paper, stating that it was "against the company principle or policies to display any kind of literature or what you may have." Holz also told Pomerance that the display of the paper was "only a slight infraction" and that Pomerance should remove it. Pomerance re- fused to comply with the request Holz then discharged Pomerance. There can be no doubt, in view of the nature of the paper which Pomer- ance posted, that respondent had the right to order Pomerance to remove it. Having that right, it follows that respondent could enforce its order by the only means at its disposal. As indicated by the majority opinion, an employer cannot justify an act motivated by a desire to encourage or discourage membership in a labor organization by a 'showing that a non-discriminatory motive would have effectuated the same result. However, the converse of the rule is equally compelling. Thus, in the instant case, the clear evidence is to the effect that Pomerance's discharge was motivated by respondent's obvious motive of maintaining discipline in the plant The fact that a motive of respondent to discriminate against Pomerance could also have resulted in his dis- CARL L. NORDI+.N, INC. 83 charge, plus a suspicion predicated upon respondent's motives as evidenced by its prior discriminatory acts, does not constitute sufficient evidence upon which the Board may find the discharge to have been discriminatory. The law of the case as stated by the majority injects considerable con- fusion into the issue It recognizes respondent's right to order the removal of the paper in question, even in the absence of any rule specifically prohibit- ing its display. Since the paper was a union publication, and since respond- ent was aware of this fact, the implication is that this was a sort of union activity with which respondent could properly interfere.'3 However, the majority wotUd apparently afford this privilege only to employers who had not theretofore been guilty of discrimination, since, as here, where an exer- cise of the privilege leads to insubordination and subsequent discharge, the majority would find the latter event to be an unfair labor practice Since the evidence indicates that the discharge was not discriminatory, and the finding to the contrary appears to be supported only by a bare suspicion or inference, I would dismiss the 8 (3) allegation in the complaint as to the discharge of Pomerance. INTERMEDIATE REPORT :Messrs Alan F Perl and Leon Novak, for the Board Messrs. Samuel M. Chapin and Ralph H Wiener, of New York, N. Y, for the respondent. Messrs Frank Schemer and Pere. Zagorin, and Miss Mildred Roth, of New York, N. Y., for the Union STATEMENT OF THE CASE Upon an amended charge duly filed by United Electrical, Radio & Machine Workers of America, C I 0., Local 475, herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Second Region (New York, N. Y.), issued its amended complaint dated August 31, 1944, against Carl L Norden, Inc., herein called the respondent, alleging that the respondent had en- gaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (3), and (4) and Section 2 (6) and (7) of the National Labor Relations Act, 49 S`tat. 449, herein called the Act. Copies of the amended complaint and amended charge, accompanied by notice of hearing, were duly served upon, among others, the respondent and the Union. With respect to the unfair labor practices the complaint, as amended, alleged in substance that : ( 1) the respondent, on or about March 25, 1943, assigned employee Eric Pomerance to more arduous and less agreeable work than that which he had previously performed and, on or about August 11, 1944, discharged the said Eric Pomerance and has since failed and refused to reinstate him because of his union membership and activities; (2) the respondent from on or about May 22, 1943, to on or about August 16, 1943, failed to grant wage increases to said Eric Pomerance because he caused charges against the respondent to be filed with the Board and be- cause of his union membership and activities; and (3) the respondent from on or about July 1942 to the date of issuance of the amended complaint vilified, disparaged, and expressed disapproval of the Union; interrogated its employees concerning their 11 In view of the nat ui e of the can toon on the paper, T agree 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union affiliations; urged, persuaded, and warned its employees to refrain from assist- ing, becoming or remaining members of the Union; and kept under observation and surveillance the meeting places, meetings, and activities of the Union The respondent's answer dated September 8, 1944, denied the commission of any unfair labor practices and denied that the Board had jurisdiction Further, the re- spondent averred in the nature of affirmative defenses on the merits that : (1) Pomerance was transferred on or about March 25, 1943, from one department to an- other because, despite numerous warnings, he had continuously engaged in union activities during working hours, antagonizing many of his fellow employees by calling them vile and opprobrious names, (2) Pomerance was not transferred to more arduous or difficult work than that which he had previously performed; (3) Pomerance was discharged on August 11, 1944, because, despite repeated warnings, be had engaged in union activities on the respondent's premises during working time in violation of the respondent's rules of which rules Pomerance had full knowledge, posted union leaflets and bulletins on his lamp and on his tool box at his bench on August 11, 1944, thereby causing commotion and interfering with production, and that Pomerance refused several requests to remove these leaflets and further refused to desist from engaging in union activities during working time. Pursuant to the aforesaid notice a hearing was held in New York City, on various days between September 21 and October 12, 1944, inclusive, before William J. Isaacson, the undersigned Trial Examiner duly designated by the Chief Trial Exam- iner. The Board and the respondent, represented by counsel, and the Union by coun- sel and a representative, participated in the hearing and were afforded full oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. At the conclusion of the Board's case and at the conclusion of the hearing the respondent's counsel moved to dismiss the entire complaint. At the conclusion of the hearing ruling on this motion was reserved. The motion is disposed of as hereinafter indicated. All parties were afforded an opportunity to argue orally on the record before the undersigned and counsel for the Board and the respondent and the Union representative participated in such argument. None of the parties availed themselves of the opportunity to file briefs on the merits with the undersigned' Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following. FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT- The respondent, a New York corporation with its principal office and place of business in New York City, is engaged in the manufacture, sale, and delivery of bombsights and related products. The plant and nearly all of its equipment are owned by the Government. All of the raw materials are the property of the United States Navy and are purchased and shipped on its order to the aforesaid plant. The re- spondent, however, supervises the Navy's purchase of these materials. During the year 1943, the respondent used in its above-described operations raw materials con- sisting principally of metals including copper, steel and aluminum, valued in excess of $1,000,000, approximately 50 percent of which was shipped to its New York plant from 'points outside the State. During this same period, all of the products manu- factured by the respondent at its New York plant, having a value in excess of $1,000,- 000, were manufactured under contracts with the Navy, 99 percent of which was 1 Counsel for the respondent filed a memorandum in support of the respondent's contention that it is not engaged in commerce within the meaning of the National Labor Relations Act 2 These findings of fact are based upon stipulations in the record between the Board's counsel and the respondent' s counsel. CARL L. NORDEN, INC. 837 cost-plus-fixed-fee contracts, the remaining 1 percent being lump-sum contracts. The finished products are delivered to the Navy at the plant, which thereupon ships them to points throughout the world. The respondent has exclusive supervision, including authority to hire and discharge, of all labor required in the performance of the foregoing operations' The respondent contended in its answer and during the hearing that it was not engaged in interstate commerce within the meaning of the National Labor Relations Act. The respondent urged that the manufacture, distribution, delivery and transport of the above raw materials and finished products are the administrative acts of the Federal Government since "the materials and products manufactured by it and the facilities utilized by it are at all times the sole and exclusive property of the United States Government." This contention is without merit. Industrial strife at the re- spondent's New York plant would interrupt the flow of commodities to and from the plant, and so directly affect commerce within the meaning of the Act. Whether the shipments to the plant were made directly to the respondent or to a representative of the Navy is immaterial . Nor is it material whether the respondent transported the finished products or whether the Navy took title to the products at the plant and transported them. "It was not any the less interstate commerce because the transpor- tation did not begin or end with the transfer of title of the merchand,se transported" N. L. R B. v Fancblatt 306 U. S. 601, 605. The fact that the materials moving to and from the plant, as well as the plant itself, are owned by the Federal Government, does not deprive the Board of jurisdiction. The constitutional concept of interstate com- merce encompasses the transportation of materials and products across State lilies by whomever conducted; there is nothing in the legislative history of the Act which in- dicates a congressional purpose to narrow the statutory meaning of the term "com- merce" so as to exclude manufacturers of goods for the Federal Government, even when the Government ships the goods.' The respondent's apparent contention that the Government must be presumed not to have intended to regulate its own operations is beside the point; cost-plus-fixed-fee contractors are not agents or instrumentalities of the Government and do not share the Federal Government's sovereign immunities Penn Dairies v Pennsylvania Milk Control Comm, 318 U S 262; Alabama v. King & Boozer, 314 U S. 1, Curry v. United States, 314 U S' 14. II THE ORGANIZATION INVOLVED United Electrical, Radio & Machine Workers of America, Local 475, affiliated with the Congress of Industrial Organizations, is a labor organization admitting to membership employees of the respondent. III THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion 1. Anti-union statements and conduct During the summer of 1942 the Union resumed its organizational campaign among the respondent's employees. The Union's adherents among the respondent's employ- 5 The respondent occasionally transports materials in Government -owned trucks from its New York plant to one of its subsidiary corporations, Lukas-Harold Corporation, located in Indianapolis, Indiana, and, in the same fashion, transports materials from Indianapolis, Indiana, to its New York plant. All of the aforesaid trucks are operated by the respondent's employees * Matter of Copolmeyer Corporation, 52 N L R B 578; Matter of War hemp Industries, Inc , 57 N L R B 1709 [15 L R. R 37], Matter of Lukas-Harold Corp, 44 N L R B 730 See, also, the following cases interpreting the term "commerce " as used in the Fair Labor Standards Act Timberlake v Day & Zimmerman , 49 Fed Supp 28 (D C S D Iowa), Umthun v Dal & Zimmerman, decided November 14, 1944 (Supreme Court of Iowa), reversing the Des Moines County District Court decision, cited by the respondent in support of its position, Clyde v Brod- erick, 144 F (2d) 348 (C C A 10) 838 DECIS I ONS OF NATION AL LABOR RELATIONS BOARD ees, under the leadership of employee Eric Pomerance5, solicited the respondent's employees to join the Un.on, printed and distributed leaflets and the union neissspaper, the Foresight, and held several employee mass meet-rigs On February 26, 1943, the Union filed a petition with the Board's Regional Office in New York City requesting that the Board conduct an investigation and certify the Union as the exclusive bargaining representative of She respondent's employees within a unit specified to be appropriate On March 24, 1943, pursuant to an agreement between the Union and the respondent, an election was conducted among the respondent's employees by the Regional Office to determine whether or not the employees within the unit agreed upon desired representation by the Union The results of the election were as follows 725 voting for and 1,007 against the Union. The Regional Director of the Second Region, finding interference by the respondent with the conduct of the election, set aside the election (Mattes of Carl L Norden. Inc., 2-R-3838) The Union's defeat in the aforesaid election did not signalize the cessation of the Union's activities. Since that time, the Union, using the methods hereinabove described, has continued its attempts to organize the respondent 's employees. The respondent, however, both before and after the above election has sought in various ways to counter the Union's drive The leading role in the respondent's anti- union campaign was taken by Joseph P DeFilippis, supervisor of the 6th floor" DeFilippis, while interviewing Peter Carbone, a 6th floor employee at the time he was hired in August 1942, told him that some "radicals" in the plant were attempting to install a union, but that a union was "unnecessary" at the respondent's plant since "everybody got what they wanted" Similarly, while interviewing Harold Aronson, another 6th floor employee at the time he was hired in May 1943, DeFilipp s advised him, "There is an element in the plant that is trying to organize a union, but before you listen to them, I suggest you speak to some of the old timers here and see how well the company treats its men." The undersigned credits the undisputed and credible testimony of Carbone and Aronson. Nor did DeFilippis restrict his anti-union activities to conversations with appli- cants for hire According to Pomerance, in August 1942, soon after he became a member of the Union and began actively to engage in union activities, DeFilippis summoned him to his office and informed him that he was "surprised" to learn that he was active in behalf of the Union DeFilippis pointed out that although he too had once been a union member "he [had] found that while he was with [the respond- ent], there was absolutely no need to have a union, because the [respondent] was so fair." Pointing to a sheaf of papers which, he claimed, were recommendations for wage increases he had submitted to the respondent's management, but which had been rejected, lie declared that insofar as the employees under his supervision were concerned he himself, "[ought" and "looked out" for their interests Pomerance pointed out that DeFilippis' failure to secure the recommended wage increases high- lighted the necessity for a union organization among the respondent's employees DeFilippis reiterated that the respondent was fair to its employees, recognizing and rewarding merit. Pomerance, however, refusing to concede that there was no need for a union, declared, "you and I are not in the same position a discussion between you and me as to the relative merits of unionism would be fruitless " De- Filippis thereupon phophesied that Pomerance "would find out that the company s'The respondent's transfer of Pomeiance, withholding of a wage increase from hint, and his discharge are hereinafter discussed. 6 The 6th floor contained 6 departments aggieganng several hundred employees Each department was under the supervision of a foreman, and the fmcmen iu ruin wcii iospeii ihk to the fins, supervisor. CARL L. NORDEN, INC. 839 would not stand for a union in the shop, and [he] would be sorry for [his] association with it." About a month later, DeFilippis again called Pomerance into his office and informed him that he understood that he was "still quite active with the union," a fact he was unable to understand since Pomerance had an "excellent" rating and was a "nice fellow." He thereupon sought to extract a pledge from Pomerance that he would discontinue his union activities. Pomerance refused to give him such assurance. During this conversation, DeFilippis warned Pomerance that the respond- net "would not stand for this [union] activity during the lunch period in the plant" John Pizzoli, DeFilippis' assistant, who was present during each of these conversa- tions, testified that DeFilippis, on each occasion upon receipt of a complaint from Max Gottschalk,' Pomerance's foreman at the time, had instructed Pizzoli to call Pomerance into the office. He further testified that on both occasions DeFilippis, advising Pomerance that he had been the subject of a complaint by Foreman Gott- schalk, reprimanded and warned him to discontinue the activities concerning which he had received complaints . He denied that DeFilippis had made any reference to the Union or union activities in either conversation. DeFilippis was not called upon by the respondent to testify! Upon the undersigned's observation of Pizzoli and an examination of his testimony hereinabove set forth,' coupled with the fact that Gottschalk's testimony is in part contradictory thereto, the undersigned rejects Pizzoli's testimony and finds that the conversations occurred as Pomerance related. Significantly, the respondent failed to call upon DeFilippis to testify, although available, and the statements attributed to him by Pomerance are similar to undenied statements made by him to other employees On December 8, 1942, DeFilippis summoned six of the Union's outstanding em- ployee proponents, four' of whom were union stewards, to his office. According to witnesses Carbone and Pomerance, after the six employees had assembled in the office, DeFilippis submitted to them a single sheet of paper containing a typewritten ' Gottschalk, although testifying at length concerning Pomerance 's performance of his duties, did not state that he had complained either to Pizzoli or DeFilippis during the period hereinbabove in issue. Pomerance who testified prior to either Gottschalk or Pizzoli , denied upon cross-examination that DeFilippis had made any reference to complaints by Gottschalk 8 Mr. Wiener, the respondent's counsel, stated on October 11, near the close of the hearing, that DeFilippis, who was succeeded as supervisor of the 6th floor in May 1943 by William Holz, was unavailable to testify. He stated that he had been informed that DeFilippis was engaged in war work, the nature of which could not be disclosed for reasons of military security , but which required his presence at the respondent's various subsidiary plants He further stated that DeFilippis was currently working at the respondent 's Indianapolis plant, where he had been stationed for a period of a month and a half. This statement does not accord with the testimony of recor1l or the prior statements of the respondent's counsel, Mr. Chapin and Mr. Weiner himself. On October 3, after the signature of DeFilippis upon Board Exhibit 3 was put in issue, Mr. Wiener declared, "I have ascertained that Mr. DeFilippis is in doubt that that is his signature , and in verification of that, lie showed me various papers containbng his signature as he had signed the same during that year" (italics supplied) On September 22, the second day of the instant hearing, Mr. Chapin stated that DeFilippis would be called by the respondent to testify. In fact, the respondent requested and se- cured a deferment of its cross -examination of Pomerance in order to afford it an opportunity to interview the various supervisory employees whom Pomerance had mentioned in his direct examina- tion, one of whom was DeFilippis . Arthur Howe, the respondent's personnel manager, testified on October 6, in response to an inquiry as to whether DeFilippis was then working at the respond- ent's plant, "I have not seen him for a few days , I don't know where he is, but I assume he is working." It is undisputed that DeFilippis was still on the respondent 's pay roll at the time of the hearing. The undersigned finds that DeFilippis was available to testify in behalf of the respondent e Pizzoli, in response to a question by the respondent's counsel as to whether he had testified fo everything that DeFilippis had said, admitted, "It is hard to remember. Don't forget that that hap pened some time ago." $40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD statement of what purportedly was his employee policy 10 After the employees had read the statement it was returned to DeFilippis, DeFilippis refusing to allow Pomerance to retain it. Pomerance, acting as the employees' spokesman, declared that although the first five paragraphs were "debatable" it was futile to discuss them, but that the sixth paragraph restricting the use which the employees could make of the rest periods was beyond the respondent's sphere of control and legiti- mate interest in production. DeFilippis replied that since the respondent compensated the employees for the rest periods it was empowered to control their activities during those periods. He added that "the office downstairs tell[s] me I am within my right (sic) to fire you fellows if you go out during rest periods and talk about the union " Pomerance suggested that they immediately discuss the matter with the respondent's officials and, in addition, secure the opinion of an appropriate Government official He also cautioned DeFilippis that, as chief steward, he would request all of the employees in attendance to make written statements as to what occurred during the meeting. DeFilippis, assuring Pomerance that the meeting was merely a "personal matter" between him and the employees present, declared, "Well, anyway, I really got you guys in here to see what I could do for you" In reply to an inquiry of employee Del Favoro, one of the employees in attendance, as to whether he, De- Filippis, was "anti-union," he stated that the respondent did not want a union and "I am against the union." Pizzoli, whose testimony in large part corroborates that of Pomerance and Carbone, added, however, that DeFilippis instructed him to assemble the six employees above referred to because DeFilippis had said that he had received complaints that these particular employees had participated in employee meetings which began during the rest periods and continued during working time.'1 He further testified that DeFilippis advised the employees, "I have received complaints about fellows carrying on meet- ings. I think as long as the company," which he described as a "good company," "is paying for it, that you should use that time for relaxation." In response to several leading questions by counsel for the respondent he also testified that DeFilippis had said that discussions begun during the rest periods extended into "regular working time" and "caused arguments" which interfered with production 12 He denied that 10 The paper reads as follows- December 8, 1942 1 Favor only those conscientious workers who merit it by working for it 2. Stand behind Mr. Barth's policy of always trying to please the men 3. Always trying to please the men by advancing them to different jobs to break the monotony and also to pick those well deserving of promotion 4. If they deserve more money when they are transferred they do receive an increase but of course some misinterpret this and expect the same pay as a skilled mechanic 5. 1 want it understood that I always stand for a square deal to workers and will always see that all grievances are adjusted. I definitely know that we still work for a square concern, that stands for a square deal, as I grew up in it 6. I will tolerate no taking up of the Company's time even during the ten minute rest periods This period should be used to relax from the strain of work. /s/ Joseph P Denilippis In October 1942, the respondent had provided for two 10-minute rest periods, one in the morning and one in the afternoon. u Pizzoli, who testified that he, himself, had received complaints concerning 5 of the employees in attendance at the above meeting, failed to specify when he had received these asserted complaints. He admittedly received no complaints concerning Bigliano, one of the aforesaid employees, whom he char- acterized as a "good worker." He was unable to explain Bigliano's presence at the meeting other than to say that DeFilippis requested that he be present. It should be noted in this connection that Bigliano was a union steward Samuelson, Caibone's foreman at the time, could not recall making any complaint respecting Carbone prior to December 8. 11 Both 'Carbone and Pomerance denied on cross-examination that DeFilippis had said that the meeting was called in order to dissuade them from engaging in union activities during working time. CARL L. NORDEN, INC. 841 DeFilippis had made any reference to unions or his attitude towards unions, or that he had said that the meeting was only a "personal matter" between him and the assembled employees. Upon the undersigned's observation of Pizzoli's demeanor and upon examination of his testimony, noting his admifted inability to recall the entire discussion of December 8, 1942, and specifically, his inability to state whether certain matters were or were not discussed, coupled with the respondent's failure to adduce any testimony supporting Pizzoli's assertion that the employees selected to attend the meeting had been the subjects of prior complaint, 13 and the character of the state- ments which Pizzoli admitted DeFilippis to have made, the undersigned rejects Pizzoli's version of the above meeting insofar as it differs from that of Carbone and Pomerance 14 Shortly after the December 8 meeting DeFilippis approached Carbone at his bench and referred to an issue of Foresight containing an article concerning himself. DeFilippis declared, "I think these fellows are going too far." "I was for unions until I found out the company did not want one here, and now I am no longer for unions." This credible testimony stands undenied in the record. Emulating Supervisor DeFilippis' conduct, Gottschalk, Oscar Nink, Mecca, and Curt Klein, all of whom were foremen," engaged in similar activities In January 1943, Gottschalk approached Pomerance at his bench and told him that he too had been a union member. He stated that he had belonged to the "American Federation of Labor Machinists Union" and, after becoming "disgusted" with that organization, had joined the C. I. 0., which was now "a shadow of itself." He predicted, "when the war is over all these fellows will be out of work. They will be running around with their tails between their legs. There will be no more organization, so what is the use? I have had more experience with this thing than you." Pomerance indicated that nevertheless he would continue his union activities. Likewise, according to the undisputed testimony of Pomerance which the under- signed credits, early in January 1943, one Haberman, an employee on the 6th floor, lodged a grievance with Pomerance in his capacity as steward, against Foreman Mecca Haberman complained that Mecca, his foreman, had inquired of him whether he was a member of the Union and, upon his affirmative reply, warned that the respondent would consequently jeopardize his draft deferment. Thereupon, Pomer- ance, Lappin, the other steward on the 6th floor, and Haberman complained to DeFilippis and Pizzoli. DeFilippis, asserting that he disbelieved Haberman's state- ment, called Mecca into the office. Mecca, however, admitting the conversation, explained that he had meant it only as "friendly advice." Thereupon, DeFilippis dis- missed the incident, referring to Mecca as a "nobody anyway." Pomerance warned that the Union would take measures to prevent such intimidatory practices on the part of the respondent's supervisory staff, pointing out that such activities constituted violations of the Selective Service Act. Thereafter, Personnel Officer Hack, accord- ing to Pomerance, assured Haberman that the respondent would not take cognizance of his union membership in its dealings with the "draft board." Pizzoli, corroborating Pomerance's account of the above meeting, added that Mecca had said "I was only 18 As noted , insofar as the record discloses , it appears that the contrary was the fact 14 According to Pizzoli and Gottschalk , shortly after this Gottschalk asked DeFilippis for a ruling as to what the employees were permitted to do during the rest periods They further testified that DeFilippis secured a ruling from Personnel Officer Hack that the employees were free to use their rest periods as they deemed fit Pizzoli testified that he so advised Pomerance and the foreman on the 6th floor Pomerance denied that Pizzoli had so advised him The undersigned finds it unnecessary to the issues of the instant case to resolve the conflict. 15 Curt Klein was a foi eman on the 4th floor. 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD kidding," and DeFilippis had replied that he had no right to make such a statement Pizzoli further testified that after the employees left the office DeFilippis severely reprimanded Mecca. In February 1943, Foreman Oscar Nink approached Karen Christie, an employee in his department, and asked her whether she had been discussing the Union -'with one of her fellow employees Miss Christie replied in the negative He thereupon inquired of her whether she had attended a union meeting the previous night. Upon her affirmative reply, he inquired as to the number of persons in attendance Christie estimated that approximately between 200 and 300 people were at the meeting She added that, prior to going to the meeting, she was unaware that it was a union meeting. Nink replied, "Well, that was a union meeting, the union are (sic) try'lig to get in here, and they are no good." He continued, "in Germany, it is different, but over here it is just a racket." At this juncture, Foreman Curt Klein, joining then- conversation, declared, "The union will never get in here." Nink added, "Three years ago they tried to get in, and they did not get in. We did have the union in here, but it did not work out" At frequent intervals thereafter Nink repeatedly questioned Christie as to whether she attended union meetings This testimony, which the under- signed credits, stands undenied in the record. The foregoing review of the evidence convinces the undersigned and the under- signed so finds that the respondent by its anti-union conduct and statements herein- above set forth interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed them under Section 7 of the Act. The statements of the respondent's supervisory employees hereinabove set forth are clearly not expressions of opinion as the Second Circuit Court of Appeals held the statements involved in N L R. B v American Tube Bending Co, 134 F (2d) 992, 995, to be On the con- trary, these statements containing threats of reprisals against those employees who continued to adhere to the Union, viewed against a background of employer hostility to the Union and its proponents, including the repeated acts of discrimination directed against Pomerance, were not merely an expression of a point of view, but obviously constituted "pressure exerted vocally " N L R B v Virginia Electric & Power Co , 319 U. S 53316 2. Other acts of alleged interference , restraint, and coercion The Board alleged in its amended complaint that from on or about July 1942 to the date of the issuance of the amended complaint the respondent' had engaged in surveillance of the Union's meetings, meeting places and activities. In support of this allegation counsel for the Board adduced the testimony of one S4dney Silvers, who had been employed by the respondent as a guard from September 16, 1942, to August 4, 1944, on which latter date he had been discharged. In summary , Silvers testified that in August 1943, the sergeant of the respondent 's guards, William McCarthy, advised him that the captain of the guards , William Goss , was desirous of obtaining information concerning union membership in the guard force, particularly the "ring- leaders" of the current organizational drive, since the respondent wished to "break tip" the campaign He thereupon instructed Matthew Harbeson , a guard, to secure the requested information and pursuant to these instructions , Harbeson subsequently submitted to Silvers a written report containing such information which Silvers, in turn, submitted to Sergeant McCarthy and Bertram Wray, an assistant to Goss 16 The respondent is plainly answerable for the activities of its floor superintendent and foreman, all of whom had general powers of supervision and obviously had supervisory status upon which may be predicated employer liability International Ass'n of Machinists v .N L R B , 311 U S 72, 79-80, H J Heinz Co v N L R B, 311 U S 514, 520-521 CARL L. NORDEN, INC. 843 McCarthy and Wray placed the report in a folder for transmission to Captain Goss Subsequently, Sergeant McCarthy informed him that the respondent was gratified with the. information contained in Harbeson's report. A few days later, Harbeson, upon Silvers' instructions, joined the Union in order to secure further information concerning its activities and the identity of the guards who had joined Silvers also testified that in the early part of 1944, Sergeant McCarthy, in Wray's presence, asked Silvers to secure information concerning the Union's act vities at the respondent's Varick Street plant. He was unsuccessful in his attempt to secure the desired information He stated that he had iequested one Peterson, an employee in the Varick Street plant, to act as an informant, but that Peterson, although assuring him that he would do so, failed to carry out these instructions. Finally, Silvers testified that on August 18, 1944, 2 weeks after his discharge, he had occasion to be in the respondent's office for guards when he overheard a telephone conversation between Captain Goss's secretary, Charles Himer, and, as he gathered from Himer's conversation, Arthur Howe, personnel manager. He stated that he overheard Himer say, "Yes, Mr. Howe. You want two men sent over to the Esplanade Street meet- ing? I will send them over immediately." The Board adduced no testimony or evidence corroborative of Silver's testimony. Upon an analysis of Silver's shifting and evasive testimony on cross-examination and the testimony of the respondent' s witnesses, Goss and Himer, the undersigned finds that Silvers could not and did not overhear such a conversation. With respect to the remainder of Silver's testimony witnesses Goss and Harbeson categorically denied that they had engaged in surveillance of union activities The undersigned finds that Silvers, who was discharged by Goss under circumstances which he, Silvers, deemed unfair, bore malice towards the respondent and Goss, and was motivated in testifying by a desire to retaliate against both the respondent and Goss. Furthermore, Silvers,, who had been paid $200 by counsel for the Union in order to testify at the hearing in the instant case had,. immediately before testifying, attempted, witliout success to secure $300 from Goss not to appear or testify at this hearing17 Accord- ingly, his testimony must be subjected to careful scrutiny. The undersigned, upon his observation of Silvers' demeanor and an examination of his testimony, displaying an inability to recall with any degree of definiteness the events to which he testified tT Counsel for the respondent intimated in his argument before the undersigned at the close of the hearing that the Union had paid Silvers in order that he testify falsely in the uiot.rnt case There is no record support for this suggestion The Union's attoiney, Frank Schemer, whose testimony the undersigned credos, testified that he spoke with Silvers for the first time on August 28, 1944 On that date Silvers telephoned Schemer and, after first introducing himself, advised Schemer that he had given the Board his sworn statement relative to his espionage activities at the respondent's plant He continued that he had been discharged by the respondent in the early part of that month and con- sequently was in dire need of a job. He requested that the Union aid him in seeming a lob Schemer agreed to meet with Silvers on August 30 Schemer thereupon ascertained from Leon Novak, Board's counsel in the instant case, that Silvers had in fact given the Board a sworn statement concerning his espionage activities in the respondent 's plant In a meeting with Schemer at Ins offices on August 30 Silvers declared that his discharge by the respondent had been discriminatory He thereupon asked Schemer to secure a job for him or, in the alternative, to "sustain" him for the period dating from the discharge on August 4, 1944, until he testified in the instant case Thereupon. Scheinei first attempted to secure a job for Silvers at a certain plant on Long Island Silvers was not hired at this plant, however. Schemer thereupon secured permission from the Union to pay Silvers $200, an amount of money approximately equivalent to that which he would have earned had lie remained in the respondent's employ for the period beginning on August 23, 1944, the date lie submitted a shorn statement to the Board's counsel , to about,September 21, the date the hearing was scheduled to and did commence Accordingly, on both September 8 and 20, Schemer gave Silvers a check in the amount of $100 As the respondent's counsel admits and as the evidence demonsti atcs, none of the above facts con- cerning the payment of monies by the Union to Silvers were known to counsel for the Board until after Silvers had testified on direct- examination 844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and which testimony is fraught with self-contradictions and evasive answers, cannot credit any portion of his testimony. Accordingly, since counsel for the Board adduced no other evidence in support of the allegation that the respondent engaged in sur, veillance of the Union's meetings, meeting places and activities, the undersigned finds this allegation to be without record support and hereinafter recommends that said allegation be dismissed. B. The discrimination against Eric Pomerance 1. The transfer of Pomerance On the morning of March 26, 1944, 2 days after the election hereinabove referred to and following the afore-mentioned anti-union activities, the respondent transferred Pomerance from Department 316 to Department 317. Foreman Gottschalk instructed Pomerance that the transfer was to take effect immediately. He admittedly did not specify any reason for the transfer, nor did Bruno Suwczinsky, foreman of Depart- ment 317, advance any reason to Pomerance. Pomerance was first employed by the respondent as an apprentice-assembler in Department 313 at an hourly wage of 55 cents. Thereafter, in August 1942, after having received two wage increases in the intervening period, he was promoted to the position of 2nd class assembler in Department 316 under the supervision of Foreman Gottschalk at an hourly wage rate of 75 cents. In January 1943 Pomerance again received a merit wage increase of 5 cents an hour, making his rate of pay 80 cents per hour, which rate he was receiving at the time of his transfer 18 That Pomerance's work was considered "excellent" is further evidenced by Floor Super- visor DeFilippis' statement that the foreman's reports so indicated. Pomerance, as found above, was the foremost union advocate in the respondent's employ. Upon joining the Union in July 1942, he soon became the Union's chief steward, chairman of its elections and organization committees, and editor of the Foresight In these several capacities Pomerance contributed articles to and distrib- uted the Foresight at the plant entrances,19 solicited union memberships, and directed the activities of the other union stewards. In addition, he attended several confer- ences at the Board's offices at which the respondent's representatives were also present in order, among other th.ngs, to arrange the details of the above-mentioned election That his advocacy of and activities in behalf of the Union were known to the respondent is not only evidenced by the above recital of facts but by reason of the undisputed fact that he at all times wore his steward's button as well as his membership button. In any event, that the respondent was aware of his leading role in the Union is established by the many attempts of the supervisory employees to convince him to withdraw from the Union and discontinue his union activities. The Board alleged in its amended complaint that the task to which Pomerance was assigned in Department 317, a "lapping" operation, was more "arduous" and "less agreeable" than that which he had previously performed in Department 316 Pomerance's task in Department 316 had been, according to Foreman Gottschalk, the "intricate fitting" of a small gear about % inch in diameter and is of an inch in height onto the shaft of a thread spindle, an operation allowing for a tolerance of but three ten-thousands of an inch. He further testified that this job required expe- rience, skill, and concentration All of the respondent's witnesses, as well as Pom- erance, testified to the same affect concerning the foregoing operation. The lapping operation consisted of polishing the surface of a disk I Y8 inches in rs Pomerance's rate of pay remained the same in Department 317. 29 On several occasions Pomerance , while engaged in distributing the Foresight, upon request gave several copies to one of the respondent's guards CARL L. NORDEN, INC. 845 diameter, and % of an inch in thickness to eliminate flaws The operator, holding the disc by a shaft attached to the disc's center, was required to rub the disc con- tinuously upon a "scored" iron plate powdered with aluminum oxide and moistened with benzol2° It was the consensus of the respondent's supervisory employees, as well as Pomerance, that the lapping operation was primarily a "manual" operation requir- ing less skill and concentration than did the fitting operation. Pomerance further testified that the employees in Department 317 were "shy" of lapping. Specifically, he stated that one, Cypra, had told him that he regarded the job as "particularly onerous" and that employee Lothrop Wells informed him that Sherman, Pomerance's bench leader in Department 317, had told Wells that "he felt sorry for [Pomerance) because he had to keep [him) on that job day after day." Sherman, although testifying at length, did not deny that he had made this statement. Sherman, however, as well as Foremen Gottschalk and Suwczinsky, testified that they had heard nothing which would lead them to believe that the employees considered the lapping operation undesirable. But Pomerance testified without contradiction that he was the only employee who had been confined exclusively to lapping, and that when he was sub- sequently assigned to a different operation' the employees who replaced him in lapping were required to lap less than 50 percent of their time Upon the foregoing evidence the undersigned finds that the respondent, disregarding Pomerance's train- ing and experience, transferred him to a task which it was aware he would consider less agreeable than his former employment. As previously set forth, the respondent advanced no explanation to Pomerance at the time of his transfer. Two weeks later, on April 8, when Pomerance protested to DeFilippis that the transfer "to this onerous job" was discriminatory and requested that he be reinstated to his previous job, DeFilippis, according to Pomerance's undisputed and credible testimony, assured him that the "transfer was only a routine requirement of production." Likewise, Personnel Officer Hack, upon being advised by the Board that the Union had filed a charge asserting, among other things, that Pomerance's transfer was discriminatory, advised the Board by letter dated May 25, 1943, that "Mr. Pomerance's transfer of job was purely routine and entirely unrelated to any union activity in which he may engage. Transfers, including the one in question, are made by us on innumerable occasions as the efficient operation of our plant requires." According to Pomerance, about May or June 1943, Foreman Suwc- zinsky, to whom he had spoken concerning a wage increase, advanced a different reason for the transfer. Suwczinsky declared that Pomerance had been transferred because of his incompetence. Finally, in its amended answer filed a year and a half after the transfer, the respondent advanced still a third ground for Pomerance's transfer . The respondent averred that Pomerance was transferred "because of the fact that he did, despite numerous warnings, engage continuously in union activities during working hours and did -antagonize many of his co-workers in his former department by calling them vile and opprobrious and insulting names " In support of this averment Foreman Gottschalk testified that commencing in August 1942, he began to receive numerous complaints that Pomerance during work- ing time was continuously urging his fellow employees to join the Union. He stated that he•received complaints from the following employees• Ernest Fisher, Vincent m Pomerance complained many times concerning the use of benzol because, he testified, it cast off toxic fumes The respondent subsequently discontinued the use of benzol It claimed, however, that it did so solely because benzol constituted a fire hazard 21 The evidence is in direct conflict as to whether Pomerance was engaged in lapping for a period of 3 or 6 months The undersigned finds a resolution of this conflict immaterial to the issues of the instant proceeding and accordingly makes no determination as to the precise period Pomerance was engaged in lapping 846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Carubia, Paul Franzke, Sandor Bodroghy and Max Andrews " On cross-examina- tion, however, Gottschalk testified that he had received no reports that Pomerance was engaging in union activities. Only two of the above-named employees, Franzke and Bodroghy, testified in behalf of the respondent, and both of them expressly stated that they had never complained concerning Pomerance to their supervisors In view of Bodroghy's and Franzke's testimony that they had made no complaints concerning Pomerance and the. conflicting character of Gottschalk's testimony, the undersigned finds that Gottschalk received no complaints from any of the foregoing employees or, as he further testified, from employees whose names he could not recall Gott- schalk further testified that in the latter part of 1943 he observed Pomerance on several occasions engaging in conversations with employees from other benches, but whose identity was unknown to him. Gottschalk further stated that in February 1943 he reprimanded Pomerance because he had left his place of work without permission late one afternoon Pomerance categorically denied that Gottschalk had ever repri- manded him Upon his observation of Gottschalk's demeanor upon the stand, and in view of his established incredibility with respect to other matters to which he testi- fied, the undersigned rejects his testimony to the effect that he observed Pomerance engaging in the foregoing activities or that he reprimanded Pomerance In any event, that Foreman Gottschalk considered Pomerance a satisfactory employee is demonstrated by the fact that he recommended Pomerance for a merit \\age increase about the end of January, 1943, but 2 months before Pomerance's transfer Gottschalk also stated that throughout -the latter part of 1942 and the early part of 1943 John Tutrone, Pomerance's bench leader in Department 316, complained about Pomerance's activities during working time and that finally on March 26 1943, Tutrone declared, "Max [Gattschalk], this can't go any further because the fellows they are so excited they are constantly debating union matters with Pomer- ance because he is bringing up those points again and again, and it goes even so far that he insults the men and me personally." He added that Tutrone also mfoimed him that Pomerance had called Tutrone, a "stooge," "company man" and "rat" and had derisively inquired of him, "Why don't you go back to Italy?" He declared that after this conversation he referred the matter to DeFilippis who directed him to trans- fer Pomerance and that, pursuant to this instruction, he forthwith transferred Pom- erance ' Robert Sieglack, a bench leader in Department 316, testified that at about the time of the election Pomerance called Tutrone a "company stooge" and told him "to go back to Italy." Pomerance denied that he had uttered any of the foregoing remarks. Although the undersigned found Pomerance's testimony in nearly all instances to be direct, forthright, and in accord with other evidence of record and therefore entitled to credence, his denial of the foregoing statements was vague and equivocal. The undersigned therefore rejects Pomerance's denial of these Statements and finds, as Sieglack and Gottschalk testified, that Pomerance addressed the above remarks to Tutrone and that Tutrone complained concerning them to Gottschalk =i 2" Gottschalk also testified that he received complaints from many employees whose namrs be was unable to recall 23 As previously pointed out DeFilippis was not called upon to testify "s Tutrone also testified concerning the above events The undersigned, however, is his 1esolutiou of the above conflict in testimony, does not -rely upon his testimony Insofar as Tutrone s vei siou of the above incident differs from that of Sieglack and Gottschalk it is rejected It suffices to say that Tutrone's answers upon direct examination, although elicited in response to leading questions by counsel for the respondent, were hesitating, vague, and equivocal He was unable to give the time of or furnish details with respect to any of the incidents to which lie testified The uudersigiwd, from his observation of Tutrone's demeanor and upon caieful examination of his testimony, Snds ]rim to have been an inciedible witness and is unable to credit any portion of his te,Uniony CARL L. NORDEN, INC. 847 In view of all of the circumstances disclosed by the record, however, the under- signed is unable to find that Pomerance's transfer was motivated by the foregoing incident. In the first place, as previously found, the respondent considered Pomerance to be a highly satisfactory employee, giving him several increases in pay, the last of which he received but 2 months before the transfer. It is further indicated by the fact that he received no explanation at the time of his transfer, let alone the explana- tion now urged. The above incident to which the respondent now belatedly adverts, among other things, as a basis for Pomerance's transfer did not alter its high regard of him and result in his transfer to a job which did not fully utilize his capacities and which it knew he considered disagreeable. On the contrary, when Pomerance complained to DeFilippis that the transfer was discriminatory, DeFilippis assured him that the transfer was occasioned by the respondent's production requirements Likewise, upon the filing of a charge by the Union alleging Pomerance's discrimina- tory transfer, the respondent, describing the transfer as "routine," adopted a position in direct conflict with its current rationale . Finally, Gottschalk and DeFilippis, the respondent's supervisory employees responsible for the transfer, not only shared the respondent's anti-union animus, but on 3 separate occasions urged Pomerance to withdraw from the Union and discontinue his union activities. On one of these occasions Pomerance was expressly threatened with reprisal if he persisted in his union membership and activities Upon the foregoing findings of fact, and upon the entire record, the undersigned finds that the respondent, failing in its efforts to persuade Pomerance solely by coercive speech, determined to and did effectuate its threat of reprisal by transferring him to a less agreeable position, the respondent thereby interfering with, restraining, and coercing its employees in the exercise of their rights guaranteed them under the Act. 2. Withholding of a wage increase from Pomerance pending his withdrawal of a charge of discrimination filed with the Board zc About two months after his transfer to Department 317 Pomerance, who was then receiving 80 cents an hour, first began to make efforts to secure another wage in- crease. About May 1943, he inquired of Foreman Suwczinsky whether he was then eligible for an increase Suwczinsky replied that he was authorized to recommend a wage increase only if three months had elapsed since the employee had last received a wage increase. Pomerance pointed out that since he had received his last wage increase in late January, Suwczinsky was empowered to make a recommendation S.uwczinsky replied that he would ascertain what could be accomplished2e About a week later Pomerance again spoke to Suwczinsky regarding a wage in- crease On this occasion Suwczinsky informed Pomerance that DeFilippis had advised him that Pomerance was receiving the maximum, wage rate which the respondent was prepared to pay for lapping and that therefore he was not entitled to a wage increase Pomerance protested that he not only was unaware of such a limitation, but that he knew of several employees engaging in lapping who had received an hourly wage i ate higher than that which he was then receiving. 25The findings of fact hereinafter set forth are largely predicated upon Pomerance's credible and, for the most part, undisputed testimony 20 Suwczinsky's testimony regarding the above conversation differs somewhat from Pomerance's version thereof He testified that he advised Pomerance that he had not been in Department 317 a sufficient length of time to warrant an increase, but that he would subsequently rceommend such an increase if the quality of Pomerance's work warranted such action He added that at the end of May or June he recommended such an increase. Suwczinsky's testimony is at variance with the sworn statement which he gave the Board 's field examiner investigating the instant case In view of this circumstance, coupled with the undersigned's observation of Suwczinsky's demeanor on the stand and an examination of his testimony which, in large part, was vague and evasive, the undersigned does not credit his testimony hereinabove set forth , insofar as it differs from Pomerance 's version 848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Subsequently, about June 12, Pomerance met with Personnel Officer Hack and reported what Suwczinsky had previously told him. Hack replied that since De- Filippis was no longer supervisor of the 6th floor Pomerance should again request Suwczinsky to make formal recommendation for a wage increase Pursuant to this suggestion, Pomerance made such request of Suwczinsky and, on June 13, Suwczin- sky recommended a wage increase At the end of July or the early part of August, however, he still had not received the recommended wage increase. He thereupon made arrangements through John Pizzoli, who was then acting as supervisor of the 6th floor, for an appointment with the respondent's personnel director, Lang.27 Upon meeting with Lang he inquired of him the reason for the long delay between the recommendation for his wage increase and the actual receipt thereof. Lang replied that since Pomerance's charge of dis- crimination was still pending "he would not act on the raise." Lang referred to the Union's charge and amended charge, both of which contained an allegation that Pomerance had been discriminately transferred. The charge had been filed on April 23, 1943, and the amended charge, then pending, on June 7, 1943. Pomerance replied that he was unaware of the existence of a relationship between the recom- mendation for his wage increase and the pending charge of unfair labor practices but. that he would ascertain what he could do. He immediately informed the Union's attorney of his conversation with Lang. Upon learning from the Union's attorney that there was a strong likelihood that the charge would not be acted upon by the Board for some time, Pomerance asked that the charge be withdrawn. Pursuant to his own instruction, the pending charge was withdrawn and a new charge, omitting all reference to Pomerance, was filed on August 18, 1944, and the respondent was so advised. Thereupon, about the end of August, Pomerance received a 7 cents per hour wage increase, retroactive to June 13, the date it was recommended by Foreman Suwczinsky. Upon the foregoing recital of facts and upon the entire record, the undersigned finds that the respondent withheld a wage increase from Pomerance because he had caused charges against the respondent to be filed under the Act, the respondent thereby interfering with, restraining, and coercing its employees in the exercise of their rights guaranteed them under the Act 28 3. The discharge of Pomerance On August 10, 1944, Pomerance requested Foreman Suwczinsky to recommend him for another wage increase. He pointed out that two employees engaged in iden- tical work and with less seniority than he had recently received wage increases. Suwczinsky, according to Pomerance, replied that although he had no criticism of Pomerance's work he did not like his "attitude," he "talked too much" and "agitate[d] the men."' 27 Neither Hack nor Lang were called upon by the respondent to testify. 21 The respondent's counsel generally contended that the wage increase hereinabove in issue was granted and made effective on June 13 , 1943 As noted, however, the respondent did not call upon Lang and Hack to testify, nor did the respondent introduce the records in its possession which showed precisely how much Pomerance received weekly during the period from June 13 until the end of August, the period in issue. 29 Suwczinsky testified on direct examination that he merely informed Pomerance that he "would not grant him an increase because of his behavior on the bench " and that Pomerance had replied, "if [you are] not satisfied , why don't you fire me?" On cross -examination, however, omitting any reference to the foregoing statement assertedly made by Pomerance , Suwczinsky stated that he had informed Pomerance that he could not recommend him for a wage increase because of his "talking" and that Pomerance had merely protested, "I don 't talk any more than anyone else." Upon his observation of Suwczmsky's demeanor, and in view of the foregoing self-contradictions contained in his testimony and his established incredibility, the undersigned rejects Suwczinsky' s version of the above conversation and credits Pomerance's account thereof. CARL L._NORDEN, INC. 849 The next day, August 11 , Pomerance was discharged About 11 o 'clock: that morning the respondent posted a notice on the 6th floor bulletin board which read in part as follows : A FURTHER REDUCTION IN WORKING HOURS IS NOW MADE NECESSARY BY A HEAVY CUT-BACK IN ORDERS AS A RESULT OF CHANGING WAR CONDITIONS' THIS CHANGE WILL BE EFFECTIVE MONDAY AUGUST 14, AND BOTH THE LAFAYETTE AND VARICK STREET PLANTS WILL OPERATE ON A 45-HOUR WORKWEEK, OR FIVE NINE HOUR DAYS. The management appreciated the cooperation of its employees when the hours were increased and will be grateful for their continued cooperation under the new schedule 80 According to several of the respondent's witnesses and Pomerance, the above announcement caused some excitement among the employees on the 6th floor. They stated that as soon as the foregoing notice was posted the employees left their work to go to the bulletin board. Pomerance added that as he read the notice some 30 employees were standing before the board. He further testified that thereafter employees discussed the effects of the reduction upon their take-home wages, the possibilities of their making application for and securing releases from the respondent or securing supplementary employment elsewhere. Indicative of the employees' anxiety and concern is Pomerance's testimony that many of the employees proposed that he lead a "walk-out" He stated that he discouraged this latter proposal There was no walk-out. In view of the contents of the notice and from the undersigned's observation of the witnesses who testified concerning conditions in the plant, the undersigned finds that the respondent's announcement of a reduction in hours resulted in some excitement among the employees of the 6th floor. Pomerance, shortly after reading the foregoing notice, attached to his bench lamp the first page of the April 1944 issue of the Foresight, which page contained an article predicting that the employees were threatened with further reductions in hours This page had as its headline: "NORDEN WORKERS FACING FURTHER CUT- BACK REDUCTION "81 Pomerance testified that he knew of 5 persons who "took notice" of the Foresight while it was posted on his lamp, but that he had been unable to determine whether they had read the foregoing article. Three of the 5 employees worked alongside Pomerance at the same bench. He further testified that he also discussed the subject matter of the above article with some of his fellow employees, since the employees who worked at his bench discussed the announced "cutback." Employee Penna testified that early that afternoon he "saw a few people [gather] around" reading the paper while it was posted on the bench lamp. Bench leaders Sherman, Tutino, and Sieglack testified in general terms to the same effect. None of these witnesses identified any of the employees who assertedly "gathered" around the bench or read the notice. In any event, that the Foresight did not cause any disturbance or undue discussion, is indicated by the fact that Foreman Suwczui- sky was admittedly unaware that it was posted until it was called to his attention 30 The plant was curiently operating upon a schedule providing for a 45- and 50-hour workweek for women and men, respectively. 31 The testimony is in conflict as to whether only the headline upon the page or the entire page containing, among other things, the above-described article and a cartoon in derogation of the respondent was hung Resolving this conflict, the undersigned finds that the page was hung full length. 850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by Floor Supervisor Ho1ze' between 3 and 4 o'clock that afternoon , at least 4 hours after it was posted . The evidence is undisputed that Holz first became aware of it at that time and immediately instructed Suwczinsky to have it removed s ' The under- signed finds that Holz knew that the newspaper hanging from the lamp was a union newspaper at the time he ordered its removal " A few minutes later Suwczinsky di- rected Pomerance to remove the Foresight, which he did at once Some 10 to 15 minutes later, however, he attached it to his tool box,' situated upon a shelf on his work bench Suwczinsky , upon noting this fact, reported it to Holz who retorted. "I don't want it on the tool box or any place else in the shop."' Suwczinsky, according to Pomerance, thereupon directed him to remove the afore- said paper from his tool-box declaring that "the company does not want any decora- tion on the boxes." Pomerance, asking, "Why do you pick on me?", refused. He pointed to "boxes decorated with all kinds of things , including newspaper clippings, advertisements , pin-up girls, personal family photographs , calendars, and . . other things commonly used to decorate the boxes ." In the meantime, Holz requested and received authority from General Superintendent Otto Shadlich to discharge Pom- erance in the event he refused to comply with the request . Holz testified that he informed Shadlich, "I have had an infraction of the rule that has been effective a long time, Otto I see it happens to be Pomerance ... he had a paper of some kind hanging on his light and I had him remove it and now he has posted it on his tool box." Holz, upon learning from Suwczinsky that Pomerance refused to remove the paper, summoned Pomerance to his office . According to Pomerance, Holz thereupon' directed him to remove the "paper " from his tool box Pomerance refused, reiterat- ing that it was his "personal " box and other tool boxes were similarly "decorated" Holz thereupon declared, "You are discharged . Shut up" Holz testified, however, that he advised Pomerance , "You know it is against the company principle or policies to display any kind of literature or what you may have , and I feel that is only a slight infraction there . Why don't you play ball ? I am only asking you to take that paper off. Otherwise you are going to force me to take action I don't-want to do that" 82 Bench leader Tutino testified that he notified Suwczinsky of the "posting " as soon as he dis- covered it during the noon hour. His entire testimony is not only in conflict with Pomerance's account of the sequence of events that day- but with the testimony of Holz and Suwczinsky as well The undersigned cannot credit any portion of his testimony in this connection. 33 In an apparent attempt to explain the failure of Suwczinsky and Holz to notice the Foresight on Pomerance's bench lamp, the respondent adduced testimony to show that both of them had spent con- siderable time on other floors that day. Both Suwczinsky and Holz admitted , however, that at vari- ous times that day they were on the floor Holz admitted that he spent the greater part of the day in his office on the 6th floor. Holz testified that his attention was drawn to the "newspaper" between 3 and 4 o'clock by the fact that he saw a group of about 6 employees talking with Pomerance at his bench. If such were the fact, Suwczinsky , who, as Holz revealed, was in the department at the time, would undoubtedly have been aware of the gathering and would have presumably taken appropriate action Suwczinsky made no reference to a gathering at Pomerance 's bench Nor did Suwczinsky advise Pomerance that there had been a group assembled at his bench Accordingly, Holz's testimony cannot be credited 34 Holz testified that he was unaware of the character of the newspaper Conclusively establishing that he had knowledge of the character of the posted newspaper at the time be took the above action is the "Supervisor's report" which he admittedly prepared immediately after the discharge of Pomerance The report setting forth the purported reason for the discharge reads "Displaying C I 0 paper in shop which he refused to remove Insubordination , continuously provoking foremen for discharge recently. No release." i ss The employees' tool boxes are the personal property of the individual employees 29 Suwczinsky testified that Holz had added; "It is against company rules." In the light of Suwczinsky's established incredibility as a witness the undersigned credits Holz's version of the above conversation Likewise, the undersigned discredits Suwczinsky 's version of his various con- versations with Pomerance that day insofar as it differs from Pomerance 's account CARL L. NORDEN, INC. 851 He further testified that Pomerance refused, declaring , "Fire me if you want to, give me my release."37 Holz declared that he replied , "Very well, Eric, you asked for it You are discharged right now for insubordination . . . ." On cross-examination Holz, after first declaring that he was unable to recollect whether Pomerance had referred to postings on other tool boxes, admitted that Pomerance had said, "There are cal- endars hanging on other tool boxes." Upon his observation of Holz, and in view of the self-contradictions contained in his testimony as well as his established incredi- bility with respect to other matters , the undersigned finds Pomerance 's version of the foregoing conversation to be accurate. Pomerance thereupon asked Holz for a "release " and a "bonus" to which he claimed he was entitled . Holz replied that these were matters for the personnel office. Pom- erance thereupon made the same request of Pettymeyer, an employee in the personnel office. He denied both requests , claiming that Pomerance had provoked the discharge and therefore was not entitled to a release and that the "bonus " was a gratuity which the respondent in its discretion bestowed upon its employees.' The respondent contended in its answer and at the hearing that Pomerance was discharged because : ( 1) he engaged in union activities during working time and working hours on the plant premises in violation of explicit rules despite repeated warnings, and (2) that he insisted upon posting and exhibiting union leaflets and bulletins on his lamp and on his tool box at his bench, causing commotion and interfering with production , and that he refused several requests to remove these leaflets and bulletins. In support of the first ground assigned for the discharge , the respondent adduced evidence attempting to establish the existence of the following rules : (a) a prohibi- tion against employees leaving their bench . to converse with other employees con- cerning matters unrelated to their work , (b) a prohibition against employees engag- ing in "lengthy" or "continuous'! conversations unrelated to their work during working hours . The respondent further sought to establish that Pomerance , contrary to these rules, engaged in union activities during working hours and that on several occasions he had been reprimanded by various of the respondent's supervisory employ- ees for such activities . Carbone and Pomerance denied that they had any knowledge of such rules and testified that the employees were permitted to converse with each other during working hours concerning subjects unrelated to their work . Pomerance further denied that he had engaged in union activities during working hours or that he had been reprimanded for so doing. He claimed that any union activities in which he engaged on the respondent's premises were during the lunch hour and rest periods SB The undersigned, however, concludes it to be unnecessary to the issues of the instant case to resolve the above conflicts in evidence . It is clear from the conversations which Holz and Suwczinsky had with Pomerance on the day of his discharge, as well as Holz's conversation with General Superintendent Shadlich that same day, that the respondent was not motivated in selecting him for discharge by reason of his alleged violations of the respondent' s asserted rules against talking In addition, it is established by the testimony of Personnel Manager Howe, with whom Shadlich and Holz discussed the discharge at the time it occurred, that Pomerance's discharge was not motivated by such considerations . Howe, flatly stating sr Pomerance on cross-examination repeatedly denied that Holz had warned him that he would be discharged if he refused to comply with the order. as Pomerance subsequently appealed to the War Manpower Commission and received a release from that agency. 33 The iespondent does not contend that union activities dining the rest periods iscic in contia- vention of its rules On the contrary, the respondent expiessly states that it permitted the employees to engage in whatever activities they desired during there periods 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Pomerance was not.discharged "for engaging in Union activities" but because of his refusal to remove a "poster," testified that he was so informed by either Shadlich or Holz. Howe further testified that it was only after issuance of the Board's amended complaint alleging Pomerance's discriminatory discharge that Shadlich, Holz, and Howe met to discuss "Pomerance's status while he was an employee with the company, what he did, what union activities he had engaged in " He added that this was the first time that he had discussed Pomerance's asserted union activities on company time. Upon the foregoing evidence the undersigned finds that Pomerance's asserted union activities in violation of the respondent's alleged rules against conversations was a rationalization evolved by the respondent after the issuance of the Board's amended complaint. Thus, the sole question pertinent to the issue of whether Pomerance's discharge was discriminatory is whether Holz required him to remove the Foresight from his tool box because he wished to enforce a plant rule and prevent commotion among the employees and interference with production, or whether he was motivated by an illegitimate consideration, a desire to interfere with Pomerance's union activities and those of his fellow employees 40 The undersigned finds that "the critical moment is when [the respondent] first gave the order, not when [the respondent] discharged [Pomerance] for disobeying it" Columbia Products case, supra, at p 688 In determining the respondent's motive in directing Pomerance to remove the union newspaper from his tool box it is necessary among other things, to ascertain whether or not the respondent promulgated a rule prohibiting the posting of any matter upon the employees' tool boxes and, if such a rule were in existence, whether or not it was enforced in a non-discriminatory manner. The undersigned finds, upon examination of the testimony and exhibits adduced by the respondent that the re- spondent on an undisclosed date promulgated a rule prohibiting the posting of any matter upon the plant walls or pillars, or upon the employees' tool boxes. There is no credible evidence, however, that such a rule was made known to the employees in the customary manner by an official bulletin board notice On the contrary, it is established by the testimony of Foremen Hans Zielke and Gottschalk, Sieglack, and Pizzoli that the rule was on one occasion publicized on the 6th floor as follows: About March 27, 1943, Floor Supervisor DeFilippis, by memorandum hearing that date, instructed each of the foremen on the 6th floor. "Kindly have all newspaper clippings and pictures removed from the walls and posts, and even tool boxes " The foremen were verbally instructed to make the rule known to the employees of their respective departments Insofar as the record discloses, at least two of the foremen, Gottschalk and Zielke, advised their respective employees of this. rule at the time of the memorandum " 40 Even if it were to be assumed that the respondent had an absolute privilege in prohibiting Pomerance from attaching union literature to his tool box in order to maintain plant discipline and production , it did not extend to discharging him because of the respondent 's desire to prevent and interfere with union activities As stated by the Second Circuit Court of Appeals in N L R B v Columbia P. ducts Corporation , 141 F (2d) 687 , involving an analagous situation , "if [the em• ployer] was moved by another desire than to prevent disturbances during the lunch hour , his order was not excused, and it makes no difference whether or not the Board had no power to subject the general convenience of the employer to the employees' right to organize " See also N L R B v Denver Tent & Awning Co , 138 F (2d) 410 (C C A 10) ; Carter Carburetor v N L R B , 140 F. (2) 714 (C C A 8) 41 Various foremen and employees testified that they were on several occasions wally informed of the rule by their respective supervisory employees Pomerance testified , however, that he had never been informed of such a rule, nor is there any direct testimony in the record that he was so informed. Tn is unnecessary to a determination of the issues in the instant case to make a finding as to V'iether or not he had knowledge of the rule. 0 CARL L. NORDEN, INC. 853 Poinerance testified, however, that at the time of his discharge large numbers of .the 6th floor tool boxes were decorated with newspaper and magazine clippings, pin-up girls, photographs, advertisements and calendars. He stated that lie knew of no one who had ever been told, to remove anything from his tool box. Carbone testified that most of the employees on that floor posted newspaper clippings, "pictures of girls," and similar things on their tool boxes. He added that he, himself, at various times had attached to his box, various things including a booklet entitled, "The Four Freedoms," a small American flag, and a Red Cross pin. He testified that he had never been reprimanded for posting anything upon his tool box, nor had he been asked to remove any objects from his box, except on an occasion when the respondent painted the interior of the plant a year and a half before the hearing Likewise, employee Joseph Hughes, who testified on behalf of the Board as a rebuttal witness, stated that for a period of 3 years he continuously saw pin-up girls, baby pictures calendars, and newspaper pictures and clippings attached to the tool boxes and, on some of the boxes, the words "NORDEN E" painted. He added that only as an employee tired of a particular picture did the employee remove it, and then only to replace it with a similar picture Hughes further testified that on the morning of October 5, 1944, while the hearing was in progress, one Yackus, Hughes' bench leader, advised him that the preceding night Holz had ordered that "everything had to come off the tool boxes and the bench not pertaining to work " Thereupon, Yackus ordered Hughes to remove an illustrated postal card which had been on his bench since the middle of August 1944, and a white slip of paper which had been placed on the tool box about the end of September. He also testified that on October 3, 1944, he overheard Foreman Samuelson direct an employee who sat alongside of him to remove a scenic picture which she had hung' upon the wall about 2 months before The undersigned finds, upon the basis of the foregoing detailed and specific testimony, that prior to the hearing in the instant case it was customary for the respondent's employees to post various things on their tool boxes and that they did so, without objection or reprimand from the respondent's supervisory employees The under- signed further finds that it was only after the hearing in the instanct case began and it became apparent that it was material to the respondent's defense to establish that the no-posting rule was enforced in a non-discriminatory fashion that the respond- ent first attempted to effectuate the no-posting rule' Upon the foregoing evidence, and upon the entire record, the undersigned finds that Pomerance's discharge was discriminatory. The respondent's action in directing him to remove the union newspaper from his tool box was not actuated, as it now contends, by a desire to enforce an existing plant rule and maintain discipline and 42 Holz and Foreman Samuelson testified as a part of the respondent's main presentation of its case that they had not in recent weeks given any orders requiring the removal of matter from tool boxes Holz declared that he did not "recall" giving such an order to Yackus Bench leader Yackus, although still employed by the respondent, was not called upon by the respondent to testify The undersigned does not credit Holz's and Samuelson's testimony in, this regard As to the remainder of the respondent's witnesses who testified concerning the manner in which the respondent enforced the "no posting" rule the undersigned, after careful examination of their testimony and upon ob- servation of their demeanor, is unable to credit their testimony Their testimony, in large part, was elicited in response to questions by the respondent's counsel which suggested the desired answer In addition, their testimony was vague and general, none of the respondent's witnesses identified any employee against whom the rule was assertedly applied In several instances, their testimony was not only in conflict with that of the Board's witnesses hereinabove set forth but with the testi- niony of other of the respondent's witnesses. Thus, Charles Tavarizzi, a guard, stated that he had never seen any calendars posted on the tool boxes, whereas several other of the respondent's wit- nesses admitted that many of the employees who needed calendars posted calendars on their tool boxes Finally, various of the respondent's witnesses who testified concerning the manner in which the rule was enforced were found to be wholly incredible with respect to other matteis 854 DECISIONS OU NATIONAL LABOR RELATIONS BOARD unimpeded production . As found above , the respodent's rule against posting was not enforced until after Pomerance was discharged and the hearing in the instant case litigating the legality of that discharge had begun . Nor did Holz nor S'uwczinsky in their various conversations with Pomerance on.August 11, claim that the union newspaper was creating or tending to create any commotion among the employees or that it was interfering with production. Nor did Holz in h,s conversation with General Superintendent Shadlich make such an assertion . Holz and Suwczinsky purportedly predicated their action herein in dispute solely upon the basis that Pomerance had violated an existing plant rule. That the respondent itself recognized the dubious nature of the above defense is indicated by its attempt , after the amended complaint was filed, to assert a more plausible basis for the discharge , Pomerance's union activities during working hours. As previously found, it is clear that these asserted violations of the respondent 's alleged rules concerning conversations did not motivate the discharge. In sum, the respondent 's failure to advance any explanation for its discriminatory application of the no-posting rule, the implausibility of the respondent's asserted rea- sons for the discharge, particularly in view of the vague, indefinite, and conflicting character of the respondent's supporting testimony, Pomerance's leadership in the Union, his refusal of the respondent 's request that he renounce the Union and dis- continue union activities , the respondent's prior discriminatory attempts to restrict and discourage his union activities , all convince the undersigned that Pomerance was directed to remove the Foresight from his tool box solely in order to discourage and restrain his union activities , as well as the union activities of his fellow employees The undersigned further finds that, upon Pomerance's refusal to obey this discriminatory demand, he was discriminatorily discharged , the respondent thereby interfering with, restraining, and coercing its employees in the exercise of their rights guaranteed them under the Act. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE It is found that the activities of the respondent set forth in Section III, above, occurring in connection with the operations described in Section I, above, have a close, intimate and substantial relation to trade, traffic, and commerce among the several States , and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that the respondent has engaged in certain unfair labor practices it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the purposes of the Act Since it has also been found that the respondent discriminated in regard to the hire and tenure of employment of Eric Pomerance it will be recommended that the respondent offer him full and immediate reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights or privileges It will be further recommended that the respondent make hun whole for any loss of pay he may have suffered by reason of such discrimination, by payment to him of a sum of money equal to the amount he normally would have earned as wages from the date of the discharge against him to the date of the respondent's offer of reinstatement, less his net earnings43 during such period. 43 By "net earnings" is meant eainmgs less expenses, such as for tiansportation, icoin and board incurred by an employee in connection with obtaining work and corking elsewhere than for the re- spondent, which would not have been incurred but for his unlawful discharge and the consequent CARL L. NORDEN, INC. 855 Upon the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW 1. United Electrical, Radio & Machine Workers of America, C I 0 Local 475, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Eric Pomerance, and-thereby discouraging membership in United Electrical, Radio & Machine Workers of America, C. I. 0., Local 475, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) and (4) of the Act. 3. 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. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. 5. The respondent has not engaged in unfair labor practices within the meaning of Section 8 (1) of the Act by keeping under surveillance and observation the meeting places, meetings and activities of the Union, or the concerted activities of its employees for the purpose of self-organization or improvement of working conditions RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, the undersigned recommends that the respondent, Carl L. Norden, Inc., its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in United Electrical, Radio & Machine Workers of America, C. I. O , Local 475, or any other labor organization of its employees b` discriminatorily discharging or transferring any of its employees, by withholding from any of its employees merited wage increases, or in any other manner discrim- inating in regard to their hire or tenure of employment or any term or condition of employment; (b) 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 Electrical Radio & Machine Workers of America, C I. 0, Local 475, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the undersigned finds will effec- tuate the policies of the Act. (a) Offer Eric Pomerance immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges ; (b) Make whole Eric Pomerance for any loss of pay he may have suffered by reason of the respondent's discrimination in regard to his hire and tenure of employ- ment, by payment to him of a sum of money equal to that which he normally would necessity of his seeking employment elsewhere See Matter of Crossett Lumber Company, 8 N L R B 440 Monies received for work performed upon Fcdeial, State, county, municipal, or other woi L-i elief projects shall be considered as earnings See Republic Steel Coi poi ation v N L R B , 311 U S 7. 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have earned as wages from the date of the discrimination against him to the date of the respondent's offer of reinstatement, less his net earnings" during such period; (c) Post immediately in conspicuous places at its plant in New York City, and maintain for a period of at least sixty (60) consecutive days from the date of posting notices 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) and (b) of these recommendations; (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a) and (b) of these recommendations; and (3) that the employees are free to become or remain members of United Electrical Radio & Machine Workers of America, C. I 0 , Local 475, and that the respondent will not discriminate against any employee because of membership in or activity on behalf of that organization ; (d) Notify the Regional Director for the Second Region in writing within ten (10) days from the receipt of this Intermediate Report what steps the respondent has taken to comply herewith. It rs further recommended that the complaint be dismissed insofar as it alleges that the respondent kept under observation and surveillance the meeting place, meet- ings acid activities of the Union, or the concerted activities of its employees for the purpose of self-organization or improvement of working conditions. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 3, as amended, effective November 26, 1943, any party or counsel for the Board may within fifteen (15) days from the date of the entry of the order transferring the case to the Board pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Rochambeau Build- ing, 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 relies upon, together with the original and four copies of a brief in support thereof. Immediately upon the filing of such statement of exception and/or brief, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. As further provided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of the order transferring the case to the Board. WILLIAM J. ISAACSON Trial Examiner Dated January 13, 1945. 44 See footnote 43, supra.