Robeson Cutlery Co., Inc.

In the Matter Of ROBESON CUTLERY COMPANY, INC. and INTERNATIONAL ASSOCIATION OF MACHINISTS Case No. 3-C-734.-Decided April 18,1946 DECISION AND ORDER On October 19, 1945, the Trial Examiner issued his intermediate Report in the above-entitled proceedings, finding that the respondent had engaged in and was engaging in certain unfair labor practices, and recommending that the respondent cease and desist therefrom and take certain affirmative action, as set forth in a copy of the Intermediate Report attached hereto. Thereafter, the respondent filed exceptions to the Intermediate Report and a supporting brief. The Board has considered the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. None of the parties requested oral argument before the Board at Washington, D. C., and no argument was had. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the addition noted below : We agree with the Trial Examiner that on May 2, 1945, and at all times thereafter, the Union represented a majority of the em- ployees in the appropriate unit and that on May 8, 1945, and there- after, the respondent refused to bargain with the Union not because of any good faith doubt as to the Union's majority status but because of the respondent's opposition to self-organization among its em- ployees and to the principle of collective bargaining. The record shows that the respondent, after its unlawful refusal to bargain with the Union on May 8, laid off 9 union members, which left the Union with 42 members out of the remaining 91 employees in the appro- priate unit. However, inasmuch as the lay-offs were made on a dis- criminatory basis, as detailed in the Intermediate Report, we find, as did the Trial Examiner, that the lay-offs do not impair the Union's previously established majority status.' Moreover, we would IN. L. R. B. v Bradford Dyeing Association , 310 U S 318 Franks Bros Co v N. L R B , 321 U. S. 702 67 N. L R. B, No. 64 692148-46-vol 67-32 481 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD arrive at the same conclusion even if the lay-offs had not been violative of the Act, because they occurred after the respondent's refusal to bargain with the Union. Under all the circumstances, we find, for the reasons stated in our Supplemental Decision in Matter of Karp Metal Products Co., Inc.,2 that the policies of the Act will best be effectuated by requiring the respondent to bargain collectively with the Union. 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, Robeson Cutlery Company, Inc., Perry, New York, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in International Association of Ma- chinists, or any other labor organization of its employees, by laying off or refusing to reinstate 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 employment; (b) Refusing to bargain collectively with International Associa- tion of Machinists as the exclusive representative of its production and maintenance employees, including the stock clerk and shipping clerk, but excluding working foremen, office, clerical and supervisory employees, in respect to rates of pay, wages, hours of employment, and other conditions of employment; (c) Dominating or interfering with the formation and adminis- tration of any labor organization of its employees, and contributing support thereto; (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist International Association of Machinists, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer to Harry Van Scoter, Ray Arnold, and Charles J. Passamonte full and immediate reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges; (b) Make whole Charles J. Passamonte, Harry Van Scoter, Leroy Mason, Ruby Converse, Marie Calkins, Ray Arnold, Charles Krauss, 2 51N L R.B 621 ROBESON CT-TLT`RY COMPANY, INC. 483 Grace Krauss, and Cassius Howe, for any loss of pay they may have suffered by reason of the respondent's discrimination against them, by payment to each of them of a sum of money equal to the amount which he or she normally would have earned as wages from the date on which he or she was laid off to the date of reinstatement or offer of reinstatement, less net earnings during said period; (c) Upon request, bargain collectively with International Associa- tion of Machinists as the exclusive representative of its production and maintenance employees, including the stock clerk and the ship- ping clerk, but excluding the working foremen, office, clerical and supervisory employees, in respect to rates of pay, wages, hours of employment, and other conditions of employment; (d) Refrain from recognizing the Cooperative Committee, or any successor thereto, as the representative of its employees for the pur- poses of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other con- ditions of employment; (e) Post at its plant at Perry, New York, copies of the notice at- tached to the Intermediate Report, marked "Appendix A." 3 Copies of said notice, to be furnished by the Regional Director for the Third Region, shall, after being signed by the respondent's representative, be posted by respondent immediately upon receipt thereof, and main- tained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are custo- marily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material; (f) Notify the Regional Director for the Third Region in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply therewith. MR. GERARD D. REILLY took no part in the consideration of the above Decision and Order. INTERMEDIATE REPORT Mr Francis X Helgesen, for the Board. MacFarlane, Hari is & Goldman, of Rochester, .\' Y, by Mr. Harrtl D. Goldmoil, for the respondent Messrs J Paul Kessler and H. I. Smith, of Rochester, N Y. for the Union STATEMENT OF THE CASE Upon an amended charge duly filed on June 19, 1945, by International Associa- tion of Machinists, A F. of L, herein called the Union, the National Labor Rela- ' Said notice, however, shall be, and it hereby is, amended by striking from the first paragraph thereof the words, "The Recommendations of a Trial Examiner " and substi- tuting in lieu thereof the words , "A Decision and Order " 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions Board, herein called the Board, by its Regional Director for the Third Region (Buffalo, New York), issued its complaint dated June 20, 1945, against Robeson Cutlery Company, Inc, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1). (2), (3), and (5), and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and notice of hearing were duly served upon the respondent and the Union. With respect to the unfair labor practices, the complaint alleged in substance that the respondent: (1) from on or about April 1, 1944, engaged in acts of inter- ference, restraint, and coercion ; ' (2) on or about August 1, 1944, did inaugurate, create and establish a labor organization among its employees known as the Grievance Committee,' hereinafter called the Committee, and at all times since August 1, 1944, has dominated and interfered with the administration and func- tioning of the Committee and contributed financial and other support to the Committee; (3) on specified dates during May and June 1944 laid off Charles J. Passamonte, Ray Arnold, Harry Van Scoter, Charles Krauss, Leroy Mason, Grace Krauss, Ruby Converse, Cassius Howe, and Marie Calkins because of their membership and activity in the Union and thereafter reinstated six named employees and refused and failed to reinstate Chailes J Passamonte, Ray Arnold and Harry Van Scoter in order to discourage membership in the Union; (4) that all production and maintenance employees except for office, clerical and all supervisory employees having authority to hire, promote, discharge, disc.pline or otherwise effect changes in the status of employees or effectively recommend such action constitute a unit appropriate for the purposes of collective bargain- ing within the meaning of the Act; that from on or about May 1, May 9, and May ii, 1944, a majority of the employees in said unit had designated the Union as their bargaining representative and by virtue thereof the Union since said dates has been the exclusive representative of the employees in said unit for the purposes of collective bargaining; and that respondent since said dates has refused and failed to bargain collectively with the Union, and (5) by the acts described above the respondent iliteifered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act The respondent duly filed its answer in which it admitted some of the allega- lions in the complaint but denied that it had engaged in any unfair labor prac- tices The respondent alleged aflirmatii ely that upon being notified by the Board that the Committee was illegal, it discontinued and dissolNed said Committee and that said Committee has not been in existence since September 1944. Further, that the laying off of the persons named in the complaint wars for sound business reasons occasioned by changes in production schedules and that all persons who did not express an unwillingness to take other jobs were offered other jobs as soon as work was available for said persons. Pursuant to notice, a hearing was held at Perry, New York, on July 26, 27, and 30, 1945, before the undersigned, the Trial Examiner duly designated by the Chief Trial Examiner The Board and the respondent were represented by counsel, and the Union by lay representatives. All parties participated in the hearing Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded to all parties. At the close of the Board's case the respondent moved to dismiss the complaint The motion was denied. At the close of the hearing the undersigned took under ' Stated generally, these acts are alleged to consists of anti-union statements, questioning, threats, advice, and discouragement against affiliation with the Union 2 Although the complaint sets forth the name of the Committee as above, according to the by-laws introduced in evidence it was known as Co-Opei atii e Committee ROBESON CUTLERY COMPANY, INC. 485 advisement the motion of the respondent to dismiss the complaint for lack of proof. This motion is hereby denied. The motion of the Board's attorney to <,onform the pleadings to the proof in formal matters was granted without objection by the respondent. At the close of the hearing counsel for the Board argued orally before the undersigned, counsel for the respondent waived the making of any oral argument Counsel for the respondent subsequently filed a brief. 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, Robeson Cutlery Company, Inc., is a corporation duly organized under and existing by N iitue of the laws of the State of New York, having its principal office in the city of Rochester, County of Monroe, State of New York. It operates a plant in the village of Perry, County of Wyoming, State of New York, which alone is involved in this proceeding It is there engaged in the design, manufacture, sale and distribution of knives, cutlery and related products. During the calendar year 1944 the respondent in the conduct of its business Operations at its plant in Perry, New York, purchased raw materials consisting principally of steel, leather and wood valued at approximately $30,000, of which approximately 80 percent was shipped to its plant at Perry, New York, from points outside the State of New York. During the same calendar year 1944 the respond- ent manufactured products having a value approximated at $500,000, of which approximately 90 percent was sold and shipped to points outside the State of New York. The respondent admitted at the hearing that it is engaged in commerce, within the meaning of the Act. II THE ORGANIZATIONS INVOLVED International Association of Machinists, A. F. of L, affiliated with the American Federation of Labor, is a labor organization which admits to membership employ- ees of the respondent. The Co-Operative Committee, an unaffiliated organization, at the times material herein, was a labor organization admitting to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Preliminary statement The details related hereinafter arose within the framework of these more general facts : In March 1944, the Union instituted an organizational campaign at the respondent's plant. On April 21, 1944, it wrote respondent that it represented a majority, and it requested a meeting to discuss the procedure by which the matter of representation could be handled. A meeting was held at the Union's office in Rochester, New York, on or about May 8, at which the respondent stated that it did not think the majority of employeeA wanted a union and thought it would be best to proceed through the Board. On May 9, the Union filed a petition for certification of representatives with the Board Several days later, on May 11, a conference was held in the office of the attorney for the respondent, attended by representatives of the Union, the respondent, the respondent's attorney, and a Field Examiner of the Board The Field Examiner suggested a consent elec- 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion to the parties. The respondent did not agree and held to its original position. On May 12, according to the respondent, it laid off four male employees This was followed, on May 13, by the lay-offs of two female employees ; on May 20, of another male employee; and on June 1, of a male and female employee. At no time during the conferences of May 8, and May 11, was any mention made by the respondent of the prospect of any lay-offs. In a letter to the Board dated May 25, the respondent advised that it would then agree to a consent election, provided the election was held promptly. Asa result of the lay-offs, the Union filed charges with the Board and thereafter, on or about June 11, the Union requested permis- sion of the Regional Director of the Board to withdraw its petition for certifica- tion of representatives, which request was approved on June 13. On or about August 1, the respondent inaugurated and established a labor organization among its employees known as the Co-Operative Committee. B Interference, restraint, and cocci ion As heretofore found, organizational activities among respondent's employees began in March 1944' The respondent was fully aware of these activities Thus Emerson E. Case, general manager of respondent's plant and its vice-president, testified that the day after the fist meeting of respondent's employees he' was told about the Union being organized, by about 20 people. He explained that Perry, New York is a small town and everyone seems to know what is going on. During the month of Apfil, Jeannette Peters,' an employee of the respondent for 12 yeais and one of those originally approached when union organization was started, went into Case's office to use the phone Case asked her "how the Union was coming along," Peters answered "line," whereupon Case said that he understood Peters "was one of the faithful eleven."' About the second or third week in May, Peters was visiting in the plant' when she was stopped by Saul Frankel, respondent's president, who asked het how the Union was coming along. Frankel, according to Peteis, also said, "it didn't matter much whether the plant continued or not."' During the latter pait of April or early May Charles Krauss and Leroy Mason, employees who took an active part in the organizational activities of the Union, 3 1 Paul Kessler, business agent for the Union, testified credibly, that employees of the Kaustine Company , a neighboring plant, where the I A. M. is the recognized bargaining agent, contacted respondent 's employees and arranged for a meeting. Several of the respondent 's employees attended the meeting at the hotel in Perry , and after talking over the matter of organization decided to put on a campaign 4 Incorrectly referred to in the transcript as Jeannette Peterson 5 Peters testified that she thought the reference to "faithful eleven," at the time meant something about the Union, but that later in a conversation with another employee, she was told that there were just 11 employees at the union meeting the night before when Peters was there, but that after she left the meeting, more employees came in. Peters' testimony in this regard was uncontradicted and is credited. 6 Peters suffered a fractured ankle about May 1 , and did not actually return to work in the plant until sometime in June 4 Peters' recollection as to this incident was rather hazy. It was not until her recollec- tion was refreshed by a statement that she had previously given to a Board agent, which she admitted was a true and accurate statement at the time she gave it, that she remem- bered Frankel's making the statement. Peters testified that she did not hatie more than two conversations with Frankel regarding the Union , and could not recall at which con- versation Frankel made the statement regarding the plant Frankel was unable to appear as a witness at the hearing because of a serious illness The Trial Examiner upon being advised of Frankel's condition , during the hearing called the attention of respondent's attorney to Section 20 of the Board's Rules and Regulations , regarding depositions. Respondent's counsel did not ask for a continuance of the hearing nor (lid he make appli- cation to take the deposition of Frankel . The undersigned credits Peters ' testimony in this regard and finds that Frankel made the statement substantially as testified to by Peters •ROBESON CUTLERY COMPANY, INC. 487 were told by Stanley Powell, assistant superintendent of respondent's plant, to see Case in his offices During the course of a conversation which lasted almost 2 hours mostly about unions, Case asked the men why they wanted a union and what he had done to make them want to organize Case said he did not think unions were good for the working man and wanted to know what good it would do them When the men remarked that union goods sold better than non-union made goods, Case said he did not think that was so Case then went on to state that a union was just a money making job for certain men who have no interest either in the company or the employees, but were interested onl" in organizing people to obtain their dues and by that means the organizers earned their livelihood. Case also cited several cases from a book which he had, which in his opinion pointed out that unions did not help the employees. Case then told Mason and Krauss that b_'cause they had signed authorization cards, that did not make them union men and further that they were neither bound nor under obligation to join the Union merely because they had signed cards, unless they wanted to join. At one point in the conversation Case asked the number of employees who had signed up with the Union.' It is the respondent's contention raised in its brief, that any statements made by Case during the conversation with Mason and Krauss were clearly permissible under the doctrine of free speech. While it may well be, that standing alone the statements-might be considered privileged, nevertheless, when coupled with other circumstances, such statements have been held to constitute interference with the rights of employees guaranteed in Section 7 of the Act 10 Viewed in the context of the respondent's entire course of conduct, its dis- couragement of the employees against affiliation with the Union, its disparaging and derogatory statements about unions, its inquiry regarding the number of employees signed up in the Union, the lay-offs hereinafter found to be discrimina- tory, its refusal to bargain with the Union hereinafter found, and its formation, sponsorship and support of the Committee, hereinafter found, Case's statements were clearly coercive and not privileged or permissible' It is clear, and the undersigned finds, that by the activities of Frankel and Case, as found hereinabove, the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8 (1) of the Act. C. The lay-offs In February 1944, the respondent was awarded a government contract to pro- duce 115,000 hunting knives for the U. S. Navy.12 Delivery in accordance with the terms of the contract was to be made, Y/.3 in, February, 1 in March, and the balance in April. In March, the respondent hired 13 new employees, and in April 9, new employees 13 In its effort to continue its civilian production, the 8 Case testified that he called both men to his office at the same time so there would be no question raised as to what one might or might not have said 8 The findings in this paragraph are based upon the testimony of Mason and Krauss. Case did not deny that he discussed unions with these employees As a matter of fact, Case admitted that the substance of his conversation with Mason and Krause in his office, was that he wanted to know if there was sufficient interest in the plant among the men to have an election and a union. The undersigned finds that the statements attributed to Case were made substantially as testified to by Mason and Krauss 10 N L. R. B v. Trojan Powder Co , 135 F. (2d) 337 (C. C. A. 3), cert. den. 320 U. S. 768. 11 See N L R. B. v M E Blatt Company, 143 F. (2d) 268 (C. C. A. 3). "The respondent had awards from the government previously in 1942 and 1943 and had manufactured hunting knives for both the Army and Navy. 13 New employees were hired during the month of April on the following days ; one on April 3; one on April 7 ; four on April 17; one on April 18; one on April 24; and one on April 26. 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respondent fell badly behind in its schedule of delivery to the Navy and as a matter of fact did not meet any of the delivery dates set forth in the contract. Sometime in April, Case conferred with Alfred W. Ferrell, superintendent of respondent's plant, and Stanley Powell , assistant superintendent in charge of production, told them that civilian production would have to stop and to use all employees that could possibly be used on the government contract and to temporarily lay off those employees for whom work could not be found on the government contract. Ferrell and Powell in turn instructed the eight working foremen in the plant accordingly, and further told them that if there were any employees whom they were unable to place on the government work in their own departments, to refer them to Ferrell or Powell for transfer to work in other departments in the plant." According to the respondent's records, seven terminations of employment took place during the month of April for various personal reasons of the employees. Starting with May 1, and up to and including June 1, there were, Case testi- fied, eleven terminations of employment as follows : one for poor health ; one discharged for poor work; and nine for the reason "no work." All mne of the employees who were laid off because of "no work" had signed authorization cards for the Union ; six of the nine constituted the organization committee of the Union.16 On May 6, before the lay-offs of the nine employees because of."no work" began, the respondent employed in its plant 100 persons exclusive of office workers, working foremen, and other supervisory employees.16 According to the Union's records, 51 of the 100 employees had signed union authorization cards, consti- tuting a proportion of 51 percent14 Thus, although the proportion of employees who had prior to May 6, authorized the Union to represent them was 51 percent, 100 percent of the employees who were laid off were union members As the Board stated in the Woolworth case,18 It would be expected that in a selection of employees to be laid off without regard to union affiliation, the proportion of union members among those laid off would approximate the proportion existing in the group from which selection was made . . . The natural assumption would be that in any selection to which the factor of union affiliation was irrelevant, union mem- bership would be distributed among those laid off and those retained as if by the operation of chance. Of course, any combination is a possible result on the basis of pure chance. Variation from the expected does not necessarily establish that the operation of chance has been frustrated by intelligent selection. When, however, the variation is marked . . ., the hypothesis that union membership was irrevelant to the selection gives way to the inference that the selection was made upon a discriminatory basis. 14 The findings in this paragraph are based upon a reconciliatiton of the testimony of Case, Ferrell, and Powell 16 This finding is based on the testimony of Harry Van Scoter which is undenied and credited. Van Scoter was chairman of the organizing committee , and one of the nine employees laid off. The other members of the organizing committee who were laid off were Charles Krauss , Grace Krause , Charles Passamonte, Leroy Mason , and Ray Arnold. 16 This finding is based on Case 's testimony which is credited , and a list of employees for the week May 6, prepared by the respondent and received in evidence as a Board exhibit 1TAlthough the Union' records showed 52 cards, the figure 51 is arrived at because the name Ira Terwillager which appeared on the authorizations was not included on the list of employees referred to in footnote 16, supra. 19 Matter of F. W. Woolworth Co., 25 N. L. R. B . 1362, aff'd 121 F. (2d) 658 (C C A. 2). ROBESON CUTLERY COMPANY, INC. 489 As heretofore found, upon the inception of union activity in the respondent's plant, Case became aware that the union was being organized. He testified that in it small town like Perry, New York, everyone was aware of what was going on. The knowledge on the part of the respondent as to the nature of these activities appears to have been more precise however, than that the Union was carrying on its organizational activities in the plant. Case testified that as to the first meeting of the Union he was informed of it by about 20 people. As to the third and last meeting of the Union, he was able to refer in a conversation with Peters, with exactness, when he stated that it was his understanding that she " was one of the faithful 11" present at that meeting" Powell, testifying as to the Union's activity in the plant, stated that he heard about it from various employees. Ferrell testified you "You couldn't very well walk up and down Main Street with- out knowing about it " With respect to the membership in the Union of Van Scoter, Charles Krauss and Mason and their activity in its behalf, it is clear that the respondent had knowledge prior to their lay-off and the undersigned so finds. As hereinabove related in a conversation with Krauss and Mason, Case asked why the employees wanted a union. As to Van Scoter, Powell testified that he was aware of Van Scoter's activity in behalf of the Union. The afore-mentioned employees together with Grace Krauss, Passamonte and Arnold made up the organization committee of the Union, which openly carried on its organizational activities 20 The under- signed finds that the respondent knew of the union activities of Grace Krauss, Passamonte and Arnold prior to their lay-off. The undersigned further finds that the respondent knew or believed that Howe, Calkins, and Converse were members of the Union Experience evidenced by the Board's consideration of many similar situations over the past several years and a realistic view of the matter. makes it evident that in small plants in a community such as this, union activities and those engaged therein become gen- erally known It is most significant that of its 100 employees, the nine laid off were all union members, including the entire organization committee, and as hereafter found, the respondent's reasons for the lay-offs were inadequate. As was stated by Mr. Justice Douglas in the Link-Belt ease : 21 "The Board was justified in relying on circumstantial evidence of discrimination and was not required to deny relief because there was no direct evidence that the employer knew these men had joined Amalgamated and was displeased or wanted to make an example of them." Having in view (1) the respondent's opposition to the Union as found in Section III, B supra; (2) the respondent's knowledge of union activities and of the indi- viduals actively engaged in such activities; and (3) the excessive proportion of union members laid off, it was incumbent upon the respondent at the hearing to offer proof negativing the inference that the lay-offs were discriminatory. As was said by the United States Circuit Court of Appeals for the Seventh Circuit in the Montgomery Ward case. 22 This inference of discriminatory discharge leaves it up to the employer to give an adequate "explanation of the discharge," even though the burden of proof remains on the Board [i e, upon the ]Board's prosecuting agents], since it is obvious that the reasons of the discharge "lay exclusively within i° See footnote 5, supra. S0 The record reveals that Grace Krauss was the most active woman member of the Union. Passamonte testified that he solicited memberships openly in the plant during lunch hours and at the homes of employees in the evening. Van Scoter testified that Arnold was one of the employees assisting him in organizational activities. 'IN. L. if. B v Link-Belt Company, 311 U. S. 584 22 Montgomery Ward & Co , Inc v N. L. R. B., 107 F (2d) 555 ( C. C A 7) 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its [the employer's] knowledge" ( citing N. L. R. B. v. Remington, Rand, Int., 94 F (2d ) 862 (C. C A. 2) ). The Board does not claim nor does the evidence establish that the lay -offs were not necessary It is the contention of the Board , however, that in making its selections of the persons to be laid off, the respondent took into account and was actuated by considerations related to their union membership and activity. The respondent's answer alleges that the lay-offs were occasioned by reason of changes in production schedules . In addition the respondent contended at the hearing that the lay-offs were brought about because of the limited amount of machinery in the plant and the fact that all machines had to be used for grinding blades for the government contract. The undersigned will now consider the lay-offs of the employees named in the complaint and examine such explanation as the respondent has given for the lay-offs and the manner in which they were effected. Harry Van Scoter: Van Scoter commenced his employment with the respondent in July 1918, and with the exception of two periods of several months duration each, worked continuously until he was laid off in May 1944 In the course of his more than 20 years of experience , Van Scoter testified that he had performed most of the jobs around the plant . Powell admitted that Van Scoter was a very good worker. Van Scoter joined the Union at the inception of union activity, was chairman at the meetings , and was chairman of the organizing committee. Prior to his lay-off, according to Van Scoter's undenied testimony, he was employed in the assembly department as a tang finisher working on jackknife blades, and would alternate this work with assembly work on hunting knives. Van Scoter further testified that about six other employees performed the same work lie did Immediately prior to his lay-off, Van Scoter testified that he was working on a three-bladed knife, on which he had finished two blades . The third blade had not come up from the grinding room and Van Scoter was told by his foreman, Willard Segling, that he would have to come back to the plant to finish the third blade, whereupon Van Scoter left the plant about 11 a m. since apparently he was not assigned to any other work.' Upon his return home, and after talk- ing over with his wife what took place in the plant , they decided , that if Van Scoter was not going to have steady work at the respondent's plant, he had better get other employment . On Friday morning , while on his way to register at the U. S E S. office, Van Scoter stopped at the plant and told Ferrell of his plans. Ferrell according to Van Scoter's uudenied testimony said, "I don't want you to do that." Ferrell then told Van Scoter to come in to work Monday morning to complete the third blade on the knives on which he had been work- ing, and further said, "In the meantime I will talk with some of the other men here and see if they can't transfer one of the other men and give you work." ' Under these circumstances Van Scoter did not proceed to the 13 . S E S office Van Scoter testified that upon his return to the plant the following Monday morning, he completed the work on the third blade in about 3 hours and then asked his foreman, Segl ing, what he was to do next , whereupon Segling told him that he was to be laid off on orders from the office. This order seemed strange to Van Scoter , and he told Segling that Ferrell had promised him work. Segling then told Van Scoter he would have to see Ferrell ae 28 Van Scoter testified that prior to his lay-off, he had been continuously employed for 8 years 24 Van Scoter did not remember whether this took place on Monday or Tuesday. Segling, according to Van Scoter, did not tell him when to come back to the plant m This finding is based upon the uncontradicted, credible testimony of Van Scoter 20 This finding is based upon the undenied, credible testimony of Van Scoter. Segling testified at the hearing as a witness for the respondent but was not questioned regarding Van Scoter's lay-off. ROBESON CUTLERY COMPANY, INC. 491 A<cording to Van Scoter, he then went down to see Ferrell and said, "I thought you were going to arrange for me to have work," Ferrell answered, "Well, Mr. Case has ordered me to lay you off." Ferrell then told Van Scoter that he had heard a rumor that Van Scoter wanted a release, which Van Scoter denied, and Ferrell then said he could have it if he wanted it Ferrell testified that Van Scoter came to him and objected to the fact that he -was to be laid off. Van Scoter, according to Ferrell, felt that Walter Odymala, an employee with less seniority than Van Scoter should have been laid off and Ferrel replied that Odymala was a good employee on the government work, and he (Ferrell) personally felt that Van Scoter was in a better position to stand a short lay-off because he owned a farm and lived and worked on the farm, whereas Odyinala had no protective return except for his labor in the plant. Van Scoter, while not denying that Odymala's name came up in the course of his discussion with Ferrell, did deny that he asked for Odymala's job, and testified that when he was discussing his lay-off with Ferrell lie stated that he could not under- stand how employees in the plant for a year and a halt were kept, whereas he was being laid off and had seniority over these other employees and it was at that point that Odymala's name came into the discussion. The undersigned credits Van Scoter's version. Van Scoter testified that he was not offered any other employment and left the plant; several days thereafter he asked for his release2z and obtained employment elsewhere. Van Scoter also testified without contradiction and the undersigned finds that on occasions prior to his lay-off in May, when work became slack he would he laid off for a day or so. Gi ace Marton Ki ames ; Mrs Krauss first became employed by the respondent about 31j2 years prior to her lay-off in May 1944. She worked continuously during that period of time. Mrs. Krauss testified that for about 21/2 years before her lay-off her work consisted of assembling jack-knives and before that she worked at assembling hunting knives.' Mrs. Krauss signed a union authorization card early in April, became a member of the organizing committee and was active in distributing authoriza- tion cards among the employees and particularly in talking to the female employees about the Union. According to Mrs Krauss' undenied, credible testimony, on May 13,29 at about 11: 45 a. m , she had completed a job on which she was working and reported to her foreman, Segling Segling thought for a moment and said, "I guess there isn't anything more for you to do right now." Mrs Krauss then inquired for how long a period there would not be any work for her and Segling replied that he could not say exactly but would let her know. Mrs. Krauss testified further that Seghng did not tell her to see Powell and she then left the plant. Mrs. Krauss heard nothing further from the respondent until she was called back to work in August. 21 Van Scoter obtained his release on or about May 19. 28 Powell and Segling testified that Mrs Krauss asked for a transfer from her work on hunting knives after a week on that job, because she was not physically fit for that work. Mrs Krauss testifying on cross-examination denied that she was physically unable to perform that work and stated that she was transferred from that job because it was finished It is unnecessary to decide at this time whether Mrs Krauss was not physically lit to perform the work on hunting knives 21/2 years ago The fact remains that she woriied continuously for 21/2 years assembling jackknives apparently without complaint of any physical hardships and that fact alone leads the undersigned to find that Mrs Krauss was physically able to perform a woman's job in the plant at the time of her lay-off. ze This date, according to respondent's records, is when Mrs. Krauss was laid off and was not a regular pay day. 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Leroy Mason; Mason was first employed by the respondent in 1908 and has worked off and on for them since that time; he testified that his total employ- ment with the respondent was from 12 to 15 years, and the last period was from October 1943, until May 12, 1944. Mason testified that he became active in the Union, attended the meetings, and talked to employees soliciting their member- ship; he was a member of the organizing committee. About 2 to 3 weeks prior to being laid off, Mason was one of the employees called by Case to his office,-where a discussion of union activities took place, described fully heretofore in Section III, B, supra Mason testified without contradiction, that he did spring and blade work "0 on pocket and jackknives during most of his employment with the respondent, and that he helped out on hunting knives at different stages of production through the department." According to Mason's undenied testimony, which the undersigned credits, on the day of his lay-off he went to his foreman, Segling, and asked if it was true that several men were to be laid off.32 Segling replied that it was true, and said to Mason, "As you finish up your operations on the job that you are on, you are going to be laid off." Mason asked if that was official whereupon Segling said, "Yes, that is from the office " When Mason finished the job on which he was working, he decided to go over his foreman's head and went down to the pro- duction office looking for Powell to ascertain what was taking place. Powell was out and Mason saw Ferrell and asked if lie was to be laid off Ferrell said "Yes" and they then talked about a release Ferrell refused to give Mason a release on the ground that he was not fired When Mason asked how long lie would be out of work, Ferrell said that he did not know. In answer to Mason's inquiry if he should take his tools home, Ferrell said that was up to Mason, but if he were Mason, he would take the tools home "3 Mason then left the plant and was not called back to work until sometime in July Clwrles Paad Krauss: Krauss started his employment with the respondent in February 1940. He was a bench boy " tor 2? •z years during which time his hourly rate of pay was increased from 35 cents an hour to 523/2 cents Thereafter he learned to fine glaze 35 and continued on that job until his lay-off, May 12. Krauss testified that he joined the Union, attended the meetings and talked with the employees about the Union; he Ni as a member of the organizing committee. Krauss was the other employee, who with Mason was called to Case's office, where a discussion regarding union activities took place, described fully heretofore in Section III, B, supra. This was about 2 to 3 weeks before his lay-off. Krauss testified at about 11 : 30 a in on May 12, he completed the job on which he was working, then went to his loremain, Walter Kemp, and asked what he was to do next. Kemp told Krauss that there was no more work for him and to This work was primarily wheel work and consisted in getting the inside of the springs right for the knife. n Mason testified that at different times during the year 1944, prior to his lay-off, when he was caught up on his own work or if there was a shortage of help , his foreman asked if he would help out on the hunting knife. He helped set up guards, put washers on handles and straightened handles on hunting knives 32 Mason had been told earlier by Van Scoter that Charles Krauss was laid of. a Ferrell testified that Van Scoter was the one employee who came to see him because he was to be laid off. He was not questioned regarding Mason. The undersigned was favorably impressed with the credibility of Mason and his attitude and demeanor on the witness stand and finds that the statements attributed to Ferrell were made substantially as testified by Mason. u The work as bench boy involved the washing, and cleaning of the knives. as In fine glazing the knives are run between wheels to take marks out. It is a part of the finishing process ROBESON CUTLERY COMPANY, INC. 493 lo report to Powell." Krauss did not report to Powell that same day 31 The following afternoon Krauss went to the plant for his pay ; he saw Powell and told him he would be in Monday morning and Powell approved, saying he would try to find something for Krauss to do On Monday morning Powell told Krauss there was nothing for him to do, but if anything turned up he would let him 'know in a few days Powell testified that he offered Krauss a job in the machine grinding room which Krauss refused, and then went out. Powell at times was vague, evasive and his demeanor on the witness stand did not impress the undersigned The undersigned accepts Krauss' testimony as being accurate. Krauss thereafter did not hear from the respondent until sometime in July when he received a letter from Case to return to work's Krauss testified without contradiction that during slack periods in the past, he was never laid off, but was assigned to other jobs in the plant ' Charles J. Passainonte: Passamonte started his employment with the re- ^,pondent in January 1940, and worked continuously until he was laid off on May 12, 1944. Passamonte testified that he joined the Union, attended meetings and was a member of the organizing committee. During the noon hour and in the evenings, Passamonte went to the homes of various employees and talked about the Union in an effort to solicit their membership. According to Passamonte's undenied testimony which the undersigned credits, his experience included bench and grinding work, and polishing on the high speed buff On the day of his lay-off, Passainonte had completed polishing a lot of jackknives at about 10 a. ni, when he was told by his foreman, Walter Kemp, to quit, because he was being laid off.40 Passamonte saw Powell as he was requested to by his foreman, and Powell stated that he thought he might be able to get something for him and would let him know.41 Passamonte testified that he was not offered any other job in the plant even though he came back to the plant at least six times looking for work. About 3 weeks atter his lay-off, Passainonte asked for his release and found employment elsewhere Cassius Howe: Howe testified that he had been employed with the respondent for about 30 years prior to his lay-off on June 1.42 Howe, according to the Union's records was one of the first to join the Union ; he was never very active in its behalf. Howe was an inspector of jackknives. On the (lay of his lay-off, according to Howe's undenied testimony which the undersigned credits, his foreman, Walter Segling, told him there was no more work for him, because the plant had stopped 86 Kemp testified that when he told Krauss to report to Powell, Krauss said, "To hell with it," and then left Krauss denied making any such remark Krauss was a straightforward and convincing witness Kemp was somewhat vague. The undersigned credits Krauss and finds that he did not make the remark attributed to him by Kemp ar Krauss testified that he left the plant at noon and went home He did not return in the afternoon to see Powell because be had some work to do at home. 'Krauss did not return to work until a week or 10 days after the receipt of Case's letter because of illness a" The other jobs consisted of odd jobs including electrical work, pipe fitting and other repair jobs. This shift to odd jobs also happened in 1943 when respondent was working on government orders 10 Passamonte testified that there were other jackknives on the bench to be polished at that time. it Although Powell testified that Krauss was the only employee who came to him to ask for a transfer to work in some other department, he was not questioned regarding Passamonte Passamonte was a thoroughly trustworthy witness and the undersigned credits his testimony 4' The finding as to the date of Howe's lay-off is based upon the records of the respondent as testified to by Case. 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work on pocket cutlery and was going to manufacture only government Rork. He was not offered any other job in the plant, and left. Howe made two or three attempts to obtain work after his lay-off, and was reinstated in August.''` Ray Arnold," Ruby Converse, and Marie Calkins: Arnold was employed by the respondent for 3 years prior to his lay-off on May 12 Arnold was a wheel setter in the finishing department and according to Case was laid off because the respondent had discontinued some of their finishing operations. Walter Kemp, foreman of the finishing department, testified that after Arnold was laid off he took over the wheel setting job himself; thereafter a nevi employee was hired to do this work 46 Arnold obtained a release some time later in May and never returned to the respondent's employ. When Case was asked if the respondent had ever communicated with Arnold to come back to the plant, lie answered "not directly." Converse scatted her employ nient with the respondent on. April 1, 1944, and was laid off May 6. She was employed in the wareroom plating department under the supervision of Max Hoeppner. She was reinstated sometime in July. Calkins had worked for the respondent 8 years prior to her lay-off on June 1. She was employed in the wareroom plating department She was a regular halt day worker, working about 4 to 5 hours per day. Case admitted that Calkins never returned to work in respondent's plant after site was laid off and that the respondent did not have any record of a written communication to her asking her to return.4" Arnold, Converse, and Calkins were members of the Union Arnold was on the organizing committee, was active in soliciting members and boosting the Union among the employees 4' The extent of union activity of Converse and Calkins is not indicated in the record " As noted heretofore, the foremen were instructed by higher management to use all employees they possibly could on the government work and any em- ployees whom they were unable to place on the government work in their own departments to refer them to Ferrell or Powell for transfer to work in other departments in the plant. Powell testified that neither he, nor Case, exercised any supervision over the matter of who should or should not be laid off, and left it entirely up to the foremen Ferrell admitted that lie did not check with the foremen to ascertain what they told the employees when they were laid off. However, in view of the fact that the respondent failed to deity the testimony of Board witnesses that they were told that they were being laid off on orders from the office, the undersigned finds that higher management played a part in determining who was to be laid off. The competency of the nine laid off employees was not questioned by the respondent, nor did the respondent introduce any evidence to i ebut the testimony of Van Scoter, Krauss , Mrs. Krauss, Mason and Passamontc that as a result of their experience in the plant on other jobs, particularly on hunting knives, they had the qualifications to work on the government order. Admittedly, the re- spondent in effecting the lay-offs wholly ignored considerations of plant seniority The record is not clear as to the date of reinstatement. The complaint sets forth the date as on or about July 24 44 Also referred to in the record as A. R Arnold and Arvin Ray Arnold ^ Kemp was rather vague as to the date the new employee was hired, stating that it was "quite a while" after Arnold's lay-off 4e Case testified that he believed Calkins was requested to return but that it would not have been a written request He also stated that since she was a half-day worker, there were few jobs she could accept 47 This finding is based on the testimony of van Scoter and Passamonte which is unde- nied and credited by the undersigned 49 They did not testify at the hearing, Board s counsel stated on the record that they were both working in another city in New York State not neat Perri, and lie did not attempt to biing them to Perry to testify. ROBESON CUTLERY COMPANY, INC. 495 However, the respondent's selection for lay-off of older and more expe- rienced employees is a factor not ordinarily overlooked altogether by employers in like situations, and is one, therefore, which must be considered and appraised in the over-all picture in determining the bona fides of the respondent's action, particularly when coupled with the fact that 22 new employees were hired dur- ing the months of March and April, at the time when Case instructed Ferrell and Powell to use all employees that could possibly be used on the government work, and in view of Case's testimony that experienced help is essential in the manufacture of cutlery. It is also noted that the respondent admitted that a number of the operations in the manufacture of hunting knives are similar to those done on pocket knives." Segling testified that there were about 40 employees in the assembly depart- ment and that practically all or "a good two-thirds of them" worked on civilian production until it was completed. Jobs on the government work were found for all of the employees in the department except Van Scoter, Mason, Mrs. Krauss, and Cassius Howe.50 Segling testified that these employees had caught up on the regular (civilian) work and he had nothing more for them to do, but it was not his opinion that they would not fit into the government work. No testimony was elicited from Segling to explain the reasons for the selection of the employees laid off in his department. Hoeppner, foreman of the wareroom department, was not questioned regard- ing Converse and Calkins, the employees laid off from his department. Kemp, foreman of the finishing department, testified that in the early part of May 1944, his department was working on civilian knij es and Powell told him not to do any more work on civilian knives because of the government contract. There were 12 or 13 employees in his department, according to Kemp, and jobs were found for all of the employees except Passamonte, Krauss- and Arnold. Kemp testified that the employees doing rough glazing were kept and those on fine glazing he sent to Powell" Other than this reason, Keuip's testimony failed to show upon what basis or upon what theory the persons laid off in his department had been selected. The respondent offered no adequate explanation for selecting the employees laid off, other than that the lay-offs were compelled by changes in production schedules and its concentration of all manpower in the plant on the government work The respondent adduced no eN idence as to the ability of the laid off employees, nor any evidence furnishing a basis for comparing the ability of the laid off employees with the ability of those not laid off, despite the fact that it had hired a group of new employees at a time when it was discussing and contemplat- ing the possibility of lay-offs and admitted its need for experienced help The marked and wholly disproportionate selection for lay-off of all union members including the six outstandingly active union supporters and members of the organizing committee at a critical period of organization, is repellent to a conclusion that union affiliation and activities were considered by the respondent a:• irrelevant factors in making its choice The possibility that a combination of non-discriminatory selection and fortuitous circumstances may have brought about that result is so exceedingly remote, that the result achieved, made it 41 This finding is based on Powell's testimony which the undersigned credits in this regard 60 Segling was unable to state the exact number of employees for whom he was unable to find jobs on the government work. This finding is based on Case's testimony regarding the employees laid off because of "no work" during May and up to June 1, inclusive 51 Kemp admitted that Krauss was the only fine glazer in the department . Passamonte was a buffer and according to Kemp , he had no place for him in the department. Arnold set up wheels , which lob Kemp took over temporarily and the respondent subsequently hired a man to do this work 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD incumbent upon the respondent to come forward with an adequate and plausible explanation for its selection of the complainants in contrast to its retention of newer and presumably less experienced employees .' This the respondent has not done. Upon the basis of the record as a whole , the undersigned finds that the respondent utilized the lay-offs to discriminate against the nine named employees in order to discourage membership in the Union. Upon the foregoing facts and the entire record, the undersigned finds that the respondent laid off Ruby Converse on May 6, 1944, Charles Krauss, Charles J. Passamonte, Leroy Mason, and Ray Arnold on May 12, 1944, Grace Krauss on May 13, 1944, Harry Van Scoter on May 20, 1944, and Marie Calkins and Cassius Howe on June 1, 1944, and thereafter refused to reinstate or reemploy Charles J. I'assa- monte, Ray Arnold and Harry Van Scoter because of their union membership and/or activities , and that such action on the part of the respondent constituted discrimination in regard to the hire and tenure of the said named employees, thereby discouraging membership in the Union and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. D The refusal to bargain collcetivelg 1. The appropriate unit The complaint alleges that all the production and maintenance employees except for office, clerical, and all supervisory employees having authority to hire, promote, discharge, discipline or otherwise effect changes in the status of em- ployees or effectively recommend such action constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9 (b) of lie Act. The respondent contended at the hearing and in its brief that the working foremen and the stockroom clerk and shipping clerk should be considered pro- duction and maintenance employees and included in the unit. There is no dispute that the working foremen spend part of the work week in actual production work." Case testified that when new employees are hired, they are assigned to the working foreman in charge of a department, who in turn assigns the employee to his job Although the working foreman does not have authority to hire or fire, he recommends that an employee be fired or trans- ferred from a department as the case may be. The working foremen pass on the employees' work and determine whether it is correctly or incorrectly done. In this plant of approximately 100 employees there are no intervening supervi- sory personnel between the superintendent and assistant superintendent and the working foremen. Foremen meetings are held every week and are attended by the superintendent, assistant superintendent and the working foremen. The working foremen are responsible for the production in their department The undersigned finds that the working foremen are supervisory employees within the usual meaning of the Board's definition and that they shall be excluded from the unit hereinafter found appropriate. The duties of the stockroom and shipping clerks are substantially what is implied by their titles They are hourly paid employees, working substantially the same number of hours and under the same conditions as the production and 52 See N L . R. B. v. Remington Rand, Inc , 94 F (2d ) 862 (C . C. A 2) , F. W. Woodworth Co. V. N. L. R B, 121 F. (2d) 658 (C. C A. 2) See also N L R. B v. Choeago Steel Foundry Co , 142 F. (2d) 306 (C. C. A. 7) ; Montgomery Ward & Co, Inc v. N. L R. B., 107 F (2d) 555 (C. C. A. 7) ; Presa Co v N. L. R. B, 118 F. ( 2d) 937 (App D C ). 5 The record is not clear as to the exact amount of time spent in actual production by the working foremen. Seglmg testified he worked an average of 20 hours a week on pro- duction and Kemp testified he averaged 25 to 35 hours per week. ROBESON CUTLERY COMPANY, INC. 497 maintenance employees, except that they are under the direct supervision of the plant superintendent. In addition to their regular duties of shipping and receiving merchandise, they perform production work on the machines in the plant. The stock clerk works on the wire straightening machine about 6 or 7 hours a week and together with other factory work averages 10 hours a week on production. Although the shipping clerk is not assigned to any particular factory work in addition to his regular duties, he helps out in the factory and averages about 7 hours a week on production work. Evidence adduced by counsel for the Board indicates that there is no valid reason for excluding the shipping and stock clerks from the unit. Upon the basis of the foregoing, and upon the entire record, the undersigned concludes and finds that at all times material herein all the production and maintenance employees of the respondent, including the shipping clerk and stock clerk, but excluding working foremen, office, clerical, and all supervisory em- ployees having authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees or effectively recommend such action, constituted and now constitute a unit appropriate for the purposes of collective bargaining with respect to rates of pay, hours of employment, and other condi- tions of employment, and that said unit will insure to the employees of the respondent the full benefit of their right to self-organization and collective bar- gaining and will otherwise effectuate the policies of the Act. 2. Representation by the Union of a majority in the appropriate unit At the hearing there was introduced in evidence a list of the production and maintenance employees including the working foremen for the week ending May 6, 1944. This list bears 109 names." Eight of the names listed are those of working foremen, heretofore found to be supervisory. The name C. L. Peters, an employee discharged for cause on May 1, also appears, but should not be included. The Board also contended that Chester Kiley, whose employment was terminated May 6, because of poor health, should not be included on the list. Kiley testified that he was employed by the respondent a total of 9 years. In May he was advised by his doctor to lay off because of suspected tuberculosis and on May 6, spoke to Ferrell about it. Kiley returned to work on or about August 8, at the same salary he was getting in May. The undersigned finds that Kiley's lay-off was temporary, because of illness, that he was an employee (luring this period and should be included in the appropriate unit. Thus on May 6, there were 100 production and maintenance employees in the unit herein found appropriate. Board's counsel introduced in evidence a list bearing 52 names of employees who had signed authorization cards and the dates that the cards were signed. The original cards were then offered by Board's counsel to the respondent to be checked. The respondent objected to the admission of this list on the ground that no proof had been made as to the genuineness of the signatures on the authorization cards, the basis of the list." Van Scoter identified 31 of the cards on which his signature appeared as a witness and testified that these cards were signed either in his presence or were returned personally to him after the employee had signed the card. The majority of the remaining cards were identified by the employees who signed them or by employees who had witnessed the signatures of other employees. "The list is numbered up to 111. However, numbers 34 and 35 were omitted, thus leaving 109 names. 61 The respondent objected on the further ground that the cards were not membership but authorization cards. There was no contention that they were membership cards. 692148-46-vol. 67-33 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD No suggestion was made at the hearing that the Union or its representatives had forged the signatures of any of the respondent's employees to the authoriza- tion cards. The respondent attacked the validity of three cards. With respect to the card of Ira Terwilliger," the respondent introduced evi- dence that Terwilliger had not been employed since January at which time he laid off because of illness. There is no evidence that Terwilliger ever returned to the plant or did any work for the respondent since his lay-off. The under- signed finds that Terwilliger was not an employee at the time he signed the authorization card on April 14, and the Terwilliger card will be disregarded. With respect to the card of Anthony Christian, the contention was that he was unable to write and since the card bore the signature "Anthony Christian," it was not valid. Christian testified that he received the card from employee Robert Stratford and since he could not read nor write, he took it home to his wife who filled it out, signed his name with her own as witness, and that he returned the card the following morning. The undersigned finds that the Christian card was valid. The third card, that of Robert L. Stratford, is claimed by the respondent to be invalid because it bore a printed signature although Stratford can admittedly sign his name. It was stipulated at the hearing that if Van Scoter, the individual who obtained the card from Stratford in behalf of the Union were to testify as to the execution of the card and the conditions under which it was obtained by him, he would state that the card was given to him by Stratford in the plant, and when so given was completely filled in with the signature printed. Stratford himself testifying to this incident stated that he had not printed his name to the card but had given it to Van Scoter with the request that Van Scoter himself fill it out, because he did not have a pencil with him and his hands were "black" at the time. While there is some variance in the record therefore as to how and by whom the card was filled out, it is clear from both the stipulation of the parties and Stratford's testimony that in fact he had designated the Union as his bargaining representative and did not at any time repudiate this designation. The under- signed finds that the Stratford card was valid. With the exception of the respondent's contentions regarding the validity of the three cards noted above, the respondent offered no evidence that the signatures on the authorization cards were not genuine." As found hereinabove there were 100 employees in the appropriate unit for the week ending May 6, 1944. Of the 52 authorization cards presented by the Board at the hearing to respondent's counsel for inspection and checking, 51 have been found to be valid designations of the Union. These 51 cards were signed during the period from March 9, 1944 to May 2, 1944, inclusive. Thus on May 2, the Union had been designated by 51 of the 100 employees in the appro- priate unit. The undersigned finds that on May 2, 1944, and at all times material there- after, the Union was and now is, the duly designated representative of a majority of the employees in the aforesaid appropriate unit, and that, by virtue of Sec- tion 9 (a) of the Act, the Union at all such times was and now is the exclusive representative of all its employees in such unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment or other conditions of employment. "This name appears in the record variously as Terwilliger, Perlinger and Perliger. " In N. L. R. B. v. Somerset Shoe Co., 111 F. (2d) 681 (C. C. A. 1), the court placed on the respondent the burden of going forward with evidence to challenge the authenticity of designation signatures "which could reasonably have been checked against the signatures of the employees on respondent's pay roll " See also N. L. R B . v. Service Wood Heel Co., 124 F. (2d) 470 (C. C. A 1). ROBESON CUTLERY COMPANY, INC. 499 3. The refusal to bargain On or about May 8, Kessler met with Case, Frankel and the respondent's counsel at the Union's office in Rochester, New York, to discuss the question of repre- sentation." Kessler testified that the respondent inquired as to the usual procedure in matters of representation and Kessler told the respondent that it could agree to bargain with the Union, it could agree to a card check, it could agree to a consent election or the respondent could be forced into an election." Kessler further advised the respondent that either of these four methods to determine repre- sentation was "perfectly all right" with the Union. The respondent declined to recognize the Union as the representative of the employees, and according to Kessler, stated that it did not think the majority of the employees wanted a union in the plant, and that in their opinion it would be best to proceed formally through the Board." On May 9, the day following the meeting, the Union filed a petition with the Board for an investigation and certification of representatives. On May 11, a second meeting was held at the office of respondent's counsel attended by Kessler, representatives of the respondent, its counsel and a Board Field Examiner. The Board Field Examiner, according to Kessler, tried to arrange a card check or consent election, but the respondent would not agree. The respondent stated that it had no objection to an election if it knew that a majority of the employees wanted an election, but maintained they did not believe the Union represented the majority of its employees. The respondent then told the Field Examiner to proceed with former proceedings. Kessler also testified that he offered to have the cards checked as to membership in the Union ; admittedly they were not shown to the respondent 81 On or about May 22, the Union filed charges of unfair labor practice with the Board, alleging the discriminatory lay-offs of union members discussed in Sec- tion III, C, supra, and the Board so notified the respondent ez By letter dated May 25, the respondent informed the Board that it would consent to an election, provided the election was held promptly. The Union on or about June 13, with the permission of the Board, withdrew its petition for certification. No further conferences were held between the Union and the respondent. The Board has held that it is a bargaining representative's duty, when an employer in good faith questions its majority status, to offer, and it is the employer's duty to accept, some reasonable method for ascertaining the truth of the representative's claim, and the employer's doubt as to designation of the bargaining representative by a majority of his employees must be bona fide.8i 51 This meeting was arranged as a result of correspondence between the Union and the respondent wherein the Union informed the respondent that it represented the majority of respondent's employees and asked for a meeting to discuss the procedure by which the matter of representation could be handled. The finding as to the date of this meeting is based upon a reconciliation of the testimony of Case and Kessler 6D Kessler stated that what he meant by "forced into an election" was where the respondent refused to do anything, at all, the Board would hold a formal hearing, and if it was found that a majority of the employees signed up with the Union, a Board order would be issued ordering an election. 80 The findings in this paragraph are based upon Kessler 's uncontradicted testimony which the undersigned credits. 61 The findings in this paragraph are based upon a reconciliation of the testimony of Case and Kessler. 61 Respondent's counsel stated on the record that a letter was received by the respondent on May 23, from the Board indicating that charges were filed in connection with termina- tions of employment. 03 See Matter of Sanco Piece Dye Works, Inc., 38 N. L. R. B. 690. 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the instant case the Union not only offered to submit to a card check, it also offered to have a consent election held under the auspices of the Board. The respondent on the other hand refused to accept either method to prove majority status, continuing to maintain its belief that the majority of the em- ployees in the plant did not want to be represented by a union, and it clearly was not concerned with learning the facts as to the Union's majority. True the respondent later acceded to a consent election, but only after it had discriminatorily laid off a group of union members, including the members of the organizing committee, who were most active, and the respondent had already been informed by the Board that unfair labor practice charges had been filed. Certainly, under those circumstances it cannot be said that the respondent acted in good faith. To the undersigned it appears that the respondent's statements at the two meetings with the union representatives, taken in connection with all its acts, demonstrate that the respondent was willing to do nothing to satisfy itself whether or not the Union represented a majority and that it never intended in fact to bargain with the Union. As was stated by the court in the case of Rem- ington-Rand,' the respondent "made no effort to learn the facts and took the chance of what they might be." In view of the foregoing and upon the entire record herein the undersigned finds that the respondent on May 8, and May 11, 1944, and all times thereafter refused to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit and has thereby interfered with, re- strained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. E. Formation and dissolution of the Co-Operative Committee On or about August 1, Case called to his office an employee from each depart- ment in the plant and suggested to them the formation of a committee of em- ployees to cooperate with management."' Case told the employees to go back to their respective departments and have the employees select a representative from each department, and in the case where there were more than 10 employees in a department, that department was entitled to a representative for each 10 employees. The selection of representatives was made during working hours in the plant with the result that approximately 10 employees were chosen to the committee. The committee held meetings in the plant during working hours and the employee members of the committee were paid for attending the meetings.BO At these meetings the committee discussed grievances and other matters per- taining to the plant, and according to Case if any matter was of sufficient con- sequence to discuss with management, he (Case), Ferrell, and Powell were called into the meeting. The committee's bylaws were drafted by Case. The committee held four meetings when Case was informed that it was illegal. The day after he received this information, he called the committee together and read a notice of dissolution n to them and also posted the notice on the em- ployees' time clock. The committee did not hold any further meetings. 04 N. L. R. B. v. Remington Rand, Inc., 94 F. (2d) 862 (C. C. A. 2). 06 Case testified that the Union activities or "summer diisturbances " as he described them, resulted in a cessation of cooperation between departments and management , and in an effort to reestablish the spirit of cooperation that previously existed in the plant he thought up the idea of the committee. ee They were paid $1 .00 a meeting. a The notice read : The National Labor Relations Board advises us that the Co -Operative Committee is illegal . It is therefore discontinued at their request. ROBESON CUTLERY COMPANY, INC. 501 Upon the foregoing the undersigned finds that the respondent created, hiomi- nated, and supported the committee and has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III above, occurring in 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 Having found that the respondent has engaged in unfair labor practices, the undersigned will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the respondent discriminated as to the hire and tenure of employment of the following named employees: Charles J. Passamonte Ray Arnold Harry Van Scoter Charles Krauss Leroy Mason Grace Krauss Ruby Converse Cassius Howe Marie Calkins because of their membership and activity in the Union. The respondent has already reinstated the following named employees on the dates set opposite their names : °8 Charles Krauss July 12, 1944 Leroy Mason July 12, 1944 Cassius Howe July 24, 1944 Ruby Converse August 1, 1944 Grace Krauss August 7, 1944 Marie Calkins August 8, 1944 In order to effectuate the policies of the Act, it will be recommended that the respondent offer to Harry Van Scoter, Ray Arnold and Charles J. Passamonte immediate reinstatement to their former or substantially equivalent positions, without prejudice to their other rights and privileges. It will also be rec- ommended that the respondent snake each of the nine afore-mentioned employees whole for any loss of pay he has suffered by reason of the respondent's discrim- ination, 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 discrimination to the date of reinstatement or offer of reinstatement, less his net earnings 6D during that period. Since it has been found that the respondent refused to bargain collectively with the Union, an order requiring the respondent to bargain collectively, upon request, 58 The dates of reinstatement were not clear in the record. The dates given here are those set forth in the complaint. 99 By "net earnings " is meant earnings less expenses, such as for transportation, room and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere. See matter of Crossett Lumber Company, 8 N L. R. B 440. Monies received for work performed upon Federal, State, county, municipal, or other work-relief projects shall be considered as earnings. See Republic Steel Corporation v. N. L. R. B., 311 U S. 7. 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the Union as the exclusive representative of the employees , in the appro- priate unit , with respect to rates of pay, wages , hours of employment or other conditions of employment , is necessary to effectuate the policies of the Act, and will so be recommended. With respect to the domination and administration of the Cooperative Com- mittee already dissolved , no order of disestablishment now appears necessary although notice tb the employees that it will not again be recognized is appro- priate and will be recommended. Upon the basis of the foregoing findings of fact and upon the entire record in the case , the undersigned makes the following : CONCLUSIONS OF LAW 1 International Association of Machinists, A F. of L, affiliated with the Amer- ican Federation of Labor, is a labor organization within the meaning of Section 2 (5) of the Act. 2 By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 3 By discriminating in regard to the hire and tenure of employment of Charles J. Passamonte, Harry Van Scoter, Leroy Mason, Ruby Converse, Marie Calkins, Ray Arnold, Charles Krauss, Grace Krauss and Cassius Howe because of their membership and activity in the Union, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 4. The respondent's production and maintenance employees, including the stock clerk and shipping clerk, and excluding the working foremen, office, clerical and supervisory employees, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 5. International Association of Machinists, A. F. of L., affiliated with the Ameri- can Federation of Labor, was on May 2, 1944, and at all times thereafter, the exclusive representative of all the employees in such unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 6 By refusing on May 8 and on May 11, 1944, and at all times thereafter to bargain collectively with International Association of Machinists, A. F. of L., affiliated with the American Federation of Labor, as the exclusive representative of all of its employees in such unit, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (5) of the Act. 7. The Co-Operative Committee, unaffiliated, was a labor organization within the meaning of Section 2 (5) of the Act. 8. By dominating and interfering with the formation and administration of the Co-Operative Committee until its dissolution, the respondent has engaged in unfair labor practices within the meaning of Section 8 (2) of the Act. 9. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed recommends that the respondent, Robeson Cutlery Company, Inc., its officers, agents, successors and assigns, shall: 1. Cease and desist from : (a) Discouraging concerted activity and membership in International Associa- tion of Machinists, A. F. of L., or any other labor organization of its employees, ROBESON CUTLERY COMPANY, INC. 503 by discriminating in regard to the hire and tenure of employment of its employees or any term or condition of employment ; (b) Refusing to bargain collectively with International Association of Machin- ists, A. F. of L., affiliated with the American Federation of Labor, as the exclu- sive representative of all the production and maintenance employees, including the stock clerk and shipping clerk of the respondent, and excluding working fore- men, office, clerical, and supervisory employees in respect to rates of pay, wages, hours of employment ; (c) Dominating or interfering with the formation and administration of any labor organization of its employees ; (d) Recognizing the Co-Operative Committee or any successor thereto as the representative of its employees for the purposes of collective bargaining; (e) In any other manner interfering with, restraining, or coercing its em- ployees in the exercise of the right to self-organization, to form, join, or assist International Association of Machinists, A. F. of L., or any other labor organ- ization, 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 to the three employees listed in Section V, "The remedy," above, who have not yet been reinstated, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges ; (b) Make whole the nine employees named in Section V, above, for any loss of pay they may have suffered by reason of the respondent's discrimination against them, by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages from the date of the discrimina- tion to the date of reinstatement or offer of reinstatement, less his net earnings (luring said period ; (c) Upon request, bargain collectively with International Association of Machinists, A. F. of L, affiliated with the American Federation of Labor, as the exclusive representative of the respondent's production and maintenance em- ployees, including the stock clerk and shipping clerk and excluding the Working foremen, office, clerical, and supervisory employees, in respect to rates of pay, wages, hours of employment, and other conditions of employment, and if an understanding is reached embody such understanding in a signed agreement; (d) Notify its employees that the Co-Operative Committee, or any successor thereto, will not be recognized for purposes of collective bargaining; (e) Post at its plant at Perry, New York, copies of the notice attached hereto marked Appendix A. Copies of said notice to be furnished by the Regional Director for the Third Region, after being signed by the respondent's representa- tive, shall be posted by the respondent immediately upon the 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. Reason- able steps shall be taken by the respondent to insure that said notices are not altered, defaced or covered by any other material; (f) Notify the Regional Ikrector for the Third Region in writing, within ten (10) days from the date of the receipt of this Intermediate Report, what steps the respondent has taken to comply therewith. It is further recommended that unless on or before ten (10) days from the receipt of this Intermediate Report, the respondent notifies said Regional Director in writing that it will comply with the foregoing recommendations, the National 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Labor Relations Board issue an order requiring the respondent to take action aforesaid. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 3, as amended, effective July 12, 1944, any party or counsel for the Board may, within fifteen (15) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, 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 state- ment of exceptions and/or brief, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. As further provided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of the order transferring the case to the Board SIDNEY LINDNER, Trial Examiner. Dated October 19, 1945. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner 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 bargain collectively upon request with the International Associa- tion of Machinists, A. F. of L., as the exclusive representative of all employ- ees in the bargaining unit described herein with respect to rates of pay, hours of employment or other conditions of employment, and if an understanding is -reached, embody such understanding in a signed agreement. The bar- gaining unit is: all production and maintenance employees including the stock clerk and shipping clerk, and excluding working foremen, office clerical, and supervisory employees with authority to hire, promote, discharge, dis- cipline or otherwise effect changes in the status of employees or effectively recommend such action. We will not recognize the Co-Operative Committee, as the representative of any of our employees for the purpose of dealing with us concerning griev- ances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and we will not recognize it or any successor thereto for any of the above purposes We will not dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it. We will offer to the employees named below immediate and full reinstate- ment to their former or substantially equivalent positions without prejudice to any seniority or other rights or privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. Harry Van Scoter Charles J. Passamonte Ray Arnold ROBESON CUTLERY COMPANY, INC . 505 In addition, we will make whole for any loss of pay suffered as a result of the discrimination, the following named employees who have already been reinstated: Charles Krauss Marie Calkins Grace Krauss Leroy Mason Ruby Converse Cassius Howe We will not in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization , to form labor organizations, to join or assist International Association of Machinists , A. F. of L., or any other labor organization , to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection . All our employees are free to become or remain members of this union, or any other labor organization. We will not discriminate in regard to hire or tenure of employ- ment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. RoimsoN CUTLERY COMPANY, INC. 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 days from the date hereof, and must not be altered, defaced, or covered by any other material.