The M. H. Davidson Co.

142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Direction and Order IT IS HEREBY DIRECTED that, as part of the investigation to ascertain representatives for the purposes of collective bargaining with Acme Staple Company, Camden, New Jersey, at its Camden, New Jersey, plant, the Regional Director for the Fourth Region shall, pursuant to National Labor Relations Board Rules and Regulations, within ten (10) days from the date of this Direction, open and count the ballots of Viola Sharpley, Harry E. Henry, and Catherine Ruff, and thereafter prepare and cause to be served upon the parties a supple- mental tally of ballots, including therein the count of the challenged ballots. IT IS HEREBY ORDERED that, in the event that the ballots of Viola Sharpley, Harry E. Henry, and Catherine Ruff, when opened and counted, do not determine the results of the election, a hearing be held to determine whether or not Howard Edwards and John Sorbicki, whose ballots were challenged in the aforesaid election, were super- visors as of the eligibility date of the election ; and IT IS FURTHER ORDERED that, in the event a hearing is held, the hear- ing officer designated for the purpose of conducting the hearing shall prepare and cause to be served upon the parties a report containing resolutions of the credibility of witnesses, findings of fact, and recom- mendations to the Board as to the disposition of said challenges. Within ten (10) days of receipt of such report, any party may file with the Board in Washington, D. C., an original and six copies of exceptions thereto. Immediately upon the filing of such exceptions, the party filing shall serve a copy thereof upon each of the other parties, and shall file a copy with the Regional Director. If no excep- tions are filed thereto, the Board will adopt the recommendation of the hearing officer. IT Is P+URTIIER ORDERED that, in the event a hearing is held, the above- entitled matter be, and it hereby is, referred to the said Regional Director for the purposes of such hearing, and that the aforesaid Regional Director be, and he hereby is, authorized to issue early notice thereof. THE M. H. DAVIDSON COMPANY and INTERNATIONAL PRINTING PRESS- MEN AND ASSISTANTS' UNION OF NORTH AMERICA, AFL. Cases Nos. 1-CA-4183 and 1-RC-969. May ^9,, 1951 Decision and Order On July 21, 1950, Trial Examiner Arthur Leff issued his Inter- mediate Report in the above-entitled proceedings, finding that the Respondent had engaged in and was engaging in certain unfair labor 94 NLRB No. 34. THE M. H. DAVIDSON COMPANY 143 practices and recommending that it be ordered to cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Ex- aminer also found that the Respondent had not engaged in certain other unfair labor practices and recommended dismissal of the allega- tions of the complaint relating thereto.' It was further recommended that the Board sustain the objections to the election which was held on July 22, 1949, set aside the election, and dismiss the petition in Case No. 1-RC-969. Thereafter, the Respondent filed exceptions to the Intermediate Report, and a supporting brief. The Board 2 has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered -the Inter- mediate Report, the brief and exceptions, and the entire record in the case and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner,3 with the following amplification. The Trial Examiner found, and we agree, that on and after April 11, 1949, the Respondent refused to bargain collectively with the Union in violation of Section 8 (a) (1) and (5) of the Act, and that the subsequent election of July 22 did not represent the free and uncoerced choice of the Respondent's employees and should be set aside. Shortly before April 11, the Union, having been designated by a majority of the employees in the appropriate unit described in the Intermediate Report, wrote to the Respondent, requesting a collective bargaining conference. Upon receiving this letter on April 11, the Respondent replied, in bad faith as its later conduct disclosed, that it doubted the Union's majority claim and declined to bargain collec- tively as requested. At the same time, the Respondent promptly embarked on an exten- sive campaign of further unfair labor practices directed against its employees' right to bargain through the Union, as set, forth in detail in the Intermediate Report. This campaign included questioning employees concerning their union membership and activity and their intended vote at the coming Board election, repeatedly threatening reprisals for supporting the Union, promising benefits for" rejecting the Union, and finally discharging two employees because of the Union. The election resulted in five votes for and six against the Union, with two ballots challenged. On November 14, the Regional 1 As no exception has Leen filed to this recommendation , we shall dismiss the allegations in the complaint relating to these unfair labor practices. 2 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three -member panel [Chairman Herzog and Members Murdock and Styles]. 8 The Intermediate Report contains an inadvertent inaccuracy in that it states that . the Respondent , as a matter of standard procedure, did not , at least until July 12, 1945, delete the union affiliation question from its job application forms " The (late should be July 12, 1949. The Intermediate Report is hereby corrected accordingly 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Director issued a Report, stating that his investigation of objections to the election had disclosed apparent unlawful interference by the Respondent, and recommending that the Board hold a hearing thereon.' No exceptions were filed by Respondent to the Regional Director's report. Accordingly, the Board on November 25, 1949, adopted the report and directed that a hearing be held on the objections. There- after, the General Counsel issued a complaint against the Respondent alleging a preelection violation of Section 8 (a) (5), and violations of other provisions of the Act. The General Counsel also issued a notice of consolidated hearing on the complaint and the objections. After a full hearing in which the Respondent participated, the Trial Examiner. on July 21, 1950, issued his Intermediate Report, as stated above, sustaining the 8 (a) (5) and many of the other allegations, and recommending that the election be set aside. Absent the representation proceeding, uniform Board policy, as detailed in the Intermediate Report, would be to reject the Respond- ent's expressed doubt of the Union's majority, because of the bad faith with which it was asserted, and to find a violation of the Act. Nor does the dissenting opinion dispute this wise policy. It appears to argue, however, that the Union waived its right to complain of the Respondent's unlawful conduct by proceeding to an election with knowledge of that conduct, that the election was valid because the Board would not thereafter permit the Union to withdraw its waiver; and that the Respondent's earlier unlawful refusal to bargain is therefore beyond the Board's reach. We think this a misapplication of the Board's "waiver" principle. Those cases in which the Board has applied that principles have assumed the existence of a bona fide question of representation; no questions of the employer's prior good faith in challenging the union's majority have been ralsed.or litigated. Here, the basic issue is whether there was any genuine question of representation at any time. The Respondent's actions here demon- strate the bad faith of its original challenge of the Union's majority. We hold that, the Respondent's challenge of the Union's majority on April 11 having been in bad faith, no genuine question of representa- tion was raised. We therefore regard the election as a nullity. Furthermore, to apply the waiver doctrine here would require com- plete disregard of the Board's obligation to enforce the public policy against those refusals to bargain which are successful in inducing a union to file a petition-and in inducing the Board, in the representa- tion proceeding, to find a question of representation-in the mistaken The Regional Director further recommended that the challenges await disposition of the objections Denton Sleeping Garment Mills, Inc, 93 NLRB 329, and cases cited therein. THE M. H. DAVIDSON COMPANY 145 belief that a question of representation had in fact arisen. Here, the unfair labor practice which vitiated the election did not occur after a genuine question of representation had arisen , but was the very refusal to bargain which induced both the Union and the Board to conclude, albeit erroneously , that such a question had arisen, and which induced the filing of the petition . In such a situation the Board's statutory obligation to prevent refusals to bargain and to enforce the public policy enunciated by the Act 6 is paramount. The Board cannot permit a possible waiver by a private party to overrule this policy. Although the dissent alludes to the John Deere case,' we find it clearly distinguishable . Here no question concerning representation was pending at the time when the Respondent unlawfully refused to bargain collectively with the Union. On the contrary, it was only thereafter that the Respondent prevailed upon the Union to file its representation petition. We believe that in these circumstances the governing precedent is Joy Silk Mills, Inc., 86 NLRB 1263, where Members Reynolds and Murdock joined in the 8 (a) (5) finding which the Court of Appeals for the District of Columbia subsequently enforced." Order Upon the entire record in the case, the pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that The M. H. Davidson Company, New Haven, Connecticut, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with International Printing Pressmen and Assistants' Union of North America, AFL, as the exclusive representative of its employees in the appropriate unit as found in the Intermediate Report. (b) Discouraging membership in International Printing Pressmen and As'sistants' Union of North America, AFL, or any other labor 6 See Radio Corporation of America, 74 NLRB 1729. where the employer argued that the- election should not be invalidated despite its own extensive unfair labor practices, because the Union knew of these practices before the election but nevertheless chose to proceed with the election In rejecting this argument, the Board pointed out that the employer was trying to immunize ",its own wrongful conduct" ( emphasis in original) Mr. Reynolds ' dissent appears to have hinged upon what he considered the Union ' s "abuses of the Board 's process," a conclusion not supported by the record in this case Similsily, the Board has declined to give effect to other restrictions upon collective barg.nining when outweighed by the policy of protecting the statutory rights of employees. See Bethlehem Steel Co , 89 NLRB 132, and cases cited therein ; J. J. Newberry Co , 88 NLRB 947. ' N. L. R B. v. John Deere Plow Company, 187 F 2d 26 ( C. A. 5), vacating 82 NLRB 69 with respect to the 8 (a) (5) finding 6 185 F 2d 732. 953841-52-vol 94-11 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD organization of its employees, by discriminatorily discharging, laying off, or refusing to reinstate any of its employees, or by discriminating in regard to their hire or tenure of employment or any term or condition of employment. (c) Interrogating employees or applicants for employment con- cerning their union affiliations or activities. (d) By threats of reprisal, promises of benefit, or in any other man- ner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist International Printing Pressmen and Assistants' Union of North America, AFL, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities except to the extent that such right may be affected by agreement re- quiring membership in a labor organization as a condition of employ- ment as authorized in Section 8 (a) (3) of the Act, as guaranteed in Section 7 thereof. 2. Take the following affirmative action which it is found will effectuate the policies of the Act : (a) Upon request, bargain collectively with International Printing Pressmen and Assistants' Union of North America, AFL, as the ex- clusive representative of its employees in the appropriate unit as found in the Intermediate Report and embody any understanding, reached in a signed agreement. (b) Offer to George Platt and Theodore Marak immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges and make each of them whole in the manner set forth in the section of the Intermediate Report entitled "The remedy." (c) Upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time cards, personnel records and reports, and all other records necessary to analyze the amounts of back pay due and the right of rein- statement under the terms of this Order. (d) Post at its plant and office in New Haven, Connecticut, copies of the notice attached to the Intermediate Report and marked Appendix A.9 Copies of said notice, to be furnished by the Regional Director for the First Region, after having been duly signed by an authorized representative of the Respondent, shall be posted by the , This notice shall be amended by substituting the phrase, "A Decision and Order" for "The recommendations of a Trial Examiner " in the caption . If this Order is enforced by a decree of a United States Court of Appeals , there shall be inserted before the words "A Decision and Order," the words : "A Decree of the United States Court of Appeals Enforcing." THE M. H. DAVIDSON COMPANY 147 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. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered , defaced, or covered by any other material. (e) Notify the Regional Director for the First Region in writing, within ten ( 10) days from the date of this Order, what steps the Respondent has taken to comply herewith. IT Is FURTHER ORDERED that the objections to the election which was held on July 22, 1949, be sustained, that the election be set aside, and that the petition in Case No. 1-RC-969 be dismissed. IT IS FURTHER ORDERED that so much of the complaint be dismissed as alleges that the Respondent discriminated with regard to the hire and tenure of employment of Marion Hirsch and Anthony Gambardella, that the Respondent engaged in surveillance of union meetings and activities, and that the Respondent offered, promised, and granted a wage increase to its employees to discourage membership in the Union. MEMBER MURDOCK , dissenting in part: I disagree with the conclusion of the majority that the Respondent violated Section 8 (a) (5) of the Act in refusing to bargain with the Union as the exclusive representative of its employees on and after April 11, 1949. On April 9, 1949, the Union wrote the Respondent , claiming to represent a majority of the employees in the appropriate unit and requesting a bargaining conference. Two days later the Respondent's president orally advised the Union that he did not believe the Union had a majority and would have nothing to do with it. On the same day the Union filed the petition in Case No. 1-RC-969. On June 29, 1949, after an investigation and formal hearing, the Board issued its decision in that case in which it found that a question of representation existed and directed an election to resolve that question . Thereafter on July 22, 1949, an election was held in which five votes were cast for the Union, six against, and two votes were challenged. On July 28, 1949, the Union filed the charges in this proceeding and on the next day filed objections to the election based on the facts alleged in these charges. Meanwhile, at various times from March 1949 through at least July 12, 1949, the Respondent engaged in illegal acts of in- terference and discrimination. Thus it appears that, after a full and formal hearing in a repre- sentation proceeding, the Board found a question of representation existed concerning the employees here involved and directed an elec- tion. The effect of a finding of unlawful refusal to bargain in this proceeding is to penalize the Respondent for having previously ar- 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rived at the same conclusion. In the light of the existence of a repre- sentation question, as found by the Board, I am unable to accept, as do my colleagues, the Trial Examiner's implicitly contrary conclusion of law that "On April 11, 1949, International Printing Pressmen and Assistants' Union of North America, AFL, was, and at all times since has been, the exclusive representative of all employees in the appro- priate unit for the purpose of collective bargaining within the mean- ing of Section 9 (a) of the Act." The Union itself when it filed its representation petition indicated its conviction that a question of representation existed which ought to be resolved by an election. As evidenced by its support of the petition through the Board's processes of investigation, hearing, election and objections to the election, the Union apparently still retains that conviction. My view in this matter is supported by the recent decision in N. L. R. B. v. John Deere Plow Conmpany, 187 F. 2d 26 (C. A. 5, February 13, 1951). The court there, expressly adopting the dissent- ing opinion of Member Reynolds and myself, refused to enforce a Board order to bargain rendered in circumstances similar in essential elements to those appearing here. In that case, Member Reynolds and I stated : "We have been under the impression that if any legal proposition could be said to represent well established Board doctrine, it is the proposition that so long as there exists an unresolved question concerning representation there can be no exclusive bargaining repre- sentative, and hence no legal obligation to bargain." That principle is applicable here with even stronger force. In the John Deere case the parties had agreed to a consent election. Here, the Board itself after formal hearing found the existence of a question of repre- sentation. Besides the basic legal inconsistency in the result reached by the majority there are other considerations which impel me to disagree with that result. After the Respondent's refusal to bargain, the Union had one of two courses of action open to it to establish officially its status as bargaining agent: it could have filed 8 (a) (5) charges or instituted a representation petition. It chose the latter course. I do not mean to imply that the Union should be considered to have bound itself irrevocably to follow the procedure it first initiated. Had it sought a withdrawal of its petition at an appropriate time, the Board would in all likelihood have granted the request. But the Union did not do this. Instead it supported its petition through a hearing and an election. During this period, up to about 2 weeks before the election, the Respondent was engaging in the acts com- plained of by the Union in the complaint proceeding. The Union certainly knew of the Respondent's refusal to bargain and also must have known of the overt acts of interference and- discrimination. Yet THE M. H. DAVIDSON COMPANY 149 at no time before the election did the Union protest the activity of the Respondent nor file charges based on that activity. Rather, it chose to await passively the results of the election. In similar circum- stances the Board has held that the Union could not thereafter raise as objections to the election the acts of the Employer of which it had knowledge.'° That principle is controlling here with the result that the election in Case No. 1-RC-969 must be considered to be a valid and effective election. Having chosen to participate in such election as a means to establish its bargaining status, the Union should not there- after be allowed to recant and seek to pursue a remedy it previously chose to ignore. Nor should the Board disavow a valid election con- ducted under its auspices and proceed to order the Respondent to bargain with the Union regardless of the outcome of that election. The Board has long recognized that good administrative practice decrees that it should not be profligate in the exercise of its functions and therefore it has adopted various safeguards to conserve its ener- gies. Examples of these are the requirement of substantial showing of interest to support a petition and the refusal of the Board to pro- ceed in cases where jurisdiction is present, but to assert it would not effectuate the policies of the Act. The requirement of a waiver before proceeding in a representation matter when a related charge has been filed is also a device of this sort. Similar to this is the firm practice of the Board to suspend the processing of a representation case when a related charge of refusal to bargain is filed. Waivers are not ac- cepted in such cases as they are in situations where other unfair labor practices are concerned 11 This practice is a recognition of the fact that inasmuch as a representation matter and a refusal to bargain proceeding are directed at the same end, it would not be consonant with good administration to allow both to be prosecuted at the same time. By waiting until after the election before filing its charges, the Union avoided this sound policy and caused the Board to engage in fruitless and expensive procedures. It is unimportant whether or not the Union deliberately timed its filing of charges to avoid having action suspended on its representation petition. What is important is that the effectuation of an established Board policy should not be determined by the desire of a charging party as to when it will file its charge. The decision of the majority gives formal sanction to such a practice and can lead only to a diffusion and waste of Board processes. "Denton Sleeping Garment Mills, Inc, 93 NLRB 329, and cases cited therein in footnote 3 n Inasmuch as the majority does not deal with this question, it is not clear whether the Boaid is abandoning this practice or thinks that this case is distinguishable on the facts 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD - For the foregoing reasons, I would dismiss that portion of the com- plaint which alleges an illegal refusal to bargain. In Case No. 1-RC- 969, I would not dismiss the petition, but would process the challenged ballots in the usual manner. Intermediate Report Mr. Joseph Lepie, for the General Counsel. Messrs. Herman 31. Lev#, Leonard L. Levy, and James F. Rosen, all of New Haven, Conn., for the Respondent. Mr. Philip C. Opinsky, of Hartford, Conn., for the Union, STATEMENT OF THE CASE On April 11, 1949, International Printing Pressmen and Assistants' Union of North America, AFL, herein called the Union, filed with the National Labor Relations Board, herein called the Board, a petition in Case No. 1-RC-969 for certification of representatives pursuant to Section 9 (a) and (c) of the Na- tional Labor Relations Act, 61 Stat. 136 et seq., herein called the Act. On June 29, 1949, the Board issued a Decision and Direction of Election ordering that an election be conducted among the employees of The M. H. Davidson Com- pany, herein called the Respondent, in a unit of the Respondent's employees therein found appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. On July 22, 1949, an election by secret ballot was conducted by the Regional Director for the First Region (Boston, Massachusetts) among the employees in the unit found appropriate. The tally of ballots cast at the election showed that of 13 valid votes counted, plus chal- lenged ballots, 5 votes were cast for the Union, 6 against, and 2 were challenged. On July 29, 1949, the Union filed a protest to the conduct of the election and requested that an investigation be made. Thereafter an investigation was con- ducted by the Regional Director. On November 14, 1949, the Regional Director issued his report on objections and challenges. The Regional Director reported that his investigation had disclosed certain apparent illegal conduct on the part of the Respondent-such as interrogation of employees, surveillance of union meetings, threats of reprisal, and promises of benefit-which in his opinion was sufficient to justify a formal hearing on the objections in conjunction with a hearing on an unfair labor practice charge filed by the Union in Case No. 1-CA- 483 He recommended that the Board order a formal hearing on the objections filed by the Union, and that a report on the challenges be held in abeyance in the meantime. No exceptions having been filed to the Regional Director's report within the time provided therefor, the Board, on November 25, 1949, issued its order adopting the report and directing that a hearing be held on the objections. Thereafter, upon the Union's charge filed July 28, 1949, and its amended charge filed September 8, 1949, the General Counsel of the Board, by the Regional Direc- tor of the First Region, issued his complaint, dated February 3, 1950, against the Respondent in Case No. 1-CA-483, alleging that the Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (a) (1), (3), and (5) and Section 2 (6) and (7) of the Act. On the same day the General Counsel, by the Regional Director, issued an order consolidating Case No. 1-CA-483 and Case No. 1-RC-969, and also issued a notice of hearing thereon. Copies of the complaint, order of consolidation, and notice of hearing were duly served upon the Respondent and the Union. THE M. H. DAVIDSON COMPANY 151 With respect to the unfair labor practices, the complaint as amended without objection at the hearing alleged in substance : 1. That from on or about February 1, 1949, to date the Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, by (a) interrogating its employees concerning their union affiliations and activities; (b) warning its employees to refrain from assisting, becoming or remaining members of, the Union, and threatening its employees with discharge or other reprisals if they joined or assisted the Union; (c) en- gaging in surveillance of union meetings and activities; (d) offering, promising, and granting wage increases and benefits to its employees in order to discourage membership in or assistance to the Union; (e) requiring all applicants for employment to state whether they were affiliated with any union; and (f) en- gaging in the conduct adverted to in paragraph 2 and 3 below. 2. That on or about the dates set opposite their names the Respondent dis- criminatorily discharged, and thereafter refused or failed to reinstate, the em- ployees named below because of their union membership or activities : George C. Platt-June 13,1949 Theodore M. Marak-June 14,1949 Anthony Gambardella-June 29, 1949 Marion E Hirsch-June 14, 1949; recalled June 23, 1949; laid off July 5, 1949; recalled July 18,1949; discharged July 19,1949 3. That on about April 11, 1949, and at all times thereafter, the Respondent refused and continued to refuse to bargain collectively with the Union as the exclusive bargaining representative of the Respondent's employees in a unit appropriate for collective bargaining. In its answer duly filed, the Respondent admitted that it was engaged in commerce within the meaning of the Act, but denied generally the allegations of the complaint charging it with the commission of unfair labor practices. Pursuant to notice, a hearing was held at New Haven, Connnecticut, on various dates between February 20 and March 22, 1950, before Arthur Leff, the under- signed Trial Examiner, duly designated by the Chief Trial Examiner. The General Counsel and the Respondent were represented by counsel and the Union by a lay representative. Full opportunity to be heard, to examine, and cross- examine witnesses, and to introduce evidence was afforded all parties. At the close of the hearing a motion of the General Counsel to conform the pleadings of the proof with respect to minor variances was granted without objection. Opportunity to argue orally before the undersigned and to file with him briefs and proposed findings of fact and conclusions of law were extended to all parties. Briefs received from the General Counsel and the Respondent have been con- sidered. Upon the entire record in the case, and from my observation of the witnesses, I make the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The M. H. Davidson Company, a Connecticut corporation, with its principal place of business at New Haven, Connecticut, is engaged in the business of commercial printing and lithography. Approximately 90 percent of the supplies used by the Respondent, amounting to over $100,000 annually, is transported to it from points outside the State of Connecticut. The Respondent's gross revenue from its finished products exceeds $150,000 annually. Over 40 percent 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of such revenue is derived from customers of the Respondent who are located outside the State of Connecticut The Respondent admits that it is engaged in commerce within the meaning of the Act, and it is so found. H. THE ORGANIZATION INVOLVED International Printing Pressmen and Assistants' Union of North America, affiliated with the American Federation of Labor, is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. The Uwton organizes a majority of the Respondent's employees in an appropriate unit The Respondent's plant is composed of a letterpress department, a lithograph or offset department, a letterpress composing room, and a bindery. In March and April 1949, there were 10 employees in the letterpress and offset departments. The letterpress department was composed of Armand Boisvert, Herbert Stein- necker, Andrew Bowen, and Louis Masiello, the last of whom occupied the position of an overseer or working foreman in that department. The offset department was divided into a photo-composing room, in which were employed George Platt, Theodore Marak, and Marion Hirsch, and an offset pressroom, in which were employed Hyman Brenner, Raymond Zalenski, and Anthony Gambardella The offset department had no supervisory employee at the time and its operations were directly managed by Ephrom J. Davidson, the Respondent's president. There is no history of union organization at the Respondent's plant before 1949. In March 1949, Gambardella, a union member before entering the Re- spondent's employ, contacted the Union at the request of several of his fellow employees. In late March and early April several meetings were held with Phillip Opinsky, a special representative of the Union, assigned to direct organi- zational work among the Respondent's employees The Union first took root in the offset department where Gambardella, Marak, Platt, and Zalenski evinced an interest in union organization from the very beginning. At a union meeting held on April 8, all employees in the offset department and the letterpress room were present, except Steinnecker. No effort was made to organize the employees in the letterpress composing room or in the bindery. In its Decision and Direction of Election in Case No. 1-RC-969, the Board found that all pressmen , press assistants , and apprentices ; platemaker, etcher, stripper, cameraman, and offset pressmen and apprentices, and press assistants, employed by the Respondent at its New Haven plant, excluding executives, fore- men, office and clerical employees, guards, professional employees, and super- visors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. As the Board found in that proceeding, the record of which is being considered as part of the record of this case, the named categories of included employees constitute essentially the letterpress and lithographic or offset departments of the Respond- ent's plant.' Although the Respondent in its answer to the complaint in the 1In the representation proceeding the parties agreed that the employees in the letter- press composing room and the bindery should be excluded . The Respondent, however, contended that the employees in the offset department should also be excluded . Overruling the Respondent's contention , the Board stated In view of the complete absence of a bargaining history and the absence of any labor organization seeking to represent the employees in the lithographic department in a separate unit , we find the proposed unit appropriate Matter of The Lord Balti- more Press, Inc., 73 NLRB 811 See also Matter of John L Parks, etc, 81 NLRB 1167. THE M. H. DAVIDSON COMPANY 153 instant proceeding denied that the bargaining unit described above was an appropriate one, it left that issue wholly unlitigated , offering neither evidence nor argument on that point . On the basis of the evidence in the representation proceeding, the finding there made by the Board with regard to the appropriate unit is here adopted and reaffirmed. By April 9, 1949, a majority of the employees in the appropriate unit had designated the Union as their bargaining representative. Documentary evidence was offered at the hearing to establish that five employees-Platt, Marak, Hirsch, Brenner, and Zalenski-signed union application cards on or before April 8, 1949.' Two others-Gambardella and Boisvert-the proof shows, were at that time duly admitted members of the Union in good standing. B. The Union demands but is refused recognition and files a representation petition Under date of April 9, 1949, the Union wrote the Respondent, advising it that a majority of the Respondent's affected employees had designated the Union as their collective bargaining representative, and requesting "an early conference for the purpose of discussing the above matter so that we may arrive at an agreement that will be of mutual satisfaction to all parties concerned." The. letter was received by Davidson on April 11. That same day, Davidson tele- phoned Opinsky whose signature the letter bore.. Davidson advised Opinsky that he did not think the Union represented a majority and that he would not meet with him or have anything to do with the Union. Davidson did not ask Opinsky to submit proof of the Union 's majority, and Opinsky did not himself volunteer such proof, but stated he would refer the matter to the Board. Later that same day, the Union filed a petition with the Board in Case No. 1-RC-969 seeking certification as the collective bargaining representative in the unit found appropriate above. A hearing in the representation proceeding was held on May 25, 1949, the Board issued its Decision and Direction of Election on June 29, 1949, and the election was held on July 22, 1949, with the results already indicated. The violation of 8 (a) (5) alleged in the complaint stems, according to the theory of the complaint, from the Respondent's refusal to meet with the Union as requested in the Union's letter of April 9. The Respondent defends its re- fusal upon three grounds. It urges first that the Union's letter of April 9 cannot be construed as a request to bargain because it "contains no request to bargain collectively , nor any statement regarding pay, wages , hours or conditions of employment." This argument clearly is without substance. Though the letter did not in language formal and precise demand recognition and bargaining rights, its purpose and intent could not reasonably have been misconstrued by Davidson Indeed, Davidson's response to Opinsk^ leaves no doubt that David- son fully understood that what the Union was seeking was recognition as an exclusive bargaining representative and a meeting for the purpose of negotiating a collective bargaining agreement . There are no words of art that must be invoked to fulfill the requirement of a request for recognition that is a condi- tion precedent to an employer's obligation to bargain. In this, as in other con- texts, "Lawyers' formulae formalities and words are not needed " ( Lebanon 2 Contrary to the contention of the Respondent it is immaterial that these employees had not yet been admitted to union membership . It is established by a long line of Board and court decisions that the majority status of a labor organization may be predicated upon application cards . See, e. g, Harris-Woodson Co., Inc, 77 NLRB 819; Nubone Corset Company, Ino, 62 NLRB 322, enfd 155 F 2d 523 ( C. A. 3) ; Lancaster Garment Company, 78 NLRB 934 ; Lebanon Steel Foundry Company v. N. L. It. B, 130 F. 2d 404 ( C. A. D. C.). 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Steel Foundry Co. v. N. L. R. B., 76 App. D. C. 100, 130 F. 2d 404, 407, cert. denied, 317 U. S. 659). It is sufficient that on the basis of all the circumstances the de- mand or request may be sufficiently inferred or implied. Joy Silk Mills, Inc., 85 NLRB 1263. Measured by this criterion the requirement of a request to bar- gain was, it is found, amply met in this case. The Respondent urges next that its refusal was motivated by a genuine and bona fide doubt as to whether the Union represented a majority of the employees in the unit. But the General Counsel questions the Respondent's good faith by pointing to other conduct of the Respondent, to be described below, claimed to have been violative of the law. Since the issue of the Respondent's good faith is one of fact that can be determined only by a consideration of all surrounding facts and circumstances, its resolution will be deferred pending consideration of the Respondent's other conduct alleged to have been violative of Section 8 (a) (1) and 8 (a) (3). The Respondent urges, finally, that in the circumstances of this case it may not be held to have violated Section 8 (a) (5), because the Union failed at the time of its demand to offer proof of its majority status. This argu- ment is really ancillary to the Respondent's second argument, and, like it, will be deferred for later consideration. C. Interference, restraint, and coercion With one exception, the Respondent's conduct claimed by the General Counsel to have been violative of Section 8 (a) (1) occurred between the start of the Union's organizational campaign and the date of the election, and because of its timing bears directly on the question, of whether the Respondent in good faith questioned the Union's majority on April 11, 1949. 1. Employment application forms The exception noted relates to the Respondent's use of an employment appli- cation form which, according to its printed provisions, required applicants to state among other things whether they belong to any union organization. This form had been used by the Respondent for some time prior to the commencement of the Union's organizational campaign, was obviously not inspired by that campaign, and, unlike the other conduct complained of, may not be considered as part of a course of antiunion conduct deliberately designed to defeat the organizational efforts of the particular union here involved. Because this iso- lated issue precedes in chronological order the other events complained of, it would appear best to dispose of it at this juncture. While conceding that the union affiliation interrogatory appeared on its appli- cation forms, the Respondent contends that it did not in fact require job appli- cants to answer that question. According to Davidson, the application form had been used by the Respondent since 1943.but, long before the period embraced by the complaint, instructions had been issued to the clerical employees to strike a line through the word "union" before submitting the form to applicants. The only witness called to corroborate Davidson's testimony was his wife, Ruth, an officer of the Respondent. Mrs. Davidson was unable to state precisely when the instructions were given, but testified at variance with her husband that the form was first put into use in early 1949, not 1943. There was received in evi- dence a tabulation of all application cards on this form on file with the Respond- ent. There were 53 dated application cards, the earliest one being dated Febru- ary 1, 1949, and the latest, February 10, 1950. Of 29 forms dated prior to July 12, 1949, only 9 had the union affiliation interrogatory stricken out in pencil. One of these was nevertheless answered affirmatively by a statement of the 11 THE M. H. DAVIDSON COMPANY 155 applicant's union affiliation. Five cards on which "union" had not been stricken were answered by statements of the applicants' union affiliations. In contrast, all application cards dated after July 12, 1949, had "union" crossed out. There is affirmative evidence from 2 witnesses to the effect that they were required when interviewed to fill out application cards containing the union affiliation ques- tion, without being told that the question need not be answered. Yvonne Torn- berg, a former clerical employee of the Respondent, who had at times handled the application forms, denied while testifying as a witness for the General Counsel that she had ever been instructed to cross out the union affiliation question when delivering the printed forms to job applicants. Some clue as to why the forms bearing later dates consistently' have the union question deleted, while the earlier dated ones do not, is supplied in Mrs. Davidson's testimony that the decision to eliminate all reference to union affiliation was first made after an attorney had been consulted following the appearance of the Union at the Respondent's plant. Upon all the evidence I am persuaded that the Respondent, as a matter of standard procedure, did not, at least until July 12, 1945, delete the union affiliation question from its job application forms. It is true, as the Respondent stresses, that there is no positive evidence that the Respondent considered the answers given as a basis for discrimination in employment, while there is evidence that in at least two instances and perhaps more the Respondent did hire employees notwithstanding their disclosure of union membership. But neither this nor the fact that the Respondent has now omitted the question from its form relieves the Respondent of liability. For even assuming arguendo the Respondent's good faith, it would yet be no defense. The principle is well settled that it is per se unlawful to interrogate employees or job applicants concerning their union membership or activities. Standard- Goosa-Thatcher Company, 85 NLRB 1358; Houston and North Texas Motor Freight, 88 NLRB 1462; Jacksonville Motors, Inc, et at , 88 NLRB 181; Ozark Dam Constructors, et al, 86 NLRB 520. It is concluded that by the interro- gation of job appli'ants as found above, the Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Antiunion conduct beginning with the appearance of the Union at the plant and extending into the preelection period Davidson's illicit concern with the organizational activities of his employees was first revealed on the day of the first scheduled union meeting. As appears from the credited testimony of Marak, not specifically denied by Davidson, be was approached by Davidson on that day and asked whether he had heard anything about a union. When Marak replied that he had not, Davidson said, "If you do hear anything, would you let me know'!" Shortly after receiving the Union's recognition demand on April 11, 1949, Davidson summoned to his office Masiello, Boisvert, Steinnecker, and Bowen, the employees in the letterpress room. After reading to them the letter he had received from the Union, and indicating that he was in an upset frame of mind because of it, Davidson questioned them concerning their connection with the Union. Davidson appeared anxious to determine who among his employees was responsible for calling in the Union. Of the employees summoned to his office, only Boisvert, whose membership in the Union had been disclosed to Davidson at the time he was hired, admitted that he was a union member, and he denied that he had had anything to do with starting a union movement at the plant. Masiello assured Davidson that he was mistaken in believing that the Union 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had been started in the letterpress room, and indicated that union organization originated in the offset department. Davidson appeared satisfied with this explanation 8 Also on April 11, Davidson called to his office, individually, Gambardella, Brenner, and Zalenski, the employees in the offset pressroom, and interrogated them in a similar manner concerning their connection with the Union. Davidson told Gambardella, who made no effort to conceal his interest in the Union, that he was opposed to a union in the plant and that he did not want any union racketeer telling him how to run his shop.4 At about the same time, Davidson told John Finicelli, a composing room em- ployee-as appears from Finicelli's undenied and credited testimony-that he believed Gambardella was responsible for organizing the Union. When Finicelli disagreed, Davidson remarked, "I'll find out and when I do--" By that remark, it is found, Davidson implied a threat to visit economic reprisal upon those responsible for union organization in the plant. On April 12, 1949, Davidson assembled his employees in the plant and ad- dressed them for about half an hour or more on the subject of the Union. His speech was an extemporaneous one. Davidson began by reading the letter he had received from the Union. He commented that he had been deeply hurt by what had happened, and said that he had been unable to sleep or eat since receiving the letter, to which he referred as a stab in the back. He told the employees that he could not understand why they wanted a union in the plant. He noted that he had always been lenient in his treatment of his employees, had endeavored to maintain a family atmosphere, and had allowed them considerable latitude in their freedom to come and go in their observance of working hours. In that connection he added that with a union in the plant lie would feel impelled to observe a more severe policy. Davidson stressed that in the past he had endeavored to keep employees at work during slow periods by transferring them from their regular jobs to other work With a union in the plant, he said, this policy could no longer be maintained, and he would be obliged to lay off men where there was no longer any work for them in their regular job assignments. Davidson pointed to certain privileges and benefits which be had provided his employees, such as smoking and coffee time, group hospital- ization and group insurance. These privileges and benefits, he indicated, would be withdrawn if a union came in, and the employees would be forced to strike to regain them. In the course of his remarks, Davidson spoke disparagingly of the Union, and referred to its representative, Opinsky, as a racketeer. He said he was opposed to having outsiders come in to dictate his shop policy and 3The findings made in this paragraph are based upon credited testimony of Dlasiello, Steinnecker, and Boisvei t. The former two were not members of the Union and were clearly disinterested witnesses. Davidson, while testifying, expressed inability to recall this incident, and denied generally that he had questioned his employees at any time concerning their union affiliation or activities His denial is not credited Boisvert testi- fied additionally, while Davidson denied, that during this interview Davidson stated that if he found out who rtarted the Union "he would fix them, but good " However, Boisvert's testimony indicated some uncertainty as to whether that statement was made at this paiticular interview, and since the other witnesses made no mention of it in their testimony, that portion of Boisvert's testimony is not hete ielied on as a basis for a finding of tact. These findings are based, upon credited testimony of Gambardella, Brenner, and Zalen- ski. Davidson did not specifically refer in his testimony to these incidents, except by way of a general denial that he had ever questioned employees about the Union. His denial as noted is not credited. THE M. H. DAVIDSON COMPANY 157 tell him how to run his plant. He said be had always operated his plant as an open shop and would endeavor to continue to run it as such. He went on to say lie would sooner sell his plant or close its doors than have a union come in to tell him how to run his business. Finally, Davidson told the employees he was working on a new "shop policy"' which he expected shortly to be in a position to submit to the employees.' Immediately after the speech, the employees, with the permission of David- son, held a meeting of their own at the plant to consider what they should do about the Union. Harry Marks, a supervisory employee in the composing room, who was present at the meeting at the invitation of the employees, expressed his opposition to the Union. Among those who spoke in favor of the Union were Platt, Marak, and Gambardella It was decided to have Gambardella arrange'for a further meeting with Opinsky, the union representative, for the purpose of determining precisely what the Union had to offer so that it might be compared with the "shop policy" Davidson said lie was about to submit. The union meeting was held on April 14 Marks and Masiello were among those present at the time, with the consent of the other employees. At the meeting, it was voted that the employees would present a common front whatever their ultimate determination might be, whether to adhere to the Union or to abandon the Union and go along with Davidson's "shop policy." At the meeting's conclusion, Platt, who was to return to the plant that night, volunteered to see Davidson and report to him with regard to the employees' decision. When later that evening Platt reported to Davidson the decision reached at the union meeting. Davidson told Platt that he could not see why Platt wanted to join a union, since he had the most to suffer The conversation, as appears from Platt's testimony, credited in this respect, continued: I asked him why He said, "Because I am going to have to hire a journey- man in your place and you will have to be his helper." I said, "Let's be fair." I said, "Don't you think I am capable of being a journeyman now." He said, "Yes, I do." I said, "Why don't you pay me?" He said, "Because the Government is paying you " [Platt at that time was concluding a training period under the G I training program.] I said, "I am not working for the government, I am working for you." He said, "I won't have a union in here anyhow. I want to tell the fellows I am going to sell the plant before they come in " He said, "I have a quarter of a million dollars invested elsewhere." I said, "If you want to tell that to the 5 Although the record does not reveal the details of the "shop policy," there is testimony by Davidson that he interpreted this term as an "inside union." 6 The findings in this paragraph are based upon a synthesis of credited testimony of Platt, Matak, Hirsch, Gambardella , Masiello , Brenner, Zalenski , and Boisvert Davidson denied that in the course of his remarks lie made any threats to close the plant or to withdraw existing benefits and privileges Davidson's denial is not credited The testi- mony of the 'General Counsel's witnesses , some of whom, such as Masiello, had no interest in the outcome of the case , and others of whom, such as Brenner, Zalenski, and Boisvert, were still employed by the Respondent, were in the main mutually corrobora- tive Davidson's,testimony has been found unreliable in other respects Other evidence in the record indicates the likelihood that Davidson, speaking at the time extemporaneously and with much feeling did make the remarks Thus Yvonne 't'ornberg, a former office employee, testified without contradiction that while she was at the office she heard David- son on a number of occasions say to other officials of the Respondent ( whom she identified) that he would close or sell the shop before allowing a union to come in , because he felt that with a union in the plant the men would take advantage of him and prevent him Li om opei atmg his business as a piofitable venture 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fellows, you tell them." I said, "I don't have to worry about a job, I can go back to City Print or Columbia." He said, "That is what you think. I will blackball you in every shop in the City."' Threats to close the plant were also made by Davidson to other employees on subsequent occasions. Thus Hirsch testified credibly, and it is found, that on one occasion about the end of April, Davidson, engaging her in a conversa- tion at her work table with regard to the Union, told her that "the Union isn't any good and he would close down the doors before he would have a Union in the place." Thus, too, Boisvert testified credibly, and it is found, that Davidson told him some time prior to election that if the Union won the election, he (Davidson) would move to his brother's place in Hartford. This was not the only type of threat made by Davidson. Marak testified that on one occasion in the latter part of April, he asked Davidson for a raise. Davidson told him that he would have to wait for that until the union activity was over. Davidson then interrogated Marak as to what the Union was doing and as to what Marak's own attitude toward the Union was. When Marak in the course of the conversation stated that he could give Davidson no information with regard to those responsible for starting the Union, Davidson said, as ap- pears from Marak's credited testimony, "if he ever got a hold of the rats that started it he would give them the business."' There is also evidence reflecting that on a number of occasions Davidson made implied promises of benefit to employees if they would support him against the Union. Thus, Platt testified without contradiction, and it is found, that David- son, while questioning him about the Union after April 14, 1949, stated in effect, "Well, remember, I treat everybody right that sticks with me." Zalenski testi- fied, likewise without contradiction, that while discussing the Union with Davidson, he told Davidson that for him "the only thing that was involved was dough-money-and I had to see what the Union was going to give me, and what the other deal [the shop policy] was going to give me." Referring to himself, Zalenski added, "I have to take care of the kid." To that Davidson replied, "Don't worry, I'll take care of the kid." In addition to those already mentioned,' the record discloses other instances of employee interrogation by Davidson with regard to their activities or interest in the Union. As the election approached, Davidson made an effort to determine in advance how the employees' votes would fall. Zalenski testified credibly, and it is found, that about 21/2 weeks before the election, Davidson asked him how he stood, indicating that he wanted this information so that he might know precisely how the election would turn. Boisvert testified, and it is found, that about 2 weeks before the election, Davidson directed a somewhat similar inquiry to him, asking him how he felt about the Union. Steinnecker testified, and it is found, that before the election, Davidson told him that he knew how 7 Davidson denied generally that he had ever threatened any employees with blacklisting or the closing of his plant , but did not otherwise specifically advert to or deny Platt's account of his conversation . For reasons already indicated , and because other witnesses whom I consider reliable testified to like statements , I do not credit Davidson ' s denial with regard to threats to close the plant. Nor do I credit his denial that he threatened to blacklist Platt at this time. Other evidence in the record indicates that Davidson's frame of mind at about that time was such as to prompt him to make such a statement in a heated discussion. Thus Masiello, a disinterested witness, testified without denial that in a conversation with Davidson around that time, Davidson told him that "the ones that started the Union he's going to blackball them all over New Haven." e Masiello testified that a statement of similar import was made to him by Davidson at about that time. Davidson's denial that he had ever made any such statement is not credited. THE M. H..DAVIDSON COMPANY 159 individual employees would vote in the election. Davidson, the record shows, knew that the election would be a close one. Thus Brenner testified that on one occasion Davidson expressed the belief that the election would turn on one vote. Masiello testified that on a number of occasions before the election, Davidson spoke to him about how he expected the votes to fall. According to Masiello's uncontradicted testimony, Davidson had Platt, Marrak, Hirsch, Gam- bardella, and Boisvert listed as those who would vote in favor of the Union; ,Zalenski as in doubt; and Steinnecker, Bowen, Brenner, and Masiello voting for the Respondent' On the basis of the foregoing, it is found that the Respondent during the period here in question interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act, and thereby vio- lated Section 8 (a) (1) of the Act. In making this finding, the following specific incidents are relied upon: (a) Davidson's interrogation of Marak concerning union activities in March 1949; (b) Davidson's interrogation of the letterpress room employees as a group on April 11, 1949; (c) Davidson's individual ques- tioning of Gambardella, Brenner, and Zalenski concerning their connection with the Union on the same day; (d) Davidson's statement to Finicelli at about the same time, threatening to visit economic reprisal upon those responsible for organizing the Union; (e) Davidson's speech to the employees on April 12, 1949, in which, among other things, he threatened to enforce a stricter work policy if the Union came in; threatened the elimination of certain existing privileges and benefits, such as coffee time, group insurance and hospitalization, and intimated that he might sell his plant before submitting to an outside union; (f) Davidson's threats to Platt on April 14, 1949, with regard to selling his plant and blacklisting; (g) Davidson's statement to Hirsch that be would close his doors before permitting a union to come into the plant; (h) Davidson's similar threat to Boisvert; (i) Davidson's threat to Marak to "get rid of the rats that started the union" ; (j) Davidson's implied promises of benefit to Platt and Zalenski on separate occasions that they would be treated right and taken care of if they supported him as against the Union; and (k) Davidson's interroga- tion on other occasions of employees, including Platt, Marak, Zalenski, and Boisvert concerning their union interest, activities. and position in the forth- coming election. 3. Alleged interference, restraint, and coercion not proved The complaint alleges, in addition, (a) that the Respondent "kept under observation and surveillance the meeting places, meetings and activities of the Union or the concerted activities of its employees" and (b) that the Respondent "did offer, promise and grant a wage increase to its employees for the pur- pose of discouraging membership in or assistance to the Union." It would serve no useful purpose to detail here the evidence adduced by the General Counsel to support, and by the Respondent to refute, these specific allegations of the complaint. It is sufficient to say that upon all the evidence I am not satisfied that there is substantial evidence to sustain them. Consequently I shall recom- mend their dismissal. 9 As has been noted, at the election five employees voted for the Union ; six against ; and two ballots were challenged. The challenged ballots were those of Masiello, who was challenged by the Union on the ground that he was a supervisor, and Platt, who was challenged by the Company on the ground that he had been discharged. At the time' of the election, the Respondent had on its payroll in addition to those named above, two other employees-George Apotria and Stanley Warren=-who had been hired in May to work in the photo-composing room. , 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. The discrimination issues 1. Introduction On June 13, 1949, the Respondent laid off George Platt ; on June 14, Theodore 'Marak and Marion Hirsch ; and on June 21, Anthony Gambardella. Marion Hirsch was recalled to work on June 23, 1949, laid off again on July 5, 1949, again recalled on July 18, 1949, and finally laid off on July 19, 1949. The other employees were never recalled to work after their original layoff dates. Only Platt was formally discharged, on June 17, 1949, after his layoff, allegedly for insubordination. The General Counsel alleges, and the Respondent denies, that each of these employees was discriminatorily discharged on or about their respective final layoff dates, and thereafter discriminatorily refused reinstate- ment. 2. The termination of employment of Platt, Marak, and Hirsch a. Background Platt, Marak, and Hirsch were all employed in the photo-composing room of 'the Respondent's offset department. Platt, who had gone to work in March 1948 .under the G. I. training program, was primarily an offset cameraman, but also at times worked on other operations in the photo-composing room Marak, who was employed in May 1948, worked as an offset stripper and platemaker Hirsch, first hired in October 1948 as a temporary employee in the Respondent's bindery and later given a regular job in the photo-composing room, worked as an appren- tice or assistant offset stripper and opaquer. In March and April 1949, when the Union organized the Respondent's employees and demanded recognition, these were the only employees in the photo-composing room. As has been noted, all three joined the Union. Platt and Marak were among the first to become interested, attending with Gambardella and Zalenski the first union meeting, and, along with other employees, all subsequent meetings as well. Hirsch was among the last to join the Union. Apart from her attendance at several of the union meetings, her role in organizational and concerted activities among the employees appears to have been completely passive. Platt and Marak, while not active in soliciting other employees to join the Union, were outspoken in favor of the Union at the employee meeting which followed Davidson's speech, and also took an active part at the April 14 union meeting at which the employees voted to present a common front on the question of union organization or a "shop policy." In arranging for the employee meeting held on the plant premises on April 12, it was Platt who acted as the spokesman for the employees. It was also he who reported to Davidson the decision reached at the April 14 union meeting. The record reflects that Davidson suspected Platt and Marak of playing prominent parts in the union organization. Thus Harry Marks, foreman of the composing room, testified without denial, and it is found, that after attending the union meeting of April 14, he told Davidson that Platt and Marak had done most of the talking and were probably the persons most responsible for starting the Union. Davidson at that time responded that he thought so, too. Davidson admitted while testifying that both Marak and Masiello had led him to believe that the Union had its impetus in the offset department. As appears from Masiello's testimony, Davidson more particularly localized responsibility for union organization in the photo-composing room • of that department Masiello testified that during a discussion with Davidson con- cerning the Union a few days after at the April 14 union meeting, Davidson remarked that "he thought he had the boys just where he wanted them and he THE M. H. DAVIDSON COMPANY 161 was going to shove it up their . . . and break it off." Then, referring, specifically to the platemaking ( photo-composing ) room, Davidson added that he was "going gradually to get rid of it." Although Davidson denied making the specific remarks attributed to him, Masiello 's testimony is credited. Else- where in his testimony, Davidson admitted that his decision to lay off Platt and Marak was reached in April 1949. Though Davidson testified that his decision was influenced by factors wholly unconnected with their union or concerted activities, the coincidence of that decision with the appearance of such activities, when considered in the light of other surrounding circumstances , cannot be considered as without significance. In May 1949 the Respondent added two employees to its staff in the photo- composing room. On May 2, it hired George Apotria as an assistant platemaker, and on May 16, 1949 , it hired Stanley Warren as a stripper . Davidson testified that Apotria and Warren were hired at the request of Marak and Platt to relieve the work load in that room. This Marak and Platt denied. Though I credit their denial, I do not find, as suggested by the General Counsel , that the services of additional employees were not actually required in the photo-com- posing room at that time The record reflects that at times in the past the Respondent had employed four-though never five-employees in this room, and that the older employees had been putting in overtime hours before Apotria and Warren were hired . It is noteworthy , however, that for several months before Apotria and Warren were employed , the Respondent's volume of business had been declining , and that overtime work in the photo-composing room seems always to have been the rule rather than the exception. At about the time Platt, Marak, and Hirsch were laid off in June, Warren- who up to then had worked on a part-time basis-was also laid off. Apotria, however, was not. Davidson explained that Apotria was retained to perform emergency platemaking jobs, and that he was retained in preference to Marak - because his hourly rate was less. About 4 days after Platt was laid off, the Respondent hired Herbert Spaeth as an offset cameraman , the classification previously occupied by Platt. Spaeth thereafter worked continuously in that position until late September when he voluntarily quit. The Respondent recalled Warren for about 2 days beginning July 5, and later permanently beginning on July 21 , 1949, the day before the election . Warren is still working at the Respondent's plant today , performing with Apotria approximately the type of work that Marak had done before his layoff. On July 5, the Respondent hired E. Roberts , an offset stripper and cameraman, as a working foreman in charge of the offset department , and he also has since remained continuously in the Respondent's employ. As a result of these personnel changes, the entire staff of the Respondent's photo-composing room, as it existed at the start of union organization in April, has been displaced by newly hired employees. With the foregoing as a general background against which to appraise the Respondent's action against all three, we turn now to consider the individual cases of Platt, Marak, and Hirsch. b. George Platt Platt, when laid off on June 13, was told that his layoff was a temporary one for about a day because no work was available for him. On June 16, Platt called at the plant with Marak, and was told by Davidson that there was still no work available, except a few camera shots which he was going to send to an outside firm. At that time, Davidson complained to Platt, whose work had 953841-52-vol 94-12 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD never been criticized before, about a job that had been performed about a month before. Davidson advised Platt and Marak to look for other jobs. He told them that he was looking for a working foreman to supervise the offset depart- ment; that if the working foreman were a cameraman, Platt would be replaced; if he were a stripper, Marak would go ; and if both got other jobs, he might hire a combination man. When Platt charged that Davidson was seeking to get rid of them because of the Union, Davidson replied, "You think your way. and I'll think mine." What Davidson did not tell Platt on June 16 was that a day or two before he had interviewed Spaeth and arranged to have him come to work as a camera- man beginning on June 17. Davidson's explanation that he had hired Spaeth on a temporary basis to try him out as a working foreman was not convincing and is not credited. The rate paid Spaeth-$1.85 an hour as contrasted to the $2.75 rate subsequently paid Roberts who was hired as a working foreman about 2 weeks later-was in line with the rates paid by the Respondent to production workers rather than that paid to supervisory employees. Although claiming that it was his intent to test out Spaeth as a supervisory employee, Davidson admitted that in fact he never gave him any supervisory work to perform. Moreover, Davidson admitted at one point of his examination that he never told his employees that Spaeth was coming in as a supervisory em- ployee ; and though he later contradicted himself and said he did, his testimony in that respect was denied by employees who testified on that point and is not credited. Finally, Davidson's admission that he continued to look for a working foreman after hiring Spaeth is at .variance with his claim that Spaeth was hired as a supervisor. Although I believe that Davidson was then in good faith seeking a working foreman, I do not believe that Davidson intended to or did hire Spaeth for that position. On the contrary, I am persuaded and find that Spaeth was originally hired as a replacement for Platt with the intent of terminating Platt's employment to Platt was not formally discharged until the afternoon of June 17, when, according to the Respondent's claim, he engaged in insubordinate conduct. There is a conflict in the testimony as to what occurred at the time. Platt's version is substantially as follows : Upon his arrival at the plant that afternoon to pick up his paycheck, he discovered Spaeth at work on the camera. Stepping into the doorway of the private room shared by Davidson and the salesmen, Platt protested Davidson's action in using a new employee to operate the camera after having promised him only the day before that he would be recalled if work materialized. Responding that he had a right to try out another man on the job; Davidson added that he was not going to permit Platt to tell him how to run his business. When Platt replied that he was merely trying to protect his job because he had a family to support, Davidson brusquely told Platt that he didn't like Platt's attitude and that Platt was fired. Davidson's version is somewhat different. He testified : On the occasion in question he was seated in his office engaged in a conference with Raymond Romano, the Respondent's sales director. Platt burst in uninvited and yelled, "What the hell are you trying to do here, putting some one else on my job?" Davidson thereupon reminded Platt that it was his business and that he had already warned Platt that he was going to get some new people to fill loopholes in the place. Platt remarked, "That is the trouble with all your kind, you don't want to give anybody else a chance to live." This remark Davidson, who 10 This finding is buttressed by the testimony of Reuben Moore, the Respondent's account- ant, that on June 16, 1949, he was told by Davidson that he had gotten rid of the men in his photo-composing room who were keeping his labor costs up. THE M. H. DAVIDSON COMPANY 163 is Jewish, says he interpreted as an anti-Semitic statement , and because of it and Platt's generally offensive attitude he told Platt right there and then that although he had been merely laid off up to that time , he now was fired for insubordination. Both sides called supporting witnesses. Yvonne Tornberg, a former office employee who worked in the outer office and who, I find, was in a position to overhear the conversation , corroborated Platt's version, including his denial that he made the alleged anti-Semitic statement attributed to him. The Respondent called three. One, Romano, supported Davidson's testimony with respect to Platt's opening remark on entering the room and his alleged anti-Semitic state- ment. But, as to the other details, Romano's testimony was either at variance with Davidson's or. disclosed lack of recollection . The second, Ruth Sullivan Davidson, the wife of Davidson and the Respondent 's secretary, testified that although she was in the outer office at the time, she could only hear Platt's opening remark using the word "hell," and nothing more . The third , Raymond Valla, proprietor of a neighborhood grocery store , testified that about that time, although not necessarily on the same day, Platt came into his store and made a derogatory anti-Semitic remark concerning Davidson . He testified, however, that he did not report that incident to Davidson until about the time the hearing in this case began. On the basis of all the evidence on this point , as well as from my observation of the witnesses , I do not believe that Platt immediately before his discharge made an anti-Semitic statement as attributed to him by Davidson, and I credit Platt's denial in that respect ." I do credit, however, the testimony of Valla, that Platt made a derogatory anti-Semitic statement concerning Davidson on another occasion, but find that Davidson did not learn of this until long after the discharge. But even had I resolved the conflict differently , I still would not find that Platt was discharged for the reasons asserted . As I have indicated above, Platt's em- ployment was in fact terminated prior to the time of his alleged insubordination. The occurrence on June 17 , I am persuaded , merely provided the Respondent with a pretext to formalize action already taken. In a letter to the Regional Office, dated August 3, 1949, the Respondent , referring to the charges filed by the Union with regard to Platt, stated , "This man was temporarily laid off for lack of work in his department. He was not fired until he was guilty of insubordination ." That, too, was substantially Davidson's position when he was called as an adverse witness by the General Counsel at the opening of the hearing to explain the action taken by the Respondent with regard to Platt and others. But as the hearing progressed the Respondent from time to time shifted its position and added to its defenses. The added defenses, all essentially incon- sistent with the Respondent's original position, are found not to be substantiated on the record as a whole. Thus, at one point, Davidson asserted as a reason n In thus resolving this conflict , I have been guided in part by the following considera- tions: ( a) Tornberg who corroborated Platt was a wholly disinterested witness with no apparent bias in the case. (b) No claim appears to have been made prior to the hearing that Platt was discharged for making an anti-Semitic remark . (c) Mrs Davidson testified that when her husband told her to fill out a separation notice stating that Platt had been discharged for "insubordination," he said nothing about any anti-Semitic remark. (Al- though Mrs. Davidson, after being excused as a witness , was recalled following a recess to testify that Davidson did mention it to her that evening at home , her testimony at that point was unconvincing.) ( d) Davidson testified that shortly after Platt was discharged, he recommended him for employment to Mr. Drobkin of Columbia Printing Company. I do not think he would have done so, had he in fact discharged Platt for anti -Semitism. 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for the layoff action that Platt was unable to get along with Marak and the pressroom employees . Davidson , however, made no effort to support his general assertion by specific evidence. And there is credited testimony of employees to the contrary. Elsewheie, Davidson asserted that Platt was an unsatisfactory worker and that it was his inefficiency and poor workmanship, along with that of the other employees involved, that caused the lack of work which necessitated his layoff. According to Davidson, Platt's inefficiency had been apparent for a long time, and he had been retained only because employees of that type were scarce and it had been impossible to replace him. The Respondent's contention that Platt was inefficient is refuted in a number of ways. Platt's testimony that before his layoff he had never been criticized for poor work was not specifically denied. During his employment Platt was granted a number of wage increases. In the monthly reports filed by the Respondent with the Veterans Administration, Platt's work was uniformly described as "satisfactory," and at no time were any complaints registered concerning his work, conduct, attitude, or progress More- over, Davidson admitted under cross-examination that he had told the Board's field examiner who investigated the charge that Platt was a satisfactory worker. And while appearing as an adverse witness at the opening of the hearing, David- son testified that he laid off Platt not because he was an unsatisfactory worker, but because of lack of work and that "definitely" was the only reason. We come back, then, to the Respondent's original position that Platt was temporarily laid off for lack of work and thereafter discharged for insubordina- tion I have no reason to doubt that on June 13, when Platt was told to lay off the succeeding day, there was in fact no work for him. But I am convinced that this condition corrected itself by the time Spaeth was given steady work on Platt's former job. I am also convinced that when the Respondent laid off Platt, it intended, not a temporary layoff, but a final termination of his employment.12 Since, as I find, Platt's layoff was in fact a discharge, there is clearly no merit to the Respondent's contention that Platt was subsequently discharged for insubordination. The Respondent has failed adequately to explain Platt's discharge upon a nondiscriminatory basis. They key to its motivation must be sought elsewhere. It is to be found, I am persuaded, in Davidson's attitude of opposition to the Union as revealed by his acts of interference, restraint, and coercion noted above; in his belief that Platt was among those principally responsible for union organization ; in his awareness that the forthcoming election would be a close one, turning possibly on one vote, and, more particularly, in the threat voiced by Davidson to Masiello in April that he was going to get rid of the boys in the platemaking department. The fact that action in execution of that threat was withheld from April to June does not compel a contrary conclusion, par- ticularly in light of Davidson's admission that he decided to lay off Platt and Marak in April, but was unable to do so until June because of the scarcity of replacements. On the entire record, I conclude and find that Platt was dis- charged on June 13, 1949, because of his union and concerted activities or sup- posed activities, and that the Respondent by thus discharging Platt, and by its failure thereafter to reinstate him, discriminated with respect to his hire and 12 There are many circumstances in the record pointing unmistakably to this conclusion. Some have already been noted , such as Davidson 's interview of Spaeth a day or two after Platt's layoff, the testimony of Davidson's accountant that Davidson told him on June 16, 1949, that lie had gotten rid of men in the photo -composing room , and Davidson's advice to Platt and \larak , also on June 16, that they seek other positions , advice not normally given employees when only a temporary layoff is contemplated. Additional evidence is to be found in Davidson 's admission while testifying as an adverse witness that he had sought out Spaeth for the job in anticipation of getting rid of Platt. THE M. H. DAVIDSON COMPANY 165 tenure of employment, thereby discouraging membership-in the Union and inter- fering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act" c. Theodore Marak Marak, when laid off on June 14, was told that it was to be for 1 day. On the evening of the next day, he received a call not to come in the next morning. On June 16, he called with Platt to see Davidson. What occurred at that meet- ing has been described above. Marak, like Platt, was advised at that time to seek another job. He was, however, told that if any work came in, he would be called. During the last week of June , Marak again called to see Davidson seek- ing woi k. and was told by Davidson that he had no idea when he might be needed. Davidson at that time again advised Marak to accept another job. Marak made clear, however, that although he was considering other offers, he would be available to Davidson if Davidson wanted him . On July 5, Marak began working at another job. The Respondent never contacted Marak to return following his initial layoff. During all this time , however, the Respondent retained Apotria, who had not been hired until May, and who, it appears, was not as experienced and capable a worker as Marak On June 17, the Respondent hired Spaeth who worked steadily thereafter Beginning on June 23, the Respondent recalled Hirsch, an employee junior in service and less capable and experienced than Marak, for a 2-week period At about the time Hiisch was again laid off, the Respondent put on Roberts who thereafter worked steadily as a working foreman. Warren, who had been hired in late May, was recalled temporarily during the week end- ing July 6, and was recalled for steady work beginning on July 21 , the day before the election It thus appears that starting with June 23, the Respondent con- sistently maintained a staff in its photo-composing room of from three to four employees , the complement normally used by it in that room to handle its regular work In its letter to the Regional Office, dated August 3, 1949 , the Respondent took the position that Marak was temporarily laid off for lack of work and was subsequently replaced by a working foreman. At the opening of the hearing, Davidson , testifying as an adverse witness , stated that lack of work was the only reason for Marak's layoff at the time , although, he added, he would not rehire him now, because on the basis of a comparison he had since been able to make he considered Marak's work inferior to that of the men who were now performing it. 'These men he identified as Warren and Roberts . Somewhat inconsistently with the position taken in the letter, Davidson testified as an adverse witness that he did not recall Marak because Marak was working elsewhere and that that was substantially the only reason . But Davidson did not adhere consistently even to this position . Thus at one point in his testimony Davidson asserted that Marak had not been replaced at all after his layoff, and at another point Davidson n In reaching this conclusion, I have not overlooked that Platt' s statement to Valla concerning Davidson revealed an attitude toward Davidson and his religion that well might justity the Respondent in now considering him an undesirable employee. But, as found above, this statement had nothing to do with Platt s discharge, and, at most, can only go to the question of whether it would effectuate the policies of the Act to order Platt's reinstatement under these circumstances . Whatever niy views on this might other- wise have been , I consider myself bound by the Board' s decision in Vermont American Furniture Corporation, 82 NLRB 408, enfd. N L. R. B. v. Vermont American Fuinsture Corp, 182 F. 2d 842 (C. A. 2), where under comparable circumstances the Board ordered its usual remedy including reinstatement. 166 DECISIONS- OF NATIONAL LABOR RELATIONS BOARD stated he did not recall Marak, selecting him for separation rather than Warren, because Marak was temperamentally unsuited to work under a supervisor. As in the case of Platt, the Respondent shifted from its original position that lack of work was the only reason for Marak's layoff. With the progress of the bearing, the Respondent from time to time assigned additional reasons for its layoff action and when it was pointed out that these were essentially at variance with the Respondent's originally asserted position, the Respondent's counsel attempted to conform the added reasons to the Respondent's original position by contending that they were the cause not of the layoff but of the lack of work. Thus, at different times in the course of his lengthy examination, Davidson variously stated that he laid off Marak because he was unable to get along with Platt, because of friction between Marak and the pressroom, because Marak refused to work when the Respondent was late in deliveries, because Marak's work was unsatisfactory, and because Marak teased and annoyed Hirsch. Davidson's general assertions concerning Marak's inability to get along with Platt and refusal to work were wholly unsupported by specific evidence, and there is credible evidence to the contrary. The record does show that Marak had differences on a few occasions with Brenner, a pressman, over the condition of plates sent to the pressroom. But the specific incidents relied upon occurred some 6 months before Marak's layoff, and the record discloses, moreover, that occasional differences between photo-composing room and pressroom employees with regard to the condition of plates are not extraordinary even today. Brenner himself testified that he had no ill feelings toward Marak and no special complaints about his work, while Zalenski, the other pressroom employee, testified that he had never had any trouble with Marak. To support its claim that Marak along with others in the photo-composing room were inefficient workers, the Respondent relied principally upon testimony of a number of its salesmen to the effect that they had lost accounts from customers, in some cases because the customers were dissatisfied with the quality of work ; in others, because of slow delivery ; in more, because prices were too high, necessitating later a cut in commissions in order to regain them. The testimony of the salesmen concerning the few instances where accounts were lost because of poor workmanship or late deliveries does not specifically lay the fault at the feet of Marak. On the contrary, credible evidence establishes that most of the plates in the Harloc job and the vandykes in the Becker and Lush job, the faulty work most specifically relied upon, were performed respectively by Apotria and Warren, the newer employees who were retained after the layoff, rather than by Marak. Moreover, the claim now made by Davidson, that Marak was considered an unsatisfactory worker and had been so almost since the beginning of his employment, does not comport with his long retention in his job. Nor is it consistent with Davidson's statement to Marak in April that he deserved a raise but could not be given one at that time because of the Union, or with Davidson's admission elsewhere in his testimony that he would not have recommended Marak for a job elsewhere, as he testified he did, had he considered him incompetent. As for the claim that Marak teased and annoyed Hirsch, the testimony disclosed no more 'than one incident of apparently innocent foolery long before the layoff, and perhaps some occasional teasing of Hirsch and fault-finding with her work, none of which Davidson could have considered of serious consequence, for even if he knew of them, he never so much as made them the subject of a reprimand. Consideration of this as well as the Respondent's other added defenses leaves one with the over-all impression that they were inserted as afterthoughts following a careful scouring, for the purposes of the hearing, of Marak's entire employment record to discover reasons THE M. H. DAVIDSON COMPANY 167 why the Respondent might have discharged him, not why it did. I am satisfied that none of them contributed materially to the Respondent's original decision to separate Marak. What was the real reason for Marak's separation and the failure to recall him? As in the case of Platt, I have no doubt that when Marak -was told on June 14 to lay off for a day, there was in fact a lack of work in the Respondent's offset composing room. But though this condition was a temporary one, Marak's layoff was not. The undenied testimony of Moore, Davidson's accountant, that Davidson told him on June 16 he had gotten rid of the men in the photo-compos- ing room is consistent only with the conclusion that at least by that date Davidson had determined that Marak's separation was to be a permanent one. This is confirmed by other facts. By June 23, the Respondent had sufficient work to require the services of three employees-the newly hired Spaeth, Apotria who had not been laid off, and Hirsch who was recalled on that day-and during the following week found it necessary to add for a time a fourth, Warren. Yet, though there was clearly work at the time, and notwithstanding his earlier rep- resentations to Marak that he would recall him if any work came in, the Re- spondent refrained from contacting Marak to perform work for which he was clearly qualified. The Respondent selected in his place employees junior to him in service, two of whom, Apotria and Hirsch, had theretofore served as his as- sistants and were admittedly less experienced and capable, and the third of whom, Warren, had only recently joined the Respondent as a part-time employee. The preference given the junior employees in this instance is in striking contrast with Davidson's explanation, more fully adverted to below, for retaining other employees over Gambardella in the offset pressroom, namely, that Gambardella was the last one hired and therefore the first to go. Certainly Davidson's explanation, asserted at the opening of the hearing, that he did not recall Marak because the Respondent's policy of recalling laid- off employees did not extend to those who had secured work elsewhere, does not account for failure to recall Marak when work was available before July 5, the date Marak first went to work for another employer. Nor do I find impressive the other explanations to and from which the Respondent shifted from time to time. The claim that Marak has never been replaced is contradicted by other portions of Davidson's own testimony, and is clearly without substance. The claim that Marak and Roberts were considered by Davidson temperamentally un- suited for each other is unsupported except by Davidson's bald, and untested, assertion to which, standing alone, I can attach no credence in view of Davidson's other contradictory positions ; besides it does not account for the Respondent's failure to recall Marak in the earlier period before Roberts was hired. The claim in the letter to the Regional Office that Marak was not recalled after his "temporary" layoff on June 14 because he had been replaced by a working fore- man also fails to account for the Respondent's failure to recall Marak in the earlier period prior to Roberts' employment, when the Respondent was recalling junior and less experienced and qualified employees. Nor does it explain why if Roberts replaced Marak, the Respondent found it necessary shortly thereafter steadily to employ Warren who, the record shows, performed work identical to that previously performed by Marak. As bearing on the bona fides of this de- fense, I think it significant, too, that Davidson had represented to Marak and Platt that he was contemplating replacing one or the other only because of his need for a working foreman. As appears from Davidson's own testimony, Rob- erts, who was hired in that capacity, was fully qualified to handle not only the work formerly performed by Marak, but the work formerly performed by Platt 168 , DECISJONS OF NATIONAL LABOR RELATIONS BOARD as well, and in fact did take over the camera work after Spaeth quit some months later. It would seem, if Davidson were acting in good faith, that having disposed of Platt and having found a supervisor qualified to handle Platt's work, he would have retained Marak and released the newly hired Spaeth. But this he did not do. The reason he did not, I am convinced, is because in Marak's case, as in Platt's, Davidson had reached a final determination at or shortly after Marak's layoff to separate him permanently, a fact confirmed by the testimony of Moore. There is much in Marak's case that parallels that of Platt. Davidson had earlier coupled their names together in expressing to Marks his suspicion con- cerning those most responsible for starting the Union. His threat, while discussing the Union with Masiello, to get rid of the boys in the platemaking department covered both Platt and Marak. By his own admission, Davidson's initial decision to replace both Platt and Marak was first made in April, at the height of union organization, and its execution delayed only because of the scarcity of suitable replacements. Although ostensibly temporarily laid off, originally for a day, both Marak and Platt were advised to seek other jobs. In both cases the Respondent offered shifting, contradictory, and unconvincing reasons to justify its action. Upon all the evidence, I am persuaded that Marak, like Platt, was not temporarily laid off but permanently separated, and that the Respondent's true motivation for such action is to be found not in the reasons 'assigned by it, which I do not credit, but in the discriminatory con- siderations which, as has been found, guided it at about the same time to' terminate Platt. Consequently, I conclude and find that Marak was permanently separated on June 14, 1949, because of his union activities or supposed activities and that the Respondent by thus separating Marak, and by its failure thereafter to reinstate him, discriminated with regard to his hire and tenure of employ- ment, 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. Marion Hirsch Hirsch, who was laid off on June 14, 1949, was recalled on June 23 for about 2 weeks, again laid off on July 5, 1949, again recalled on July 18, 1949, and finally laid off on July 19, 1949. About a week later, she accepted employment elsewhere. She was finally terminated on the records of the Respondent on October 12, 1949. In the meantime Warren, who had originally been laid off about the same time as Hirsch, and who had later been recalled for a 2-day period on July 5, 1949, was recalled on July 21, 1949, 2 days after Hirsch's final layoff, and given steady work thereafter. The work that had been performed by Hirsch as an assistant stripper and opaquer was thereafter divided among Warren, Spaeth, and Roberts. The Respondent's position, as expressed by Davidson at the opening of the hearing, was that Hirsch was laid off only because of lack of work." Davidson testified that after Hirsch's last layoff, she was twice called on the telephone during the month of August for the purpose of summoning her back to work, 14 In the letter to the Regional Office, dated August 3, it was stated with regard to I3irsch, "This lady was hired on a temporary basis and was let go when the work was completed." At the hearing it was conceded that Hirsch's employment had not in fact been temporary It was explained that the statement in the letter, written by the Respondent's counsel, was the result of an inadvertent misunderstanding of his client's position. THE M. H. DAVIDSON COMPANY 169 once by him and once by the switchboard operator (who was not, however, identified or produced as a witness), but that Hirsch was not found at home on either occasion According to Davidson, when it was discovered that Hirsch was working elsewhere, no further effort to reach her was made. Both Hirsch and her mother, who answered all telephone calls when her daughter was out, denied any calls had been received from Davidson or from the Respondent's office after Hirsch's last layoff. The denial of Hirsch and her mother is credited But though I reject Davidson's testimony in the respect last mentioned, reject also his denial of knowledge of Hirsch's interest in the Union," and find other portions of his testimony with regard to Hirsch's separation contradictory and unreliable,16 I am yet not persuaded that enough has been proved to make out a case of illegal !discrimination against Hirsch The role of Hirsch in the Union and concerted activities of the employees was completely a passive one, and, unlike the situations that prevail in the cases of Platt and Marak, there is no clear evidence that Davidson thought otherwise. Davidson's threat to Masiello in April appears to have been directed to the "boys" in the platemaking depart- ment and not to have extended to Hirsch. Davidson did not testify with regard to Hirsch, as he did with regard to Platt and Marak, that he had decided to get rid of her in April, the time when, as has been found, union organizational activities were at their crest Davidson's statement to Moore immediately after the June layoffs about getting rid of people in the photo-composing room was addressed to the "men" in that room. Davidson never advised Hirsch, as he advised Platt and Marak, to seek a job elsewhere." Unlike Platt and Marak, Hirsch after her original layoff was recalled on two occasions, the last time for a brief period shortly before the election. Had Davidson been motivated by antiunion considerations in the case of Hirsch, I think it unlikely that he would have recalled her so soon before the election. Thus, many of the considerations which in the cases of Platt and Marak have led me to the conclusion that the Respondent was guided by an antiunion motivation in separating them, are found wanting in the case of Hirsch. It is true that only 2 days after Hirsch was last laid off ostensibly for lack of work, and on the day before the election, the Respondent recalled Warien for steady work. But Warren, like Marak, was a journeyman craftsman while Hirsch was in the nature of-an apprentice. It is not unreasonable to infer that with Marak discriminatorily separated, the Respondent found it necessary for operational purposes to replace him by a workman equally qualified, and having done so with Warren, and having also added a working foreman to its staff, had no further need for Hirsch's services, and, therefore, did not recall her. The fact that Hirsch's separation flowed 15 Yvonne Tornberg testified credibly and without denial that some weeks before Hirsch's layoff, Mrs. Davidson warned her that since Hirsch was among those interested in the Union, she should not discuss with her anything that was said in the office concerning the Union. 16 Thus, for example, Davidson testified as an adverse witness that he did not find fault with Hiisch's work, and the Respondent's counsel stated at one point, "There is no claim here ceitainty that this lady's work was unsatisfactory" Yet, despite these assertions and despite Davidson's earlier expressed position regarding the Respondent's layoff of IIiisch and failure to recall her, Davidson later expressed the position while testifying that she was terminated because Roberts had told him her work "isn't entirely satisfactory," and that she was lazy and incompetent. 17 Davidson did testify at one point that when lie laid off Hirsch on July 19, he told her to look for other work because work about the plant would be unsteady Hirsch's testimony, however, is to the contrary. According to her, Davidson said nothing to lead her to believe she might not be called back Hirsch's testimony is viewed as more reliable, and is ciediteil 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from discrimination against Marak, and that but for such discrimination she might not have been separated, does not in my opinion establish illegal dis- crimination as to her. To sum up : The shifting, contradictory, and in part implausible defenses assigned by the Respondent leave room for suspicion that Hirsch's separation had been illegally motivated. But I am convinced that there is sufficient additional evidence in her case to support an inference to that effect. Con- cluding as I do that the General Counsel has failed to sustain the allegations of the complaint relating to discrimination against Hirsch, I shall recommend that these allegations be dismissed. 3. The termination of employment of Anthony Gambardella Gambardella was first employed by the Respondent as a kelly pressman in 1946, but quit voluntarily after 3 months. He was rehired in September 1948 as an offset pressman at the rate of $1.50 an hour, and assigned to work on one of the two large presses in the offset pressroom. There were then two other employees in the offset pressroom-Hyman Brenner, who had been em- ployed since October 1947 and whose hourly rate was $2, and Raymond Zalen- ski, who had been hired in May 1948 and whose hourly rate was $1.20. After Gambardella was rehired, Brenner operated the other large press while Za- lenski operated a small press and assisted Brenner and Gambardella on the large presses. The three named employees continued to compose the full staff in the offset pressroom until June 6, 1949, when, during Gambardella's absence from the plant on a honeymoon, the Respondent hired a fourth offset pressman, Gordon Moffatt. On June 21, 1949, both Gambardella and Moffatt were laid off. Gambardella was told at the time of his layoff to take the next day off be- cause no plates were available. At that time, he was also criticized for having spoiled a job about a week and a half before. This was the first time Gambar- della's work performance had ever been taken to task. On June 22, Gambardella was told to continue his layoff status, since work was not yet available On June 24, Gambardella called at the plant and was informed that there was still no work, but that he would be called when there was. Unlike Platt and Marak, however, he was not advised to seek employment elsewhere Several days later, Gambar- della returned to the plant to pick up his tools and books, so that he could get a job elsewhere. He saw Davidson at, that time, but said nothing. After that, Gambardella never returned to the plant, except to vote at the election, nor did he ever communicate with the Respondent seeking work. In August or Septem- ber, he obtained a job elsewhere. Gambardella has never been recalled to work by the Respondent. Moffatt, who was laid off on the same day, was recalled for 4 days' temporary work be- tween July 5 and 8, 1949, to fill in for Brenner and Zalenski who were then absent from the plant on vacation. Davidson explained that he recalled Moffatt rather than Gambardella for this temporary job because Moffatt, unlike Gam- bardella, had been calling in for work, and because Gambardella had removed his tools from the plant. When Brenner and Zalenski returned from their vaca- tion, Moffatt was again laid off, and he, too, has never been recalled. There- after, the Respondent's offset pressroom continued to operate with Brenner and Zalenski as its only employees until November 14, 1949, when the Respondent hired an apprentice pressman, Forrest Doten, to assist Brenner and Zalenski. Doten's starting hourly rate was 80 cents, and that is still his rate today. Although added reasons were proffered at times by Davidson while testifying, the Respondent's basic position, to which it has consistently adhered throughout the hearing and its brief, is that Gambardella was laid off for lack of work. THE M. H. DAVIDSON COMPANY 171 The General Counsel offered no evidence to show that work was in fact available for Gambardella at the time of his layoff. And the subsequent operation of the offset pressroom with only two pressmen for a substantial period stands as strong corroborative evidence that the services of a third were no longer required. The General Counsel in his brief apparently recognizes that there is validity to at least so much of the Respondent's position as urges economic justification for a layoff in the offset pressroom on June 21, 1949. What he stresses is that dis- crimination should be found in the Respondent's selection of Gambardella over Zalenski as the employee to be laid off. The Respondent's explanation for its choice is that Zalenski had been employed longer than Gambardella and was a better worker. Whether Zalenski had in fact been regarded by the Respondent as a more capable worker may be open to some question in view of the fact that Gambardella was assigned to the more difficult press operation while he and Zalenski worked together. However, Zalenski had in the past operated the large press at times and, after Gambardella's layoff, did so regularly, indicating that he was at least competent to carry out Gambardella's former assignment. And the fact that he had seniority over Gambardella certainly supplies reasonable justification on a nondiscriminatory basis for his selection for retention over Gambardella, if one of them had to go. It is true that the Respondent may have subjectively welcomed the opportunity which circumstances provided it to lay off Gambardella. Davidson knew that Gambardella was an old member of the Union, and had no illusions as to how Gambardella would vote in the election, although he was uncertain of Zalenski. Moreover, Davidson had earlier expressed his suspicion to Finicelli-a suspicion which was well founded in fact-that Gambardella had been primarily responsible for organizing the Union at the plant, and had expressed a threat to take reprisal measures if he found this to be true. But though these considerations must, as they have been here, weighed in the balance, they cannot alone control decision. Alone, they cannot support an inference that Gambardella was discriminatorily selected for layoff, unless the record can also be said to support a finding that but for the antiunion considerations the Respondent would not have taken the action it did. On the facts of this case I am not satisfied that such a finding can be made. Nor am I persuaded that the record of this case fairly supports a finding that the Respondent discriminated against Gambardella by not recalling him after his layoff on June 21, 1949. So far as the record discloses, the Respondent could have used Gambardella's services as an offset pressman only during the brief period when Moffatt served as a temporary substitute for Brenner and Zalenski. The Respondent's explanation for calling upon Moffatt rather than Gambardella for this temporary job does not impress me as unreasonable. And the record supports the Respondent's contention that Gambardella has never been replaced. Even if it were assumed that the Respondent was under a duty to recall Gambardella as late as November when Doten was hired, Doten cannot be con- sidered a replacement for Gambardella, for he was hired as an apprentice at a rate practically half that paid Gambardella. Upon all the evidence, I conclude that the General Counsel has failed to sustain the allegations of the complaint relating to discrimination in the case of Gambardella. I shall, consequently, recommend that these allegations be dismissed. E. Disposition of objections to the election Having found that the Respondent engaged in unfair labor practices between the date of the filing of the petitio for investigation and certification of repre- sentatives in Case No . 1-RC-969 and the date of the election in that proceeding, 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it is further found that the election was not an expression of the employees' free choice and did not represent their free, untrammeled, and uncoerced wishes as to collective bargaining representation. It will therefore be recommended that the Union's objections to the election be sustained and that the results of the election be set aside. Since the findings made below with regard to the Re- spondent's refusal to bargain on April 11, 1949, and thereafter, and the remedial order recommended on the basis of such findings, resolve the question concern- ing representation, it will be recommended that the petition for investigation and certification of representatives in Case No. 1-RC-969 be dismissed. F. Concluding findings as to the Respondent's refusal to bargain As has been shown above, the Union, having theretofore been designated by a majority of the employees in the appropriate unit as their bargaining repre- sentative, wrote the Respondent on April 9, 1949, seeking recognition as an exclusive bargaining representative. On April 11, 1949, Davidson Acting for the Respondent orally advised the Union that he did not think the Union rep- resented a majority and that he would not meet or have anything to do with the Union. The complaint alleges that the Respondent has illegally refused to bargain with the Union since that date. The Respondent, on the other hand, seeks to exculpate itself upon two grounds not previously considered. One is that its refusal was motivated by a bona fide doubt concerning the Union's ma- jority. The other is that the Union at the time of its demand never offered proof of its majority. As has been previously indicated, both are related When an employer acts in good faith he may, of course, without subjecting himself to an infraction of Section 8 (a) (5) of the Act, challenge a union's asserted majority and require proof of such majority by an election or other appropriate method. But a challenge to a majority does not shield an em- ployer if it is motivated not by a bona fide doubt as to the existence of the majority, but rather by a rejection of the collective bargaining principle or by a desire to gain time within which to undermine the Union's support 18 On the record of this case, there can be little doubt that, despite its present piotestations to the contrary, the Respondent's refusal on Apiil 11, 1949, to meet or deal with the Union was not sincerely motivated, but was actuated by a studied purpose to avoid its statutory duty to bargain by obtaining time within which it might effectively move to dissipate the Union's strength. Instead of offering to cooperate with the Union to provide a means for re- solving its asserted doubt of the Union's majority, the Respondent brusquely announced that it would neither meet nor have anything to do with the Union. And immediately upon receipt of the Union's demand, the Respondent embarked upon a coercive course of conduct which revealed with unmistakable clarity that the question with which it was really conceined was not whether the Union in fact had a majority at the time, but rather how that majority, it it existed, could be subverted or destroyed. As found above, the Respondent's coercive infractions included interrogation of employees concerning union mem- bership and activities, threats of economic reprisal directed against individual employees and against its employees as a group, promises of benefit to employees in return for their support of the Respondent against the Union, and, finally although not immediately, the discriminatory discharge of two employees be- lieved by the Respondent to have been among those piiiiiarily responsible for 18 The cases supporting this proposition are legion. See, e g, the following of relatively recent date. Inter-City Advertising Company, 89 NLRB 1103, The Red Rock Company, S4 NLRB 521, Joy Silk Mills, Inc, 85 NLRB 1263; The Ca„tlntan Lumber Co, Inc, 82 NLRB 296; D II Holmes Company, 81 NLRB 753. THE M. H. DAVIDSON COMPANY 173 the advent of the Union in the plant. The spirit of wholesome cooperation that is implicit in a bona fide doubt does not normally find expression in such patent interference and restraint as was evinced here by the Respondent almost from the very moment it received, and rejected, the Union's demand. The Respondent's objective actions clearly belie its pretense of subjective good faith. Nor, under the circumstances of this case, may the Respondent excuse its refusal to bargain by pointing to the fact that the Union did not at the time submit proof of its majority designation. The Respondent is scarcely in a position now to complain that no proof was offered when it not only failed to request the submission of such proof, but, by announcing at the time that it would have nothing to do with the Union and immediately proceeding to engage in an antiunion course of conduct, it has disclosed beyond mistake that it would not have engaged in bargaining even if the proof had been presented. See Everett Van Kleeck, d3 Co. Inc, SS NLRB 785. See also, N. L. R. B. v Crown Can Co., 138 F. 2d 263, 266 (C. A. 8).19 The fact that the Union filed a representation petition on the day the Re- spondent rejected its bargaining demand does,not preclude a finding of an earlier refusal to bargain or a remedial order based thereon 20 Nor, particu- larly in view of the intervening unfair labor practices here found to have been engaged in by the Respondent, is it a bar to such a finding and order that the Union lost the election held on July 22, 1949 21 As has been found above, the election was invalid and must, therefore, be regarded as a nullity 22 lint beyond that, it must be presumed, and it is here found, that since the Union enjoyed a majority status at the time the Company refused to bargain with it, any subsequent defection from it as evidenced by its loss of the election is attributable to the Respondent's intervening unfair labor practices. It is axiomatic that an employer may not by his own misconduct destroy a union's majority and then claim to be relieved of his duty to bargain with it on the ground that it no longer represents a majority of the employees In an un- broken line of decisions, the Supreme Court,23 the Courts of Appeals,24 and the Board 25 have held that the appropriate means to expunge the effects of a refusal 10 In the cited case, the Court, in language peculiarly applicable to the situation at bar, said : The respondent contends that the Union representative at no time presented any convincing evidence of majority support and that, therefore, the evidence does not support such finding The conduct of Zanetti subsequent to the receipt of the letter of October 14, 1940, warranted the Board in finding a refusal to bargain within the meaning of the Act [Citing cases ] It is true, of course, that an employer may request reasonable proof that the union represents a majority of the employees, and in the absence of such proof he need not bargain, if he in good faith doubts the union's majority [Citing cases ] In the instant case no inquiry was made nor proof requested by the respondent, so that it is now in no position to complain that the union failed to present convincing proof that it represented a majority. R0 See, The Red Rock Company, supra ; Cuffman Lumber Co. supra; John Deere Plow Company, 82 NLRB 69. D H. Holmes, supra; Pacific Plastics d Mfg. Co, Inc, 62 NLRB 52, 80, Rock City Paper Box Company, Inc., 64 NLRB 1527. 21 See, Joy Silk Mills, supra ; D H. Holmes, supra, enfd as modified, Holmes Co , Ltd v. N L R B , 179 F 2d 876 (C. A 5) , Peoples Motor Express, Inc, 74 NLRB 1597, enfd as modified, Peoples Motor Express, Inc. v N L R B , 165 F 2d 903 (C A 4) , H McLachlan d Co, Inc, 45 NLRB 1113 And cf. Bausch & Lomb Optical Company, 69 NLRB 1104; The Hartford Courant Company, 64 NLRB 213 , Gibson County Electric Membership Cor- poi ation, 74 NLRB 1414 22 Cf John Deere Plow Company, supra. 2s Franks Bros. Company v. N L R. B , 321 U S. 702; N. L R. B. v P. Lorillard Co., 314 U S. 512; N L. R B. v. Bradford Dyeing Assn., 310 U. S. 318, 339-340. 24 E. g, Peoples Motor Express, Inc. v. N. L R B , supra; Holmes Co. Ltd v. N. L R B , supra; N L. R B v. Todd Go, 173 F. 2d 705, 707 (C. A. 2). 25 See, e. g, cases cited in footnote 21, above. 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to bargain is to require the employer to bargain with the union which, before the unlawfully induced defection from its ranks, was the majority choice. Upon the record as a whole, it is concluded and found that on April 11, 1949, and thereafter the Respondent unjustifiably refused to recognize and bargain with the Union as the exclusive representative of its employees in the appro- priate unit, and has thereby interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of the Respondent set forth in Section III, above, occurring in connection with the operations of the Respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirm- ative action which will effectuate the policies of the Act. It has been found that the Respondent discriminated in regard to the hire and tenure of employment of George Platt and Theodore Marak. It will be recommended that the Respondent offer each of them immediate and full re- instatement to his former or substantially equivalent position (The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827) without prejudice to his seniority or other rights and privileges and make each of them whole for any loss of pay he may have suffered by reason of the Respondent's discrimination against him. Consistent with the policy of the Board enunciated in F. W. Woolworth Company, 90 NLRB 289, it will be recom- mended that the loss of pay be computed on the basis of each separate calendar quarter or portion thereof during the period from the Respondent's discrimina- tory action to the date of a proper offer of reinstatement. The quarterly periods, hereinafter called "quarters," shall begin with the first day of January, April, July, and October. Loss of pay shall be determined by deducting from a sum equal to that which these employees normally would have earned for each quarter or portion thereof, their net earnings (Crossett Lumber Company, 8 NLRB 440; Republic Steel Corporation v. N. L. R. B. 311 U. S. 7), if any, in other employment during that period. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other quarter. It is also recommended that the Respondent be ordered to make available to the Board upon request payroll and other records to facilitate the checking of the amount of back pay due (F. W. Woolworth, supra). It having been found that the Respondent has refused to bargain collectively with the Union, the statutory representative in the appropriate unit, it will be recommended that the Respondent bargain collectively with the Union and embody any understanding reached in a signed agreement. The Respondent's infractions of the Act, herein found, disclose a fixed purpose to defeat self-organization and its objectives. Because of the Respondent's un- lawful conduct and its underlying purposes, I am persuaded that the unfair labor practices found are related to the other unfair labor practices proscribed by the Act and that the danger of their commission in the future is to be antic- ipated from the course of the Respondent's conduct in the past. The preventive purposes of the Act will be thwarted' unless the remedial order is coextensive with PENNWOVEN, INC. 175 the threat. In order, therefore, to make effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor practices, and to minimize strife which burdens and obstructs commerce, and thus to effectuate the policies of the Act, it will be recommended that the Respondent be ordered to cease and desist from infringing in any manner upon the rights guaranteed by Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following : CoNcLusIONs OF LAW 1. International Printing Pressmen and Assistants' Union of North America, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 2. All pressmen, press assistants and apprentices, platemaker, etcher, stripper, cameraman, and offset pressmen and apprentices, and press assistants, employed by the Respondent at its New Haven plant, excluding executives, foremen, office and clerical employees, guards, professional employees, and supervisors as de- fined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. On April 11, 1949, International Printing Pressmen and Assistants' Union of North America, AFL, was, and at all times since has been, the exclusive repre- sentative of all employees in the appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By refusing to bargain collectively with the Union as exclusive representa- tive of the employees in the appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By discriminating in regard to the hire and tenure of employment of George Platt and Theodore Marak, thereby discouraging membership in the Union, the Respondent engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 6. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 8. The Respondent has not engaged in unfair labor practices by discriminating in regard to the hire and tenure of employment of Marion Hirsch and Anthony Gambardella ; by keeping under observation and surveillance the meeting places, meetings, and activities of the Union or the concerted activities of its employees ; or by offering, promising, and granting a wage increase to its employees. [Recommended Order omitted from publication in this volume.] PENNWOVEN, INC. and AMERICAN FEDERATION OF LABOR . Case No. 6-CA-178. May 2,1951 Decision and Order On January 22, 1951, Trial Examiner Arthur Leff issued his In- termediate Report in the above-entitled proceeding, finding that the 94 NLBR No. 43.