Hershey Metal Products Co.

In the Matter of PAUL H. HERSHEY AND MARY J. R. HERSHEY, CO- PARTNERS DOING BUSINESS AS HERSHEY METAL PRODUCTS COMPANY, and ANSONIA BRASS WORKERS UNION, LOCAL 445, INTERNATIONAL UNION OF MINE, MILL AND SMELTER WORKERS (CIO) Case No. 1-C-2735.-Decided March 16, 1948 Mr. Leo J. Halloran, for the Board. Mr. William F. Healey, of Derby, Conn., for the respondents. Messrs. John Porcu and Thomas J. Cooke, of Ansonia, Conn., for the C. I. O. Mr. Harold Yudlcin, of Derby, Conn., for the Employees Repre- sentative Association Independent Union Local #1. DECISION AND ORDER On November 22, 1946, Trial Examiner Sidney Lindner issued his Intermediate Report in the above-entitled proceeding, finding that the respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the respondents filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the respondents' exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, but with the exceptions, modifications, and additions noted below.' ' Sections of the original Act alleged in this case to have been violated , namely, Section 8 (1), 8 (2 ) and 8 ( 3), are continued without material amendment, so far as their appli- cability to the facts here involved is concerned , in Section 8 (a) (1), 8 ( a) (2), and 8 (a) ( 3) of the Act, as amended. 76 N. L. R. B., No. 105. 695 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. We agree with the Trial Examiner's finding that the respondents violated Section 8 (1) of the Act by the statements and conduct of Paul H. Hershey in questioning employees Salerno and Coppola concerning CIO activities,2 and by Hershey's discriminatory applica- tion of the respondents' rule against solicitation during working hours. The discrimination in application of the rule lay not in the fact that it was invoked to forbid Coppola from soliciting for the CIO during working hours, but rather in the disparity between the re- spondents' application of the rule to Coppola and their subsequent failure to apply the rule to other employees who openly engaged during working hours in solicitation against the CIO. 2. The Trial Examiner found that the respondents dominated and interfered with the formation and administration of the Employees Committee and contributed support to it, in violation of Section 8 (2) and 8 (1) of the Act. He based his finding largely upon the re- spondents' conduct in knowingly allowing members of the Employees Committee to organize, meet, and circulate an anti-CIO petition in the plant during working hours without deductions from their pay; upon Hershey's action in making available to the Employees Com- mittee the respondents' pay-roll lists in order to facilitate complete circulation of the anti-CIO petition, his offer of legal assistance to the Employees Committee, and his other words of encouragement to it; and upon the respondents' grant of the demand by the Employees Committee for a general pay increase. The foregoing conduct of the respondents occurred, as is set forth more fully in the Intermediate Report, after the CIO had claimed bargaining rights and filed a peti tion with the Board under Section 9 (c) of the Act and after Hershey had engaged in hostile questioning of employees concerning CIO ac- tivities and applied a strict rule against solicitation on behalf of the CIO during working hours. Under the foregoing circumstances, we agree with the Trial Ex- aminer that by their above conduct the respondents interfered with the formation and administration of and contributed support to the Em- ployees Committee in violation of Section 8 (2) and 8 (1) of the Act. It was clearly the respondents' purpose to encourage and assist the Employees Committee as an organization of the employees which held promise of thwarting the efforts of the CIO to regain bargaining status. t We do not agree, however, that the respondents' conduct amounted to domination of the Employees Committee within the meaning of Section 8 (2). Indeed, the record affirmatively shows that, although the Employees Committee accepted and used for its own purposes the 2 See Matter of Amea Shot Welder Co., Inc., 75 N. L. R B. 352. HERSHEY METAL PRODUCTS COMPANY 697 assistance extended by the respondents, it was free from control by the respondents. The Employees Committee had its inception in a general dissatisfaction among the non-supervisory employees with an apparent deadlock between the respondents and the CIO on questions of pay increase and bargaining status. Non-supervisory employees, includ- ing dissident members of the CIO, organized and determined the policies of the Employees Committee with a view to breaking this deadlock and obtaining an immediate general pay raise. On February 16, 1946, when the respondents requested delay before grant4ng a gen- eral pay increase, the Employees Committee threatened to lead a strike unless the pay increase were immediately forthcoming. About the same time it rejected Hershey's offer of the services of the re- spondents' attorney to assist it in forming an unaffiliated union. The Employees Committee subsequently consulted with another attorney of its own choice in the face of Hershey's specific advice against such action.' Having found that the respondents' unfair labor practices did not constitute domination of the Employees Committee, we would not ,order its disestablishment even if it were still functioning' However, since the respondents extended illegal support to the Employees Com- mittee, which tended to interfere with and coerce the employees in the exercise of their rights under the Act, and because the Employees Com- mittee may resume functioning, we shall order that the respondents refrain from recognizing it or dealing with it unless and until it shall have been certified by the Board as the collective bargaining repre- sentative of their employees. 3. The Trial Examiner also found that the respondents dominated and interfered with formation and administration of the Independent Union and contributed support to it, in violation of Section 8 (2) and 8 (1) of the Act. He based this finding upon the ground that the Independent Union was initiated and sponsored by the Employees 9 As the Trial Examiner found, Pay Mistress Green, who supervised two or three assistants, was a member of the Employees Committee All other members were rank- and-file employees The Trial Examiner relied upon Green 's membership as evidence of illegal domination and support by the respondents of the Employees Committee The evidence shows that Green had no connection with the Employees Committee until after it was formed and embarked upon its program of ousting the CIO and securing a general pay raise . Then , in mid-February of 1946 , Green attended one or possibly two meetings of the Employees Committee at the request of Chairman Kusako, who invited her to be present as a member of the office force. What part, if any , Green took in the meeting or meetings of the Employees Committee which she attended is not clear However, at the meeting of employees which the Employees Committee called on February 18, 1946, for consldeiation of an independent union, GreenTspoke against employing an attorney and her advice was disregarded. Under these circumstances , we do not rely upon Green's limited membership upon the Employees Committee as an element of illegal inter- ference with or support of that organization by the respondents and we find that it does not establish illegal domination. 4 Matter of The Carpenter Steel Company, 76 N L. R B. 670. 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Committee, without any disavowal by the respondents of their illegal conduct with respect to the latter organization and without any clear line of fracture between the two organizations. We agree that the respondents' illegal acts with respect to the _ Employees Committee extended in their effect to the Independent Union and that, for the reasons given by the Trial Examiner, the Independent Union succeeded to the disabilities of the Employees Committee. We conclude, therefore, that the respondents' actions referred to in the section above interfered with the formation and administration of, and contributed support to, the Independent Union in violation of Sections 8 (2) and 8 (1) of the Act. However, since we do not agree that the respondents dominated the Employees Com- mittee in violation of the Act, we also do not agree that they illegally dominated the Independent Union. We shall therefore dismiss the allegation of the complaint, as amended, that the respondents violated Section 8 (2) of the Act by dominating the formation or administra- tion of the Employees Committee and the Independent Union. Under these circumstances, we do not believe that it would effectuate the purposes of the Act, as amended, to follow the Trial Examiner's recommendation that the Independent Union be disestablished .5 In- stead, we shall order the respondents to withhold recognition of the Independent Union and to refrain from dealing with it unless and until it shall have been certified by the Board as the collective bargain- ing representative of their employees.,, 4. The Trial Examiner found that the respondents discharged Lester Helm on November 12, 1945, in violation of Section 8 (3) of the National Labor Relations Act. We do not agree. The respondents contended that, during a period of slack em- ployment requirements, they selected Helm for discharge because of his "lack of interest," as shown by his habitual tardiness, occasional intoxication on the job, and unwilling obedience to orders.7 The Trial Examiner found that these reasons were only "justification in retrospect" and that the respondents' real reason for discharging Helm 5 Matter of The Carpenter Steel Company, supra 6 The Trial Examiner found that the respondents assisted the Independent Union by deducting from employees' pay, upon voluntary written authorization by the employees involved, moneys for the purchase by them of shares of stock in the Employees Repre- sentative Association Credit Union, Inc , a separate corporate entity which was initiated by the Independent Union We do not rely upon this finding, nor is our order herein intended to affect the operation as a credit organization of the Employees Representative Association Credit Union, Inc 7 The respondents did not contend that Helm's production or workmanship, standing alone, were unsatisfactory, though they claimed that others who were retained after him were better workmen on both counts. HERSHEY METAL PRODUCTS COMPANY 699 was his activity on behalf of the CIO. Although the case is not free from doubt, we do not believe that the evidence sustains such a conclusion. In the first place, the record supports the respondents' contention that they did, in fact, have a reduced need for employees in Helm's department at the time of his discharge.8 Secondly, Helm admitted that before his discharge he had a bad record of tardiness. The respondents introduced uncontradicted evidence which we credit, that Helm was tardy on 72.8 percent of the days upon which he worked between April 1, 1945, and the day of his discharge. Although other employees in the department also had poor records for punctuality, Helm's record was by far the worst.' Moreover, Helm testified that 3 days before his discharge his fore- man, Rivnyak, warned him that he would be discharged if he were late or absent thereafter or if he did not do his work properly 10 In addition, although Helm denied that he was ever intoxicated on the job, he admitted that on several unspecified occasions before his dis- charge, he drank excessively during his lunch period and notified his foreman that he could not work for the balance of the day. We do not consider it necessary to resolve the conflicting testimony as to whether Helm's obedience to orders was unwilling. In view of the showing that the respondents were in a position to thin out their less satisfactory workmen and in view of Helm's clearly unsatisfactory attendance record, we are unable to agree that the record proves that he was discharged for his union activity, rather than for the valid reasons asserted by the respondents. We shall dismiss the complaint as to Helm. 8 Thus, on V-J Day , in August 1945, there were 28 employees in the department. By November 8, 1945, this number was reduced, with corresponding reductions in other departments, to 12 . On November 9, employee Sherwin, not shown to have any connection with the CIO , was discharged for "lack of work " Helm was discharged on November 12, the same reason being given to him . Thereafter , there were various other transfers in and out of the department , discharges , hirings, and resignations , so that from the time of Helm's discharge until the hearing , employment in the department fluctuated between a low of 10 and a high of 17 There were 13 or 14 employees in the department at the time of the bearing. 0 The employee having the next highest number of tardinesses was Young , who was late on 41 5 percent of the 183 days during which he woiked between April 1 and November 12, 1945 However, Foreman Rivnyak testified without contradiction that most of Young's tardinesses , unlike Helm 's, were authorized Other employees in the department , during the same period, had tardiness records as follows • Sherwin, 24 3 percent , German, 17.7 percent ; Aversano, 15 2 percent ; Klik, 11 1 percent , Balusek 8 0 percent ; and Kevalas 6 2 percent Employees Cobo, Davis, Laraghan and Stachelezyk had no tardiness "The Trial Examiner appears to have viewed this warning only as a coercive notice by Rivnyak that be was looking for some pretext for which to discharge Helm discriminatorily. We believe that it should more logically be viewed as a final admonition with respect to punctual attendance and performance of the job . Helm admitted that theretofore, on several occasions , Foreman Rivnyak , upon observing Helm come in late, would shake his head and comment, "What a guy. What a guy." 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the respondents, Paul H. Hershey and Mary J. B. Hershey, individually and as co-partners, doing business as Hershey Metal Products Company, and their agents, succes- sors, and assigns shall: 1. Cease and desist from : (a) Questioning their employees concerning their union affiliations, sympathies or activities; (b) Discriminatorily applying plant rules with respect to employee conduct; (c) Interfering with the administration of Employees Committee or Employees Representation Association Independent Union Local No. 1, or with the formation or administration of any other labor or- ganization, and from contributing support to either of the above- named labor organizations, or to any other labor organization; (d) In any other manner interfering with, restraining, or coercing their employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Ansonia Brass Workers Union, Local 445, International Union of Mine, Mill and Smelter Workers (CIO), or any other labor organization, to bargain col- lectively through representatives of their own choosing, and to en- gage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranted in Section 7 of the Act, as amended. Take the following affirmative action, which the Board finds will effectuate the policies of the Act; (a) Withhold all recognition from the Employees Committee as the representative of any of their employees for the purposes of dealing with the respondents concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until the said Employees Committee shall have been certified as such representative by the Board; (b) Withhold all recognition from Employees Representative As- sociation Independent Union Local No. 1 as representative of any of their employees for the purposes of dealing with the respondents con- cerning grievances, labor disputes, rates of pay, hours or conditions of employment, unless and until the said Employees Representative Association Independent Union Local No. 1 shall have been certified as such representative by the Board. HERSHEY METAL PRODUCTS COMPANY 701 (c) Post at their plants at Ansonia and Derby, Connecticut, copies of the notice attached hereto, marked "Appendix A." 11 Copies of said notice, to be furnished by the Regional Director for the First Region, shall, after being duly signed by the respondents or their repre- sentative, be posted by the respondents immediately upon receipt thereof and maintained by them for sixty (60) consecutive days there- after in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondents to insure that said notices are not altered, defaced, or covered by any other materials; (d) Notify the Regional Director for the First Region in writing, within ten (10) days from the date of this Order, what steps the respondents have taken to comply herewith. AND IT Is FURTHER ORDERED that the complaint, as amended, be, and it hereby is, dismissed insofar as it alleges that the respondents domi- nated the formation or administration of the Employees Committee and Employees Representative Association Independent Union Local No. 1 in violation of Section 8 (2) of the Act, and insofar as it alleges that the respondents discharged Lester Helm in violation of the Act. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT (a) Question our employees concerning their union affiliation, sympathies, or activities; (b) Apply our plant rules so as to discriminate for or against any labor organization; (c) Interfere with the administration of EMPLOYEES COMMIT- TEE or EMPLOYEES REPRESENTATIVE ASSOCIATION INDEPENDENT UNION, LOCAL No. 1 or with the formation or administration of any other labor organization, or contribute support to either of the above-named labor organizations, or to any other labor organization ; (d) In any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist ANSONIA BRASS n In the event this Order is enforced by decree of a circuit court of appeals , there shall be inserted in the notice before the words "A Decision and Order," the words "A Decree of the United States Circuit Court of Appeals Enforcing." 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WORKERS UNION, LOCAL 445, INTERNATIONAL UNION OF MINE, MILL AND SMELTER WORKERS, CIO, or any other labor organization, to bargain collectively through representatives of their own choos- ing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. WE WILL (a) Withhold all recognition from EMPLOYEES COMMITTEE as representative of any of our employees for the purposes of col- lective bargaining unless and until the said organization shall have been certified as such representative by the National Labor Relations Board; (b) Withhold all recognition from EMPLOYEES REPRESENTA- TIVE ASSOCIATION INDEPENDENT UNION LOCAL No. 1 as repre- sentative of any of our employees for the purposes of collective bargaining unless and until the said organization shall have been certified as such representative by the National Labor Relations Act. All our employees are free to become or remain members of the unions named above, or of any other labor organization. ---------------------------------- (Employer) By ---------------------------------- (Representative ) (Title) Dated ------------------------ This notice must remain posted for sixty (60) days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT Mr. Leo J. Halloran, for the Board. Mr. William F. Healey, of Derby, Conn ., for the respondents. Messrs. John Porcu and Thomas J. Cooke, of Ansonia, Conn., for the C. I. O. Mr. Harold Yudkin, of Derby, Conn ., for Employees Representative Association Independent Union Local #1. STATEMENT OF THE CASE Upon an amended charge duly filed by Ansonia Brass Workers Union, Local 445, International Union of Mine, Mill and Smelter Workers (CIO), herein called the CIO, the National Labor Relations Board, herein called the Board, by its Regional Director for the First Region ( Boston, Massachusetts ), issued its com- plaint dated May 27, 1946, against Paul H. Hershey and Mary J. R. Hershey, co-partners, doing business as Hershey Metal Products Company, herein called the respondents , alleging that the respondents had engaged in and were engaging in unfair labor practices within the meaning of Section 8 ( 1), (2), and (3) and Section 2 (6) and ( 7) of the National Labor Relations Act, 49 Stat . 449, herein called the Act. Copies of the complaint together with notice of hearing thereon HERSHEY METAL PRODUCTS COMPANY 703 were duly served upon the respondents , the CIO, and Employees Representative Association Independent Union, Local No. 1, herein called the Independent Union. With respect to the unfair labor practices, the complaint as amended at the hearing alleged in substance that the respondents: (1) by statements, inquiries and threats of discharge, expressed disapproval of the CIO and discouraged mem- bership therein ; (2) permitted certain employees to leave their work to circulate a petition in the presence of supervisors, renouncing the CIO, and paid said employees for the time so lost from their work; (3) by various acts initiated, formed, and sponsored labor organizations known, successively, as the Employees Committee and the Employees Representative Association Independent Union Local No. 1; (4) on or about November 12, 1945, discharged Lester Helm, their employee, and thereafter failed and refused to reinstate him, because of his CIO membership and activities; and (5 ) by such acts interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act. The respondents duly filed their answer admitting the nature and interstate character of their business and the discharge of Lester Helm, but denying all allegations of unfair labor practices. Pursuant to notice, a bearing was held at Derby, Connecticut, from June 10 to June 28, 1946, before the undersigned, Sidney Lindner, the Trial Examiner duly designated by the Chief Trial Examiner. The Board, the respondents, the CIO, and the Independent Union were represented at, and participated in, the hearing At the opening of the hearing a motion to intervene by counsel for the Independent Union was granted without objection. The Independent Union filed an answer to the complaint at the hearing denying that it was initiated, formed and sponsored by the respondents . Full opportunity to be heard, to examine and cross-examine witnesses , and to introduce evidence bearing on the issues was afforded all parties. At the close of the hearing the undersigned granted without objection a motion of counsel for the Board to conform the pleadings to the proof. Oral argument in which counsel for the Board, the respondents, and the Independent Union participated, was had before the under- signed at the close of the hearing. Thereafter briefs were filed with the under- signed by counsel for the Board, the respondents, and the Independent Union. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes, in addition to the above, the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENTS Paul H. Hershey and Mary J. R. Hershey, co-partners doing business under the firm name and style of Hershey Metal Products Company, own and operate plants at Ansonia and Derby, Connecticut, where they are engaged in the manu- facture, sale, and distribution of screw machine products. The respondents' annual purchases of raw materials consisting of brass, copper, and steel, are in excess of $50,000, more than 25 percent of which is purchased and shipped to the plants from points outside the State of Connecticut. Annually, the respond- ents' sales of finished products amount to more than $100,000, more than 80 percent of which is shipped and transported from their Connecticut plants to points outside the State of Connecticut. The respondents stipulated and the undersigned finds that they are subject to the Board's jurisdiction. 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE ORGANIZATIONS INVOLVED Ansonia Brass Workers Union, Local 445, International Union of Mine, Mill and Smelter Workers, affiliated with the Congress of Industrial Organizations, and Employees Representative Association Independent Union Local No. 1, un- affiliated, are labor organizations admitting to membership employees of the respondents. Employees Committee, unaffiliated, was a labor organization ad- mitting to membership employees of the respondents. III. THE UNFAIR LABOR PRACTICES 1 A. The contract with the 010; events prior to 1946; Interfelenee, restraint, and coercion On August 21, 1941, the CIO and Hershey Metal Products Incorporated,' entered into a collective bargaining contract which provided among other things for the recognition of the CIO as exclusive representative for all the production and maintenance employees. The contract was for 1 year, and from year to year thereafter unless either party gave the other notice in writing 30 days prior to any and all expiration dates, of their desire to alter or amend the contract. In July 1942, the CIO notified Hershey Metal Products Incorporated of its desire to reopen negotiations on a possible renewal of the contract.' The parties were unable to come to terms and under (late of September 2, 1042, they jointly requested the appointment of a 3 man arbitration board to decide the issues of wages, union security, check-off, and the establishment of a minimum wage. The parties agreed to abide by the decision of the arbitrators as reviewed by the National War Labor Board. In accordance with this request of the parties, arbitrators were designated by the company, the CIO, and the War Labor Board. The arbitrators met on October 26 and 27, 1942, and again on January 25, 1943. The arbitrators' findings which were issued on January 20, 1944, pro- vided for minimum wages for learners, for a general increase of 5 cents per hour for all other production and maintenance employees retroactive to August 21, 1942, and for union security and check-off. Thereafter respondents requested the War Labor Board to order a further hearing, with the result that the findings of the Board of Arbitrators were never put into effect 4 On May 25, 1943, a conference relative to employee vacations was held. Pres- ent were Paul Hershey, William F Healey, the respondents' attorney, Tom Grady, the respondents' then general superintendent, John J. Mankowski, International 1 The findings in this division of the report are made upon the undersigned 's evaluation of all of the evidence , due consideration having been given to the credibility of witnesses and the weight of the evidence . While the record as a whole casts some doubt as to the absolute accuracy of the testimony of a number of witnesses called by the Board, the respondents, and the Independent Union , in the undersigned 's judgment no purpose would be served by an extensive discussion of credibility , since an obvious emotional intensity has operated rather generally to color memory and to accentuate rationalization In some instances, where especially sharp contradictions exist, conflicts in the evidence are dis- cussed. On other matters, even where there is considerable variation in the evidence, the findings are made without specifically detailing all the factors of credibility considered. 3 This was the name of the predecessor firm to the iespondents herein. The partnership was organized in July 1942 3 John Porcu, International representative of the CIO, testified that he was not in office in 1942 and for that reason could not state that the CIO had notified Hershey Metal Products Incorporated to this effect . This finding is based on an exhibit introduced in evidence by counsel for the Board. 4 The record does not indicate whether a further hearing in this matter was ever held. HERSHEY METAL PRODUCTS COMPANY 705 Representative of the CIO, and a shop committee. As a result of this conference the employees were granted vacation pay. It appears that subsequent to May 1943, there was a lull in CIO activities at the respondents' plant,' with the result that the employees became delinquent in their dues payments to the CIO. In October 1943, the CIO sent a registered letter to the respondents asking them to cooperate in the enforcement of the maintenance-of-membership clause in the contract .No reply was received by the C10, and according to Porcu, the CIO's International Representative, the matter was not pressed because of the war. Thereafter, and until May 1945, the CIO distributed leaflets at the respond- ents' plant but it does not appear from the record that any collective bargaining activities were engaged in with the respondents subsequent to May 1943. In May 1945, a concerted effort was made by the CIO to reactivate its organization at the respondents' plant. On July 19, 1945, the CIO notified the respondents by registered mail of its desire to open negotiations for a new contract ° This letter and registered return receipt were returned to the CIO marked "Refused " On July 21, 1945, the CIO telegraphed the respondents requesting a meeting to reopen contract negotiations. The respondents did not reply. At or about this time, Hershey, while walking through the plant, noticed that Anthony Salerno, an employee in the Brown and Sharpe department, was operating only two machines insead of five.' Hershey asked Salerno why he did not tell "Porky"' lie was running only two machines. Hershey, according to Salerno, whom the undersigned credits, then asked him if he had signed up with the CIO, and also accused Salerno of starting the CIO in the plant. Hershey then walked away from the machines with Salerno following, and attempted to tell him that lie was not a CIO organizer. Hershey thereupon pushed Salerno slightly on the shoulder telling him to go back to his machine. James Coppola, a former employee of the respondents, testified credibly that in the latter part of July 1945, while he was working at his machine, Hershey asked him about a CIO meeting which had taken place several nights previous. Hershey also inquired of Coppola how he liked Porky, and stated that he understood that Coppola was signing up members for the CIO on the respond- ents' time. When Coppola denied that he was engaged in this activity, Hershey said that he knew differently, and warned Coppola that this practice was against the respondents' rule.' As is found hereinafter, employees who were opposed to the CIO were not only granted permission by Hershey to solicit in the plants during working hours, but did so in the presence of the respondents' supervisors. ° Porcn testified that although individual members of the CIO came to the union office with grievances, they were not successful in getting the whole committee together at one time to discuss the grievances and did not present any to the respondents. ° No new contract had been entered into between the respondents and the CIO since the signing of the original contract on August 21, 1941 4 Salerno was then active in the CIO campaign. He testified that the other three machines were not set up and ready to operate. 8 Porcu, the International Representative of the CIO, was commonly referred to as Porky °In substance Hershey admitted this conversation with Coppola. Hershey testified that he was told by Rivnyak that Coppola was signing up employees in the plant on the respond- ents' time Hershey testified further that the respondents had a no-solicitation rule as it applied to the respondents' time since 1941. Although no written notice of the rule was ever posted, the foienien weie instructed to notify the employees of the existence of the rule and according to Hershey, it was his belief that they did so. Coppola testified that he had never heard of the no-solicitation rule. 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Assuming that the respondents did have a no-solicitation rule, the undersigned finds that it was discriminatorily applied when Hershey warned Coppola to desist from engaging in CIO activities on the respondents' time lest he lose his job. On September 7, 1945, the CIO filed a petition under Section 9 (e) of the Act. According to Porcu, the parties in the presence of a Board Field Examiner orally agreed on a consent election to be held on October 26, 1945. The election was not held on that date and the parties proceeded to a formal hearing on December 11, 1945.10 During the course of the hearing in the representation ease, the evidence revealed that the corporate entity, Hershey Metal Products Incorporated, had been dissolved as of July 1, 1942, and that since that date Paul H. Hershey and Mary J. R. Hershey as co-partners were doing business under the firm name, Hershey Metal Products Company.11 As a result of this disclosure it was necessary to conduct a second hearing on March 7, 1946, at which time Employees Representative Association, Independent Union, Local No. 1, intervened in the proceeding. By order of the Board dated June 18, 1946, the CIO was granted permission to withdraw its petition in the representation proceeding. The undersigned finds that by the statements and conduct of Paul H. Hershey in questioning Salerno and Coppola concerning CIO activities and the dis- criminatory application by Hershey of the respondents' no-solicitation rule, the respondents have interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act. B. Domination and interference with the administration of the Employees Committee 1. Inception of Employees Committee ; meetings with the respondents In the latter part of January 1946, the employees of the Brown and Sharpe department requested Allan Raeburn, the respondents' superintendent, to get Paul Hershey to meet with them to discuss an increase in wages. Raeburn arranged the meeting which was held in the plant cafeteria during working hours. After listening to the employees' demands, Hershey told them that he was unable to grant a wage increase because it would be in violation of the National Labor Relations Act.' During the discussion, one of the employees asked Hershey's permission to circulate a petition among the employees in the plant and Hershey answered, "I am not saying a word." Hershey also told the gathering that he should not be conferring with them since the CIO was then attempting to organize the plant, and any conference that he participated in with the employees might be construed as an unfair labor practice.i3 The meeting disbanded and the employees returned to their machines. They did not suffer any loss of earnings as a result of their attendance at the meeting. Within several days after the above-noted meeting, Hershey was told by Mary O'Connell, his secretary, that a committee of employees wanted to meet with him. The record is not clear as to the origin of or the precise manner in which the 10 Case No. 1-R-2661 11 The evidence reveals that Paul H. Hershey and Mary J R Hershey, the respondents herein, were the majority stockholders and controlled Hershey Metal Products, In- corporated. 12 Hershey was so advised by his attorney since at the time of this meeting, there was pending before the Board the representation petition of the CIO. 13 This finding is based on the uncontradicted testimony of William McAlister, an employee of the Brown and Sharpe department. s HERSHEY METAL PRODUCTS COMPANY 707 membership of the committee, hereinafter referred to as the Employees Committee, was selected. The ecidence reveals that in several instances employees of differ- ent departments were asked by Forest Blair and William Kusako, employees of the Brown and Sharpe department, and co-chairmen of the Employees Committee, to represent their departments;4 and in other instances the employees of the department chose their representative. The Employees Committee was made up of 18 employees,10 two of whom represented the Derby plant, and the remainder the various departments of the Ansonia plant. In addition to the production and maintenance employees of the Employees Committee, the office staff was repre- sented by Mildred Green, the paymistress.'° Hershey met with the Employees Committee, '7 as requested, (luring the morning in the plant cafeteria and was told that they represented the employees.18 Kusako, acting as spokesman for the Employees Committee, told Hershey that it was their purpose to get increases for all of the employees. There was then a general discussion, with questions to Hershey by the different committeemen. Hershey took the same position with the Employees Committee that he had previously taken with the employees of the Brown and Sharpe department. Oa February 1, Hershey again met with the Employees Committee in the plant cafeteria, during working hours. O'Connell was present to take notes only of what Hershey said. In fact Hershey opened the meeting with the following remarks : "The other day when we were down here, I said I should have had O'Connell here to take notes of everything I said so that at some future date I could look back and see what I did and did not say. This is why I brought her down this morning. I don't want her to take notes on what anyone else has to say unless I tell her to. I do want on record what I have to say to you people." Among other things discussed at the February 1 meeting were : starting rates for nicw employees ; increases in wages for all employees, bonus ; a shop union ; and a petition that was being circulated in the plant by Employees Committee members According to the record of Hershey's remarks made at the meeting, he had the following to say with respect to a shop union : Someone said something about a shop union. I am not in a position or will not answer whether you should have this or not because as I said, and as I think you all know, I have no right to be talking to you. I do not care whether you people have the CIO, AF of L, Steel Workers, if you have no union at all or if you have a shop union-that is your prerogative. Now there may come a time, and I hope it does come in the near future, when we can sit down and say what we think would be best for everyone concerned. Have I answered your question-I talked but I have not said anything. You 14 Blair testified that he and Kusako spent several hours of each of 2 days in choosing committeemen . When they left their machines at the Ansonia plant to go to the Derby plant to select committeemen , they told their foreman , Whelan, where they were going. Whelan did not say anything to them and they were paid for the time spent away from their machines. 11 The committee is referred to in the record and in this report alternately as the Employees Committee and the Committee of 18. 18 Green was in charge of preparing the respondents' production and maintenance pay- roll and of paying off employees. She had two assistants under her supervision. The undersigned finds that Green was a supervisory employee. 17 This meeting took place the last part of January . Employee members of the Com- mittee were notified of meetings by Blair who called the Derby plant on the respondents' telephone after receiving Raeburn's permission , and told the Ansonia members by going from department to department in the plant. 18 It appears from the record that Hershey accepted this statement and did not question the right of the Employees Committee to represent the employees. 781902-48-vol. 76-4G 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD can only take inference of what we might be able to do but I will not give you a direct answer nor can I on account of the NLRB. When we are in a position where we can sit down and talk freely, then I will answer any questions or do anything that the majority of our people feel is to be to the best interest of the majority of our people. * * * * * * * The only summary I can give you on this is that I believe you and I can run the job better than any outsider and I can run it. Now take out of that what you want to. You asked me a question earlier in the meeting which I said I would not answer.'0 You know what the conditions are here, you know that we have decent toilets and decent this and that. * * * You are better able to come to me about conditions than Jimmie Jones,20 who is not acquainted with them. If you actually want to see them you can go in and look at them because you are employed here and can go in and see for yourself. Prior to the February 1 meeting, Kusako and Blair, upon the request of the Employees Committee, prepared a petition which bore the following heading : To: Hershey Metal Products Co. The undersigned, all employees of the Company, respectfully request that a general increase be put into effect at once. We have noticed that practically every other concern in Derby, Ansonia, and Shelton, has given their employees a general increase. We also give you notice that we do not desire any outside bargaining agencies, and especially the American Brass Workers Union-Local 445 CIO of Ansonia, Connecticut, to act for us. Kusako and Blair testified that they took the petition around the plants in Derby and Ansonia and solicited the employees for their signatures.' They showed the employees the heading on the petition set forth above, and told them that the petition was to be used for the dual purpose of getting rid of the CIO and getting a raise for the employees. These activities were carried on during work- ing hours in both plants. Fred German, an employee in the Gridley department, testified without contra- diction that the employees of the Gridley and Brown and Sharpe departments had a meeting in their department after their lunch hour, which lasted about a half hour during which time their machines were shut down and Kusako talked about the petition. The employees were told that the petition was to be used to get them a raise in pay and to form a shop union. While the employees were thus meeting, discussing, and signing the petition, the foreman of the Gridley department, Frank Rivnyak, was in the department, but did not object to the employees meeting at that time, nor did he say anything to them. Anthony Kevalas, a set-up man in the Gridley department, and a witness for the respondents, testified without contradiction that one evening after he had punched out his time card, Kusako talked to him about signing the petition, stating that it was for the purpose of forming an independent union of the respondents' employees. Kevalas signed the petition several days later in his department during working hours. "According to the notes made of Hershey's remarks at the February 1 meeting, the only question which he would not answer was the one relating to the shop union. 20 Hershey explained that by Jimmie Jones he meant any outsider. 21 Annamay Fogarty, an employee in the inspection department and a committee member, also obtained a number of signatures on the petition from the employees in her department. HERSHEY METAL PRODUCTS COMPANY 709 George Piccolo, a key man in the buffing and polishing department 22 testified without contradiction as a witness for the respondents that he had signed the petition after Kusako told him that "it was for an independent union." The under- signed credits the testimony of German, Kevalas, and Piccolo, and finds that before they signed the petition they were told that one of the purposes it was to be used for was to form an independent union 23 Kusako and Blair testified that they spent several hours on two successive days soliciting employees' signatures to the petition and were paid for the time spent away from their machines. On the first day, they did not ask anyone' s permission to do this and their foreman, George Seaker, made no inquiry of them relative to their absence from their machines. He (Seaker) however, was present in the department and circulating around the machines when Kusako and Blair went to the employees individually and asked them to sign the petition. On the second day of this activity, Seaker was told by Kusako and Blair that they were going around the plants to get more signatures on the petitions and he approved their leaving the machines. The office employees were also solicited by Kusako to sign the petition. O'Con- nell testified that she and her assistant were called from their office into the general office where in the presence of Arthur Al. Brown, Jr., the office manager, the office staff was addressed by Kusako, after which they signed the petition. As noted heretofore, the petition was one of the subjects of discussion at the February 1 meeting. Hershey asked Kusako if he had started the petition, and if he had the office staff signed up. When Hershey was told that all of the employees had not yet signed the petition, he asked, "What's the matter with the other 80 or 90 employees?" Hershey then suggested to Kusako that he get a com- plete list of all of the employees from the office and "pick out the people who have not signed." Subsequent to the meeting, Kusako conferred with Joseph Weller, the then personnel manager, and obtained from him the names of the employees who had not signed the petition. Thereafter Kusako asked these employees to sign the petition 24 According to Hershey's admission, he had the following to say regarding the petition when he again met with the Employees Committee on February 4: 25 "If we did not fulfil what we have in mind, the CIO could come in, or any other body could come in, at anytime the workers would want them to. Now, at the present time, they [CIO] have a substantial majority, at least that is what they tell us in Boston, and that is what this petition you are talking about is going to try and counteract. Now, if it does not counteract it, they are still in. That would be my thought." Hershey then told the Employees Committee that in November 1945, the respondents "went through every step we could go through to delay an elec- 22 Piccolo resigned from the respondents' employ in April 1946 , to go into his own business 23 It was the contention of counsel for the Board that Kevalas , Piccolo, and John Saukas, another signer of the petition , were supervisory employees . Although the record reveals that Piccolo was a key man in his department and to that extent his foreman was dependent on him to distribute and lay out work, and Kevalas and Saukas also assisted their foreman to some degree , it will not support a finding that they were supervisory employees as defined in the decisions , and the undersigned so finds 24 As heretofore found, Hershey in July 1945 warned Coppola that lie was violating the respondents ' no-solicitation rule In view of the finding above, the undersigned finds that the respondents discriminatorily applied their no-solicitation rule against the CIO 25 This meeting as well as the preceding and subsequent meetings between Hershel and the Employees Committee were all held in the plant cafeteria , with the employees being paid for all time spent at such meetings 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion 29 . . ." but since January 1946, were anxious to have the election held, and that the CIO was trying not to hold the election. On February 9, the Employees Committee met with Hershey and the respond- ents' attorney, William F. Healey, and presented the petition to Hershey. In conformance with the promise made to the Employees Committee at their meeting of February 1, the respondents made a photostatic copy of the petition which was then given to Healey, who on the same day (February 9), sent the same to the Boston Regional Office of the Board with an accompanying letter. In his letter Healey stated that in his opinion a strike would take place in the plant, and re- quested a Board representative to come to Ansonia to see what could be done to, either expedite the election or speed matters in some way. On the same day the Employees Committee sent the petition to the Boston Regional Office of the Board with the following letter : 27 We, the undersigned Committee, representing 90% of the Hershey Metal employees are desirous of cancelling the C. I O. applications for representing us, and of starting our own independent union. We would urgently request you to appear before us so we can present our case. The employees are in a very agitated frame of mind and want immediate action Enclosed please find signed petition. [The names of Employees Committee members are signed to the letter.] Kusako testified that the above letter was drawn up and signed by the Employees Committee in the plant cafeteria. On February 14, the Employees Committee in an "ultimatum" to the respond- ents told Hershey that they were giving him 48 hours to grant a wage increase, and that they were contemplating drastic measures and serious action if the in- crease was not forthcoming On February 16, when the Employees Committee met Hershey to receive his. reply to the ultimatum, Healey was also present. The Employees Committee was told that a notice would be posted in the plant before noon, and they so notified f he employees? At or about noon, a notice was posted in the plant signed by Hershey, notifying the employees of an average increase in wages of 162/3 percent effective February 18. In addition to the meetings of the Employees Committee and Hershey described above, Hershey admitted that several meetings took place in his office with only a few of the Employees Committee members present. It is also noted that on at least one occasion the Employees Committee was granted the use of the plant cafeteria during working hours, when they held a meeting without Hershey being present.29 "Hershey had reference to the Board election to be held on the CIO's petition which he refused to consent to in October 1945. 2' There was testimony that because of the distrust of Hershey and Healey by Employees Committee members regarding the petition, they insisted that it be photostated so that they could also send a copy to the Board. The photostating was done in the respondents' plant. 28 This finding is based on the uncontradicted testimony of Stanley Civchta , a member of the Employees Committee. Not only were the employees told of the notice to be posted regarding the increase in wages, but according to the credible testimony of Annamay Fogarty, an Employees Committee member representing the inspection department, at the completion of all Employees Committee meetings with Hershey, the members of the Committee reported to the employees of their departments exactly what had taken place- at the meetings 29 This finding is based on the uncontradicted testimony of Fogarty which the under- signed credits. HERSHEY METAL PRODUCTS COMPANY 711 It is the contention of the respondents-that the Employees Committee was not a labor organization as defined in the Act and that Hershey did not bargain with the Committee, but rather conferred with it, tried to placate its members, and did a lot of talking without saying anything. The Employees Committee in exercising its functions as the representative of the employees in the respond, ents' plant, in addition to conferring on wage demands, met with the respondents' representative to discuss various grievances that had arisen30 Whether this relationship is termed conferring with, dealing, requesting, or a form of co- operation, the Employees Committee was able to present and adjust some em- ployee grievances, make wage demands, and generally to serve employees in a representative capacity, performing all the major functions of a labor organ- ization. The evidence is conclusive that the Employees Committee was formed and functioned for the purpose of "dealing with employer" within the meaning of Section 2 (5) of the Act 31 The undersigned accordingly finds that the Employees Committee was a labor organization within the meaning of the Act. The evidence clearly establishes that the Employees Committee circulated its anti-CIO, pro-shop union petitions, and generally carried on its organizing ac- tivities, during working hours on the respondents' premises , with the respondents' consent, and were paid by the respondents for the time thus spent; that Hershey by meeting with the Committee on company premises during working hours, and by remarks addressed to it during these meetings, encouraged its formation and further organization ; that the Committee used without charge the respondents' facilities such as telephones and meeting rooms ; that a general wage increase was granted respondents' employees as a result of the activities of the Com- mittee in their behalf ; and that one supervisory employee was a member of the Committee. In view of all of the foregoing facts and the record in its entirety, the under- signed finds that the respondents dominated and interfered with the formation and administration of the Employees Committee and contributed financial and other support to it, thereby interfering with, restraining, and coercing its em- ployees in the exercise of the rights guaranteed them in Section 7 of the Act. C. Inception and formation of Employees Representative Association, Independent Union, Local No. 1 As heretofore found, the Employees Committee and Hershey discussed the question of the formation of a "shop union" at their meeting of February 1. While it is true that when this question was first broached, Hershey told the Committee members that their union affiliation, or if they had a shop union or no union at all was their prerogative, nevertheless, at a later juncture in the meeting, while discussing another phase of the same question, he said, "The only summary I can give you on this is that I believe you and I can run the job better than any outsider and I can run it. Now take out of that what you want to." 11 As heretofore found, among other things , they discussed starting rates for new employees, incentive payments and bonus, an increase in wages for all employees, and a shop union, all component parts of collective bargaining. 11 Section 2 ( 5) defines the term labor organization as "any organization of any kind or any agency or employee representation committee or plan in which employees partici- pate and which exists for the purpose in whole or in part of dealing with employers con- cerning grievances , labor disputes , wages, rates of pay, hours of employment , or conditions of work." 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kusako and Joseph Farley, a tool crib employee and a member of the Em- ployees Committee, testified that the formation of an independent union at some future date was discussed by the Employees Committee during the course of its deliberations. Thereafter, when the employees were solicited to sign the petition described in the prior section of this report, they were told! that one of the purposes of the petition was the formation of an independent union. Similarly, when the petition was forwarded to the Regional Office of the Board, the Employees Committee advised the Board that representing 90 percent of the employees it was "desirous of cancelling the C I. O. applications for representing us, and of starting our own independent union."" Hershey testified that at a meeting just prior to February 16 between himself and the Employees Committee, mention was made about forming an inside- union and when it was stated that an attorney would be needed to take care of the legal requirements involved, Hershey said, "All right, Bill Healey will do that for you." 33 According to Salerno, after Hershey and Healey left the meeting of February 16 and prior to the time the notice of wage increase was posted by the respond- ents, the members of the Employees Committee continued their meeting in the plant cafeteria and came to the decision that they would organize an independent union. Sam Homick, a Committee member, was authorized to look into the question of hiring a lawyer and agreed to do so and advise the members ac- cordingly. Salerno also testified that the fact that a notice of increase in wages was posted on February 16 was not taken by the Employees Committee to mean that their work was finished because they still had an independent union to form. Kusako testified that having received an increase in wages, the Employees Committee decided that it would enlarge into a union. On the afternoon of February 16, Homick conferred with Harold B. Yudkin, an attorney in the city of Derby, about forming an independent union.' 4 Homick told Yudkin that a mass meeting had been arranged for the night of February 18 to form a union, and asked Yudkin to attend According to Yudkin, he told Homick that he would not attend the mass meeting unless some definite plans were made for it, and suggested a conference between the employee rep- resentatives and himself on Sunday in order to decide how the Monday night meeting should be run. Kusako and Blair were advised of the proposed Sunday meeting with Yudkin and they in turn contacted the other members of the Em- ployees Committee, requesting them to attend. On Sunday, February 17, about 10 to 15 members of the Employees Committee of 18 met Yudkin at his law office.'" According to Yudkin, lie interrogated the assembled employees to ascertain if the independent union they proposed would be company dominated, because it was not his intention to participate with 33 Anthony Salerno, an employee in the Brown and Sharpe department, and an Em- ployees Committee member, testified that the formation of an independent union was discussed by the Committee on several occasions, particularly before they signed the letter of February 9 to the Board. 83 Although Hershey, in answer to a leading question, subsequently testified that his offer of Healey's services to the Employees Committee might have been made during the February 1 meeting, the undersigned credits his original testimony as set forth above It is noted and will be discussed hereinafter that the offer of Healey' s services was not accepted by the Employees Committee 14 Homick in addition to being employed by the respondents was a hheriff of the city of Shelton , Connecticut . It was in the latter capacity that Homick had previously met and performed services for Yudkin. 36 Because Yadkin's office was too small to accommodate all of the people gathered there, the meeting was moved to a Veterans of Foreign Wars meeting room in the next building. HERSHEY METAL PRODUCTS COMPANY 713 any dominated labor organization. He testified further that although he was told by the employees attending the meeting that they worked in different depart- ments of the plant, he was not aware that an Employees Committee had been in existence and had met with the respondents on different occasions. Yudkin then read a constitution and by-laws of a labor organization 36 and the Employees Committee members made suggestions and proposals for amending the consti- tution that was being read, so that when it was formally adopted it would suit the purposes of the organization that they were forming. A name for the independent union was adopted. There was then a discussion regarding the appointment of three business agents to be named, who were to work with Yudkin in expediting arrangements with the Board for the recognition of the proposed union as the bargaining agent of the respondents' employees. They also, talked about inviting the respondents' office employees into the Independent Union; about requesting a check-off in the event they were named bargaining agent ; that no committees would be able to decide or vote on any matter binding the Independent Union, and that such matters would have to be voted on by the entire body at a regular meeting; and that no union officer could continue in the same office for more than 3 consecutive years, to avoid having the Inde- pendent Union become the tool of any one person for his selfish interests. The following morning, the employees while at work in the plant were noti- fied of the meeting to be held that night. Thus, Farley testified that when employees came to the tool crib for a tool he told them of the meeting. Blair testified that he spoke to employees in his department notifying them of the meeting and told them to spread the word around. In a like manner, Kusako, told a number of the employees of the meeting, and to be sure to be there. McAl- lister testified that on Monday morning he learned that a meeting was to be held that night. Although he could not state with any definiteness who told him of the meeting, he said that word was all around his department. O'Connell testified that the Employees Committee through Mildred Green invited the office staff to attend the Monday night meeting 3Y During the afternoon of February 18, while at work, Farley testified that he received a telephone call from Hershey asking him to come to his (Hershey's) office and to bring along Kusako and Blair. A discussion ensued about the Sunday morning meeting with Yudkin, and the meeting of the employees to take place that night Hershey, according to Farley, told them that they were moving too fast in hiring a lawyer, and that he did not think they needed a lawyer. The men replied that they needed a lawyer because Hershey had retained Healey, whereupon Hershey said that Healey was retained "only for the CIO," and "there was no sense in us having a lawyer in our dealings with him." iS 36 Yudkin testified that after talking with Homick , he contacted Professor Fred Rodelt of the Yale University Law School and through him obtained a copy of a labor union constitution and by-laws which was used as a model at the Sunday meeting. 34 Yudkin testified that at the Sunday morning meeting he instructed the employees present not to perform any acts for the proposed independent union on the respondents' time or property He stated also that he was assured that the employees would be notified of the Monday night meeting , as they were coming in at the gate in the morning, again at the noon hour , and when they left work at night. Despite these instructions, the undersigned is convinced and finds that the employees were notified of the Monday night meeting by Employees Committee members on the respondents' time and property. 38 There is some confusion in the testimony as to whether this conversation took place on the afternoon of February 18, or on February 9, at the time that Healey sent a letter to the Regional Office of the Board in Boston enclosing the employees ' petition heretofore described. After consideration , the undersigned has concluded that it occurred on the afternoon of February 18, as set forth above. 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD That same afternoon, O'Connell asked Hershey if the office staff should attend the meeting. Hershey answered that he did not think they should, because the office was not interested in the union. O'Connell pointed out that since they were invited they ought to go, whereupon Hershey said it would be all right. About 100 to 150 of the respondents' employees were in the American Legion Memorial Hall at 8 p. in., the time set for the meeting to start. The meeting was delayed temporarily however, while John Porcu and Thomas Cooke, Inter- national Representatives of the CIO, who had attempted to address the meeting, were ejected from the hall 30 The meeting was then formally opened by Kusako, who was acting as temporary chairman. One of the first subjects on the order of business was the retention of an attorney by the Independent Union Yudkin addressed the meeting, pointing out among other things, reasons why it was necessary for the Independent Union to retain counsel. Yudkin then withdrew from the meeting while the question was openly discussed. The office staff, according to Farley, participated rather actively in this discussion O'Connell stated that she saw no reason for the Independent Union to hire a lawyer. When it was brought to her attention that Hershey had retained Healey as his counsel, she said that Hershey had retained Healey "only for the CIO," and would not use him against the Independent Union 90 Green similiarly expressed herself. A vote was taken and Yudkin was retained as counsel on a temporary basis. Farley also testified that in the discussion on what benefits the Independent Union could obtain, it was pointed out that a raise in wages had been obtained by the employees and the Independent Union could get other benefits for them. The question of dues was taken up, and the election of temporary officers was conducted. Of the temporary officers elected, only Dorothy King, who was elected temporary treasurer, had not previously been a member of the Employees Com- mittee. Thus Farley, temporary president, Salerno, temporary vice-president, and Lillian Bell, temporary corresponding secretary, were active members of the Employees Committee. At the conclusion of the meeting, membership ap- plications which had previously been mimeographed in Yudkin's office were distributed to the employees. The next morning O'Connell told Hershey what had transpired at the meeting, and answered his questions regarding it. Fred German, an employee in the Gridley department, testified creditably that on the morning of February 19 a fellow employee, Klik, handed out Independent Union membership applications to the employees in the department while they were working at their machines. German was given one and was asked to sign it. He returned the signed application to Klik the following day, paid him the dues, and subsequently received a dues book from him. All of these activi- ties took place during regular working hours" During the week of February 18, two representatives of a Chicago manufac- turer with whom the respondents did business were in the lespoudents' plant to inspect materials42 Hershey testified that while talking to one of them, 39 Yudkin testified that he asked Porcu and Cooke to leave the hall voluntarily. When they refused, lie explained, he put in a call for the police in order to prevent a possible breach of the peace. They left the hall just as the police entered. 40 O'Connell in substance corroborated Farley 's testimony in this regard . She testified that she could not see why they needed a lawyer if they were going to have a shop union. 41 There is also evidence that Lillian Bell handed out Independent Union membership applications to the employees in the press department on the respondents ' property but during the lunch hour. 42 Hershey testified that it was either Tuesday , Wednesday, or Thursday of the week of February 18 that these men were in his plants. HERSHEY METAL PRODUCTS COMPANY 715 whose name he thought was Mole, he learned that Mole had formerly been su- perintendent of a factory in Ohio which had dealings with both outside and in- side unions, and since he (Hershey) knew that his employees were forming an inside union, he called Farley and asked him to speak to Mole. Farley testified that Hershey called him on the telephone while he was at work in the tool crib and said that Mole had had labor difficulties in his plant similar to those in the respondents' plant and requested Farley to go to the Derby plant to see Mole and discuss the Independent Union's problems with him. According to Farley, he told Hershey he did not see anything to gain in talking to Mole, and that in any event he would not talk to him alone. Hershey told Farley to take anyone along. Farley in the company of Salerno then went to the Derby plant where they talked with Mole primarily about the fact that Hershey could not see any reason for the retention of counsel by the Independent Union. Accord- ing to Salerno, during the conversation Mole stated that his plant's problems were straightened out by the formation of their own independent union. Upon their return to the Ansonia plant, Farley and Salerno went to Hershey's office and reported to him what had taken place. They were paid for the time spent away from their work. On February 19, Yudkin spoke with Healey on the telephone, and requested that the respondents meet with a bargaining committee of the Independent Union consisting of Yudkin, Farley, and Salerno, to discuss recognition of the Independent Union as the exclusive bargaining representative of the respondents' employees, stating that they represented a majority ' By letter dated February 21, Healey told Yudkin in effect, that since there were claims by rival unions, Healey had advised the respondents not to deal with either union until an election was held ; that under the circumstances, Hershey would not meet with Yudkin and the committee to discuss wages, hours, or work- ing conditions, and furthermore there would be no advantage in simply meeting with the committee so that it could state that the Independent Union repre- sented a majority of the employees, since such a meeting might be construed by the CIO as a collective bargaining meeting. The constitution and by-laws of the Independent Union were read and adopted at its meeting held on Febiuary 25. These provided inter alia for an election of permanent officers annually in April; membership qualifications limiting mem- bership to non-supervisory employees of the respondents, excluding office work- ers ; initiation fees and monthly dues ; and the appointment of a special committee to investigate sponsorship of an Employees' Credit Union. The permanent officers were elected at the April 4 meeting, Stanley Ciuchta, a member of the Employees Committee, was elected president and Salerno was elected vice-president. Thereafter, the Independent Union held monthly meet- ings. All of the meetings of the Independent Union were held outside of the respondents' plants. On June 5, Yudkin by registered mail again requested the respondents for an appointment to discuss collective bargaining by the Independent Union for its members, and to redress existing grievances. This was followed up by a tele- phone call to Hershey who refused to discuss the matter with Yudkin. Yudkin then spoke with Healey regarding such a meeting. A meeting was arranged for June 8 in Healey's office, upon condition that they would not discuss any matters that 4i This oral request to Healey was followed up by a letter dated February 21, signed by Farley and Salerno. 44 It appears from an exhibit in evidence that at the April 4 meeting, officers were elected to fill the positions as noted above, and an executive committee was elected. 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD affected the respondents' employees. Healey, according to Yadkin, acquiesced to meeting him and a grievance committee as a matter of courtesy to a brother attorney. On June 8, a meeting was held in Healey's office attended by Yudkin, a grievance committee consisting of five employee members of the Independent Union, Hershey, and Healey. According to Yudkin, four grievances were presented to Healey, who noted them on a sheet of paper but did not make any promises for the redress of the grievances, and the meeting ended. Hershey did not speak during this meeting. Concluding findings as to the Employees Representative Association, Independent Union Local No. 1 While it is true that the Independent Union was formally adopted by the :respondents' employees as a labor organization to represent them in matters of collective bargaining at the meeting held on February 18, little significant distinc- tion can be drawn from the facts herein, between the "laying of the keel" and the "launching" of this organization. The undersigned believes that it is clear that the Independent Union was initiated and sponsored by the Employees Committee heretofore found to be a dominated labor organization. At the second meeting between the Employees Committee and Hershey, the question regarding a "shop union" was raised Even though Hershey did not answer the question thus raised by the Employees Committee, in a forthright manner, it appears from Hershey's remarks on the subject, particularly when he said, "I believe you and I can run the job better than any outsider and I can run it" that the only reasonable infer- ence that the Employees Committee could have drawn was that Hershey favored an inside union. Thus inspired, and without interference by management, and .as a matter of fact encouraged by Hershey, the Employees Committee circulated a petition among the respondents' employees informing them that one of the future uses of the petition was to form an independent union ' That such a use was contemplated by the Employees Committee appears conclusive, as is evidenced from its February 9 letter to the Board in which it enclosed the petition and stated, "We the undersigned Committee, representing 90% of the Hershey Metal employees are desirous . . . of starting our own independent union." The Employees Committee members continued to discuss the formation of the Inde- pendent Union among themselves and on February 16 resolved that it would proceed with the formal and legal requirements of organization and contacted Attorney Yudkin with that purpose in mind. When, on February 18, members of the Employees Committee who had previously disseminated the results of the meetings with Hershey to the employees, went through the plant during working hours to solicit other employees to attend the organizational meeting of the Independent Union to be held that night," the employees would reasonably assume a substantial identity with the Employees Committee. The respondents neither at this time, nor at any other time, took any steps to disestablish or disavow the Employees Committee. It made no public announce- ment whatsoever to its employees, generally to inform them of their freedom in self-organizational matters and of the respondents' indifference in that regard, thus failing to provide a cleavage between the two organizations. On the con- 96 It should be noted that the decision to hold an organizational meeting on the night of February 18 was made by the Employees Committee on February 17, while meeting with Yudkin, and until they reported for work on February 18 and passed the word around the plant, the other employees were not aware that such a meeting was to be held HERSHEY METAL PRODUCTS COMPANY 717 trary , the undersigned finds that the respondents' failure to announce its disavowal or abandonment of the Employees Committee, and their neutrality as regards their employees' organizational activities , especially when viewed in the light of the sudden and immediate formation of the Independent Union under the circumstances hereinabove outlined , confirmed the impression and belief which would reasonably arise in the minds of the employees that the Independent Union was merely a continuation of and a successor to the Employees Committee. Both the Board and the Courts have frequently enunciated the principle that the "effects of employer coercion , inherent in the establishment and maintenance of a company-dominated organization , can be dispelled only by the recreation of conditions in which genuinely free choice can be exercised . To this end it is essential if an ostensibly new organization is set up, that there be `a complete break between the two unions and a disestablishment of the objectional union' and that the employees be `effectively and unmistakably informed of such action.' s 46 About 10 members of the Independent Union testified , and a stipulation in lieu of calling other members of the Independent Union was entered into, to the effect that the Employees Committee did not influence them to join the In- dependent Union ; that to their knowledge the respondents did not indicate directly or indirectly that they would be better off with an Independent Union; that they joined the Independent Union of their own free will and accord with- out fear of any action being taken against them by the respondents and for their mutual benefit; that to their knowledge the respondents did not initiate, sponsor, or promote the formation of the Independent Union; and that to their knowledge the respondents have never controlled , affected , dominated, or in- fluenced any act or policy or internal affair of the Independent Union. This evidence has been considered by the undersigned , and it is found that it does not overcome the more positive testimony in the record that the Independent Union is the successor to the Employees Committee , and that the respondents' conduct with respect to both organizations removed from the employees ' selection of the Independent Union the complete freedom of choice which the Act con- templates . Moreover, such testimony by employees concerning the effect, or lack of effect, of the respondents' acts on them , aside from being generally un- reliable because of the very nature of the circumstances involved, is not probative of whether the respondents have actually engaged in the illegal conduct found above and upon which the unfair labor practice findings herein are predicated.." The undersigned finds that because of the circumstances preceding and at- tending the formation of the Independent Union, related in detail above, the respondents' employees would reasonably conclude " that the company approved 40 Standard Oil Company v N L. R B, 138 F. (241) S85 (C C A 2) , N. L R. B v. Southern Bell Telephone and Telegraph Co , 319 U S 50 , Sperry Gyroscope Co , Inc v. N. L. R B, 129 F (2d) 922 (C C A 2) In Westinghouse Electric and Mfg Co. V N. L R B, 112 F (2d) 657 (C C A 2) aff'd 312 U. S. 660, the Circuit Court of Appeals said The theory is that in cases such as this, where an unaffiliated union seems to the employees at large to have evolved out of an earlier joint organization of employer and employees, the Board may take it as datum, in the absence of satisfactory evidence to the contrary, that the employees will suppose that the Company approves the new, as it (lid the old, and that their choice is for that reason not as free as the statute demands. 41 Western Cartridge Co. v. N. L. R. B, 134 F. (2d) 240 (C C A. 7), cert. denied 320 U. S. 746. 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the new, as it did the old" organization and that their choice was "for that reason not as free as the statute demands." 98 Counsel for the Board raised the contention that the meeting of .Lune 8, de- scribed fully hereinabove, constituted recognition of the Independent Union as the collective bargaining representative of the respondents' employees. As noted heretofore, the respondents at all times refused the Independent Union's demand that it be recognized as the exclusive collective bargaining representative of its employees. Healey, prior to the June 8 meeting, told Yudkin that he would not discuss any matters affecting the respondents' employees. At the June & meeting, the grievance committee presented a number of grievances, but no dis- cussion was had on them, nor was there the usual "give" and "take" common to most bargaining conferences. The undersigned is not convinced that this isolated meeting, at which the respondents merely listened to employees' grievances, constituted recognition of the Independent Union as the exclusive collective bargaining representative of its employees, and he so finds. The fact that the Independent Union was not granted recognition by the respondents and accordingly was unable to function as a bargaining agency is not inconsistent with the undersigned's findings that the Independent Union was a continuation of and successor to the company-dominated Employees Committee 48 D. The Employees Independent Association Credit Union, Inc. The constitution and by-laws of the Independent Union adopted by the member- ship at its February 25 meeting, provided that a special committee shall be appointed to investigate the sponsorship of an employees' credit union. On March 17 seven employees of the respondents included among whom were Ciuchta, Farley, and Bell, filed an application for license as a credit union with the Bank Commis- sioner of the State of Connecticut, setting forth among other things that the name of the proposed credit union was to be Employees Representative Association Credit Union Inc. In addition, the application appeared to limit the proposed field of membership for the credit union to all of the respondents' production and maintenance employees who are members of the Independent Union, excluding all office and clerical employees with authority to hire and discharge.0° On April 1 the Bank Commissioner approved the license. Shortly thereafter, Yudkin con- tacted Healey on several occasions, endeavoring to obtain Healey's consent to have the respondents deduct from employees' pay, on authorization by the employees, moneys for the purchase of shares of stock in the credit union. Healey indicated to Yudkin that he would advise the respondents not to allow such pay deductions because in his opinion they were in violation of State law. Subsequently, however, after Healey conducted an investigation into the matter, Healey told Yudkin that if he obtained written authorizations from the employees, he (Healey) would advise the respondents to make deductions for the credit union. During the month of May 1946, Green, after receiving authorization from Arthur Brown, the respondents' office manager, started making deductions from employees' pay upon 48 See footnote 46, supra. 4° See N. L R. B v. J. Freezer i Sons, Inc, 95 F. (2d) 840 (C. C. A 4), in which the Court enforced the disestablishment of an organization although there was no evidence accoi ding to the Court that it "has ever functioned as a bargaining agency." 60 A partial list of credit union members admitted into evidence over the objection of counsel for the Board revealed that employees other than Independent Union members had become members of the credit union. HERSHEY METAL PRODUCTS COMPANY 719 written authorization, and turning over each week to the treasurer of the credit union the money thus deducted. The Board in its amended complaint alleges that these deductions by the respondents were for the purpose of assisting the Independent Union in its organ- ization and existence. The undersigned is of the opinion and finds that the respondents did lend prestige and added strength to the Independent Union as a result of its deductions for the purchase of credit union shares, thereby assisting the Independent Union E. The discriminatory discharge of Lester Helm Lester Helm was an employee of the respondents from August 1943 until November 12, 1945. Helm was a machine operator in the Gridley department ; in addition for some- time prior to his discharge, he did some grinding of tools and setting up of less difficult jobs on the machines." Helm received 6 increases in pay during his period of employment and prior to his discharge was earning $1.00 per hour plus bonus 52 In or about June or July 1945, Helm became a member of the CIO and attended meetings. After V-J day, Helm's CIO activities increased, in that he solicited the membership of employees and endeavored to get them to attend meetings. He wore a CIO button while in the plan t.13 During October 1945, according to the uncontradicted testimony of Helm which the undersigned credits, Rivnyak came over to his machine with a CIO leaflet regarding the forthcoming Board election which was to be held if the parties consented thereto," and after talking about the leaflet's contents stated that he did not think the CIO had any chance. On or about November 8, Helm after receiving permission from Rivnyak,65 attended a conference as one of three shop representatives for the CIO, in Healey's office, to discuss the possibilities of holding a consent election. After returning to the plant 65 Rivnyak came over to his machine and according to Helm, told him that he (Rivnyak) was out to get him; that he should stay at the machines as- 61 Tool work and the setting up of machines was done by only a few men in the depart- ment who had long experience. According to Frank Rivnyak, foreman of the Gridley department, Helm was able to do some of this work for about the last year of his employ- ment with the respondents "Bonus payments were based on percentages of productivity of the machines operated by the employees Helm consistently received his bonus and no evidence was offered to show that he ever lost any bonus. According to Rivnyak, this was possible because Helm was "doctoring" his machine time tickets Rivnyak testified further that he warned Helm during the year 1945 against this practice, but despite the warning Helm continued. Rivnyak reported this "doctoring" activity to Harold Haskell, the respondents' assistant superintendent, who told Rlvnyak to reprimand Helm. Rivnyak stated that other employees were also guilty of the same practice but the respondents offered no evidence to prove Rivnyak's claim Helm denied ever doctoring his machine time tickets and testified that when the particular job on the machine was completed, the machine time ticket was placed on the foreman's desk, and not seen again by the operator. Rivnyal{'s testimony in this regard is not credited, and the undersigned finds that Helm earned his bonus consistently as a result of his good productivity "In or about the end of October 1945, the CrO began a campaign for a 30-percent wage increase and the button Helm wore bore the words "30 percent for the CIO " 54 As noted previously, the respondents did not agree to a consent election and went to a hearing which was held in December 1945 and March 1946 55 Helm testified that he told Rivnyak that he had to attend a committee conference in Hershey's office at 9 a. m. Because of Hershey's absence from the plant, the confer- ence was held at Healey's office. Present in addition to Helm as shop representatives of the Union were Kusako and Salerno, a Board Field Examiner, an International Representa- tive of the CIO, and Healey. Si The conference lasted about 1 hour from 10 to 11 a in. 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD signed to him and that he would not receive any help; that if his job was not done well and if he made any scrap he would lose his job, that if he was late or absent he would lose his job; and that Rivnyak was not going to stab him in the back but was giving him fair warning." The following morning, November 9, Helm, before work, distributed CIO leaflets in front of the plant. When Hershey drove into the plant he was handed a leaflet by Helm. Rivnyak saw Helm distributing the leaflets as he drove into the plant, On the morning of November 12, Helm upon approaching his machine to go to work saw Rivnyak and Allen Raeburn, the plant superintendent, standing there. According to Helm, when they saw him, they looked up at the clock, separated, and walked away. That afternoon at about 4 p. in Rivnyak told Helm that because of the lack of work, he would have to let him go. When Helm remonstrated with Rivnyak, pointing out that there were men working there who had less seniority than he, Rivnyak said it just had to be that way.58 Later that week at a conference held in Healey's office to discuss Helms discharge, the respondents in addition to the reason given Helm at the time of his discharge, advanced as an additional reason that he was habitually late In February 1946, at a conference called by a Board Field Examiner who was investigating the Helm discharge, the respondents in addition to the reasons given previously, stated that Helm had been absent from his job. At the hearing, the respondents, in addition to offering testimony to substan- tiate the reasons set forth above for Helm's discharge, presented testimony to the effect that he was intoxicated on the job. It is clear from the record and the undersigned finds, that the respondents knew of Helm's CIO activities. As found heretofore, the respondents engaged in acts of interference, restraint, and coercion in violation of Section 8 (1) and 8 (2) of the Act. Under the circumstances, therefore, it is necessary to determine whether the respondents discharged Helm because of his CIO activities or for the reasons as set forth in the testimony they adduced at the hearing. During the war years the respondents were engaged practically 100 percent in production for the war effort In June 1945, as a result of cancellations of war contracts, the respondents sent a letter to each employee calling attention to the cancellations, and adi ising that if lay-offs became necessary in the future, the respondents would make them in the order of seniority involved. It is apparent 67 Rivnyak categorically denied that he talked with Helm at all on the day he attended the conference in Healey's Office. Rivnyak testified that about 3 months before this date Helm had asked Anthony Kevalas, the head set-up man in the Gridley department, to help him (Helm) set up a job on a machine he was operating. Kevalas, according to Rivnyak, reported that the job was a simple one and since Kevalas had other rush jobs to finish, Helm should work on his job by himself Helm then complained to Rivnyak that everybody was trying to stab lain in the back. Rivnyak told Helm that "Nobody is trying to stab you in back or in the front, you just have to feel better towards everybody You mis- undeistand everybody." Rivnyak from his demeanor on the witness stand impressed the undersigned as an unreliable and untrustworthy witness His overall testimony in the main was marked by vague and unconvincing generalities which lie was unable to support by detail; his memory was rather hazy in spots and he could not remember several occurrences which happened only several months before the hearing, in a number of respects his testimony was at variance with that of other respondents' witnesses. The undersigned does not credit Rivnyak's denial and finds that the conversation took place substantially as testified to by Helm. i Rivnyak testified that he told Helm he was discharged for lack of work, lack of interest, and latenesses As found above, Rivnyak was not a credible witness. It is also noted that an exhibit in evidence prepared by the respondents sets forth as the reason, for Helm's discharge "lack of work." The undersigned credits Helm's version of what Rivnyak told him when he was discharged. HERSHEY METAL PRODUCTS COMPANY 721 from the record that when Helm was discharged, at least three employees in the Gridley department, with less seniority than Helm, were retained on their jobs. With respect to the contention that there was a lack of work, the record reveals that the respondents had a night shift consisting of three employees who were engaged in Gridley department operations at about the time of Helm's discharge, and continued this night shift regularly until May 1946 According to Hershey, the only reason for discontinuing the night shift then was because the men were producing too lnu2h scrap and the operation was unprofitable It is worthy of- note that Wesley Ploss, one of the men laid off when the night shift was dis- continue(], was recalled to work clays in the Gridley department a week later.59- George Churma was transferred from another department to the Gridley de- partment on November 26, 1945, to do the same type of work that Helm did. The undersigned finds this contention without merit. Helm admitted that his record of tardiness throughout his period of employ- ment was bad.°° Helm testified without contradiction that the few minutes tardiness in the morning was usually offset by his frequently working several minutes after regular hours without compensation G1 He denied that he was, ever reprimanded or warned that if his lateness record did not improve, it would result in the loss of his job." Rivnyak testifying in contradiction to Helm's_ denial that he received warnings about tardiness, stated that almost every week for 3 months before Helm's employment was terminated, he warned Helm about being late. Helm's excuse, according to Rivnyak, was that he was unable to purchase an alarm clock. Rivnyak testified further that he told Helm that since- all of the other employees in the Gridley department came in on time, he could, not see why Helm was unable to do the same thing. The undersigned does not credit Rivnyak's testimony in this regard. As already indicated Rivnyak's- testimony leas generally in conflict with other respondents' witnesses, and unconvincing G3 Harold Haskell, assistant plant superintendent, testified that he remembered talking to Helm on two occasions, regarding tardiness. The first time about 6 months previous to his discharge when he did not warn Helm but merely called his tardiness record to his attention, and the second about a month previous to his discharge at which time he told Helm that unless his record improved, he could not be retained by the respondents. Helm testifying in rebuttal stated that about a year and a half prior to his- discharge, Haskell came into the Gridley department with a handful of time cards and spoke to several of the employees. Haskell upon approaching Helm, showed him his time card and after remarking that it was bad said, "Try to come in a little earlier if you can." It is significant that Haskell spoke to Helm, regarding only his tardiness, despite the fact that at the hearing he testified 11 floss was hired by the respondents in March 1946. 60 The record reveals that after his second week of employment and until the date of discharge, Helm was late on the average of 4 times weekly 0In this respect it is also noted that if an eniploiee was late more than 1 minute, he lost 15 minutes pay, and proportionately for every fraction of lateness over 15 minutes i2 Helm testified that the nearest thing to a reprimand regarding his tardiness was when Rivnyak shook his head at him and said, "What a guy, what a guy " 63 The fact is that a considerable number of the other employees in the department, also had very poor lateness records which Rivnyak admitted under cross-examination When it was called to Rivnyak's attention that employee Duane Young was late on 7G, occasions from April 1 to November 12, 1945, Rivnyak stated that he always knew Young was going to be late because he telephoned the plant and reported the same to Rivnyak The undersigned credits Helm's testimony that he was not warned regarding his tardiness, by Rivnyak. 722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that he had seen Helm intoxicated on a number of occasions, normally a much more grievous offense. It is also worthy of note that in spite of the alleged warnings given Helm regarding his tardiness, Helm was retained by the re- spondents after V-J Day, even though lie had less seniority than quite a number of the several hundred employees whom the respondents released when it cut its production and maintenance force. Haskell testified further that he spoke to only one other employee of the Gridley department regarding tardiness al- though as noted heretofore, a considerable number of the employees of the said department, similarly to Helm, were guilty of tardiness The record reveals that no employee other than Helm was ever discharged because of tardiness. The undersigned does not credit Haskell's testimony that he warned Helm about the possible loss of his job if he did not come in on time. Upon the entire record and particularly since Helm was never warned that he would lose his job even though he was tardy on the average of 4 times weekly during his period of employment; other employees with bad tardiness records were neither dis- charged nor otherwise disciplined ; and Helm's production was satisfactory despite his latenesses, the undersigned is convinced and finds that the re- spondents resorted to the defense of tardiness as an afterthought. As noted previously, Helm's intoxication was raised for the first time at the hearing. Thus Rivnyak testified that about 6 months prior to Helm's discharge, he observed that Helirr was intoxicated while at work in the plant. Rivnyak admitted that while it was not customary to allow an employee under the in- fluence of liquor to operate machines, since it was not only possible that the said employee might do serious bodily injury to himself but might also destroy ,or damage considerable amounts of valuable material, yet Rivnyak on this occasion permitted Helm to remain on the plant premises and operate his ma- chines 84 Haskell testified that he saw Helm in the Gridley department on more than one occasion during the year 1945, when he had been drinking.' Haskell did not do anything about this matter other than to discuss it with Rivnyak. Kevalas testified that he saw Helm come into the plant under the influence of liquor on a number of occasions and reported these occurrences to Rivnyak. ,On these occasions Helm, according to Kevalas, did not continue operating his machines but spent his time in the men's room with other employees who had brought liquor into the plant, and were congregated there to drink it °6 Helm denied that he ever had been under the influence of liquor on the job. He admitted that on a few occasions, he and some other employees worked on a Saturday until noon, then left the plant, had a few drinks, returned to the plant, changed their clothes, and went home. He testified that on these occa- sions he did not think it was fair to himself to work and he reported to Rivnyak that lie was going home.67 With respect to the contention that Helm displayed a lack of interest in his work, the undersigned is of the opinion that much discussion on this subject is 64 Rivnyak testified that lie had another employee "keep his eye" on Helm. "Haskell could not definitely state the number of times he had seen Helm in the plant Under the influence of liquor , other than to state there were several occasions 66 As found heretofore , Helm never lost a bonus It seems hardly likely to the under- signed that an employee who spent as much time drinking in the men's room , as Kevalas claims Helm did, would consistently receive his bonus. The undersigned does not credit Kevalas' testimony in this regard. 67 The testimony of Rivnyak , Haskell, and Kevalas regarding Helm's intoxication while at work in the plant is conflicting and unconvincing The undersigned credits Helm's testimony in this regard. HERSHEY METAL PRODUCTS COMPANY 723 not warranted. Suffice it to say that it is the belief of the undersigned that where an employee, as Helm, received six increases in pay over a two and a half year period, consistently received his bonus, was retained when the production and maintenance staff was cut even though he had less seniority than some em- ployees who were terminated, and was praised by the plant superintendent for his fine work on a particularly big and important job,' it can hardly be said that such an employee lacked interest in his work. The undersigned finds this contention without merit. The respondents in their brief raise the contention that if Helm was discharged for CIO activity, why were not Kusako, Salerno, and Coppola discharged? The fact that other CIO members were not discriminatorily treated does not establish absence of discrimination toward one CIO member.' It is highly improbable that any employer would tolerate for the period of Helm's employment an employee of the character described by the respondents' witnesses ; it is equally improbable that an employee such as Helm would be kept on a pay roll for two and a half years if his efficiency was impaired almost daily because of tardiness, and if his insobriety on the job was known to the respondents' supervisors. It is also worthy of note that in spite of the re- spondents' advice to its employees in June 1945, that when lay-offs became neces- sary they would be made in the order of seniority involved, Helm, who although a CIO member had not at that time openly participated in its activities, was re- tained after V-J Day even though he had less seniority than quite a number of the several hundred employees who were released at that time; on the other hand, in November 1945, after Helm had become the most active employee in behalf of the CIO and wore his CIO button in the plant, the respondents again cast aside their seniority policy, this time when they discharged Helm allegedly because of lack of work, even though he had more seniority than at least three other employees who were retained in the Gridley department. "While proof of the presence of proper causes at the time of discharge may have relevancy and circumstantial bearing upon what otherwise might appear as a discrimina- tory discharge, such proof is not conclusive. The issue is whether such causes in fact induced the °discharge or whether they are but a justification in retrospect." 70 From the above and upon the record as a whole the undersigned is convinced and finds that the respondents made "an obvious effort to construct a case against Helm and to cover up the real reason for his discharge "" The undersigned finds that Helm was in fact discharged because of his activities on behalf of the CIO, and that the respondents by thus discharging Helm, discriminated in regard to his hire and tenure of employment, thereby discouraging membership in the CIO, and interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondents set forth in Section III, above, occurring in connection with the operations of the respondents described in Section I, above, 68 ltaeburn, according to Helm's uncontradicted testimony which the undersigned credits, praised his work on the job that the respondents did for the Bridgeport Brass Co ' See Matter of Montgomery Ward °C Co , Inc, 31 N L R B 780 70 Mattel of Kelly-Springfield Tire Company/, 6 N L R B 325, enf d 97 F (2d) 1007 (C C A 4) "N L R B v Arcade-Sunshine Co, 118 F (2d) 49 (C A D C 781902-48-vol. 76-47 724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 thereof. V. THE REMEDY Having found that the respondents have engaged in certain unfair labor practices affecting commerce, the undersigned will recommend that they cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. It has been found that the respondents have dominated and interfered with the formation and administration of, and contributed support to the Employees Committee. Since the Employees Committee as such has ceased to function, no order to disestablish it will be recommended ; but since this organization has been continued and succeeded by the Independent Union, it will be rec- ommended that in the event the Employees Committee should subsequently resume functioning, the respondents refrain from recognizing it as the repre- sentative of any of the respondents' employees for the purpose of dealing with the respondents concerning grievances, labor disputes, wages, rates of pay, hours of employment, and conditions of employment. The present and continuing existence of the Independent Union operates to prevent the exercise by the employees of their free choice of bargaining representatives guaranteed them under the Act. Therefore in order to effectuate the policies of the Act, and to free the employees from the effect of the respondents' unfair labor practices, it will be recommended that the respondents withhold recognition from the Inde- pendent Union as the representative of any of the respondents' employees for the purpose of dealing with the respondents concerning grievances, labor dis- putes, wages, rates of pay, hours of employment, and conditions of employment, and completely disestablish it as such representative. It has also been found that the respondents have discriminated in regard to the hire and tenure of employment of Lester Helm. thereby discouraging membership in the CIO. The undersigned will recommend that the respondents offer Helm immediate and full reinstatement to his former or substantially equivalent position,' without prejudice to his seniority and other rights and privileges ; and that the respondents also make him whole for any loss of pay, if any, which he suffered as a result of the discrimination against him, by pay- ment to him of a sum of money equal to the amount which he normally would have earned as wages from the date of his discharge to the date of the respond- ents' offer of reinstatement, less his net earnings during such period." The conduct engaged in by the respondents discloses a propensity and a determination on the part of the respondents to engage in persistent efforts, but not necessarily by the same method, to defeat self-organization by their employees. 72 In accordance with the Board's consistent interpretation of the term, the expression "former or substantially equivalent position" is intended to mean "former position wherever possible, but if such position is no longer in existence, then to a substantially equivalent position " See Matter of The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 N L. R B 827. 73 By "net earnings" is meant earnings less expenses, such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working elsewhere than for the respondents, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company, 8 N. L. R. B. 440 Monies received for work performed upon Federal, State, county, municipal, or other work-relief projects shall be considered as earnings See Republic Steel Corporation v. N L R. B., 311 U. S. 7. HERSHEY METAL PRODUCTS COMPANY 725 Because of the respondents' unlawful conduct and their underlying purpose, the undersigned is convinced that the unfair labor practices committed by the respondents are related to other unfair labor practices proscribed, and that danger of their commission in the future is to be anticipated from the respond- ents' conduct in the past. The preventive purpose of the Act will be thwarted unless the recommended order is coextensive with the threat. In order, there- fore, to make effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor practices, and thereby minimize industrial strife which burdens and obstructs commerce, and thus effectuate the policies of the Act, it will be recommended that the respondents cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following: CoNcLUsIoNs of LAw 1. Ansonia Brass Workers Union, Local 445, International Union of Mine, Mill and Smelter Workers, affiliated with the Congress of Industrial Organiza- tions, and Employees Representative Association Independent Union Local No. 1, unaffiliated, are labor organizations, and Employees Committee was a labor organization, within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondents have engaged in and are engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 3. By dominating, interfering with, and contributing support to the formation and administration of the Employees Committee and its successor, Employees Representative Association Independent Union Local No. 1, the respondents have engaged in and are engaging in unfair labor practices, within the meaning of Sec- tion 8 (2) of the Act. 4. By discriminating in regard to the hire and tenure of employment of Lester Helm, thereby discouraging membership in a labor organization, the respondents have engaged in and are engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, and upon the entire record in the case, the undersigned recommends that the respondents, Paul H. Hershey and Mary J. R. Hershey, individually and as co-partners, doing business as Hershey Metal Products Company, their agents, successors, and assigns shall: 1. Cease and desist from : (a) Dominating or interfering with the administration of Employees Com- mittee, or its successor, Employees Representative Association Independent Union Local No. 1, or with the formation and administration of any other labor organiza- tion, and from contributing support io Employees Committee or Employees Representative Association Independent Union Local No. 1, or any other labor organization ; (b) Discouraging membership in Ansonia Brass Workers Union, Local 445, International Union of Mine, Mill and Smelter Workers (CIO), or any other labor organization of their employees, by discrimination in regard to hire or tenure of employment or any term or condition of employment ; 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) In any other manner interfering with, restraining or coercing their em- ployees in the exercise of the rights to self-organization, to form labor organiza- tions, to join or assist Ansonia Brass Workers Union, Local 445, International Union of Mine, Mill and Smelter Workers (CIO), or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will effec- tuate the policies of the Act : (a) Withhold recognition from and completely disestablish Employees Repre- sentative Association Independent Union Local No. 1 as the representative of any of their employees for the purpose of dealing with the respondents concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other rights and privileges ; 74 (b) Offer to Lester Helm immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges ; 74 (c) Make whole Lester Helm for any loss of pay he may have suffered by reason of the discrimination against him by payment to him of a sum of money equal to an amount determined in the manner set forth in the Section above entitled "The remedy" ; (d) Post at their plants at Ansonia and Derby, Connecticut, copies of the notice attached to the Intermediate Report herein marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the First Region, shall, after being duly signed by the respondents' representative, be posted by the respondents immediately upon receipt thereof and maintained by them 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 respondents to insure that said notices are not altered, defaced, or covered by any other materials; (e) File with the Regional Director for the First Region on or before ten (10) days from the date of the receipt of this Intermediate Report, a report in writing setting forth in detail the manner and form in which the respondents have complied with the foregoing recommendations. It is further recommended that unless on or before ten (10) days from the re- ceipt of this Intermediate Report, the respondents notify said Regional Director in writing that they will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondents to take the action aforesaid. As provided in Section 203 39 of the Rules and Regulations of the National Labor Relations Board, Series 4, effective September 11, 1946, any party or counsel for the Board may, within fifteen (15) days from the date of service of the order transferring the case to the Board, pursuant to Section 203 38 of said Rules and Regulations, file with the Board, Rochambeau Building, Wash- ington 25, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings, upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof ; and any party or counsel for the Board may, within the same period, file an original and four copies of a brief in support of the Intermediate Report. Immediately upon the filing of such statement of exceptions and/or briefs, the 74 See footnote 72, supra. HERSHEY METAL PRODUCTS COMPANY 727 party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203 65. As further provided in said Sec- tion 203 39, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board. SIDNEY LINDNER, Trial Examiner. Dated November 22, 1946 APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE HEREBY DISESTABLISH EMPLOYEES REPRESENTATIVE ASSOCIATION, INDE- PENDENT UNION LOCAL No. 1, as the representative of any of our employees for the purpose of dealing with us concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and we will not recognize it or any successor thereto for any of the above purposes. WE WILL. NOT dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it. WE \ILI OFFER to the employees named below immediate and full reinstate- ment to their former or substantially equivalent positions without prejudice to any seniority or other rights or privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. Lester Helm We will not in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist ANSONIA BRASS W'ORI{ERs UNION, LOCAL 445, INTERNATIONAL UNION OF MINE, MILL AND SMELTER WORKERS (CIO), or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. All our employees are free to become or remain members of this union, or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organi- zation. _ PAUL H. HERSHEY, MARY J. R. HERSHEY, d/b/a HERSHEY METAL PRODUCTS COMPANY, Employer. By ----------------------------------------------- (Representative ) ( Title) Dated ------------------------ NOTE: Any sf the above-named employees presently serving in the armed forces of the United States will be offered full reinstatement upon application in accord- ance with the Selective Service Act after discharge from the armed forces. This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.