Reeves-Ely Laboratories, Inc.

In the Matter of REEVES-ELY LABORATORIES, INC. AND REEVES INSTRU- MENT CORPORATION and MARTIN W. SCHWARTZ, ALFRED HENLEY, MORTON L. PACKER, GEORGE SCHWARTZ AND VINCENT FURNARI and FEDERATION OF ARCHITECTS, ENGINEERS, CHEMISTS AND TECHNICIANS, METROPLOITAN LOCAL 231, CIO, INTERVENOR Case No. 2-C-6208.-Decided March 16, 1948 Vincent F. Rotolo, Esq., for the Board. Messrs. Cravath, Swaine & Moore, by Thomas F. Hilbert, Jr., Esq., of New York City, for the respondents. Mr. Thomas C. Sullivan, of New York City, for the Intervenor. DECISION AND ORDER On March 19, 1947, Trial Examiner Henry J. Kent issued his In- termediate Report in the above-entitled proceeding, finding that the respondents had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report at- tached hereto. Thereafter, the complainants and the Union filed exceptions to the Intermediate Report and a supporting brief, and requested oral argument before the Board. The request for oral argument is hereby denied, inasmuch as the record and briefs, in our opinion, adequately present the issues and contentions of the parties. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial errors were committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, except insofar as they are incon- sistent with our findings, conclusions, and order hereinafter set forth." 'Those provisions of Section 8 (1), 8 (3 ), and 8 ( 4) of the National Labor Relations Act which the complaint alleged were violated by the respondents are continued , without material amendment, so far as their applicability to the facts of this case is involved, in Section 8 (a) (1), 8 (a) ( 3), and 8 (a) (4) of the Act, as amended by the Labor Manage- ment Relations Act, 1947. 76 N L. R B., No. 106. 728 REEVES-ELY LABORATORIES, INC. 729 1. The Trial Examiner found that the respondent, Reeves-Ely Laboratories, Inc., did not violate Section 8 (1) of the Act by interro- gating employees concerning union activity. We do not agree. The record shows that on March 1, 1946, Garrett, the respondent's plant supervisor, summoned employees Boyer, Peterson, Martin Schwartz, Packer, and McCann to the personnel manager's office. Credible, uncontradicted testimony of the last three named employees, corroborated in material respects by Garrett, established, and we find, that at the personnel manager's office Garrett asked Martin Schwartz, "Has Henley [the leader of the union movement] been talking unions to you?"; that he asked Packer, "What is this I hear about you guys and Henley talking union affairs?"; and that he asked McCann if there was any truth to a rumor that the employees were forming a union. Schwartz, Packer, and McCann replied in substance that there had been some general discussions among the employees about unions, but that they knew of no labor organization at the respondent's plant. Garrett then asked about possible causes of employee unrest. Those present replied that the only cause of dissatisfaction was continuing officious conduct by one of the draftsmen. The Trial Examiner found that Garrett's interrogation about union activity was privileged, apparently on the ground that it was inci- dental to a legitimate effort by him to ascertain and correct the cause of reported dissatisfaction among the employees.2 We do not agree. The nature of Garrett's questions suggests that he was quite as inter- ested in obtaining information concerning the status of unionization at the plant as he was in discovering correctable causes of dissatisfac- tion among the employees. Garrett could easily have inquired about the latter matter without going into the former. However, regardless of Garrett's subjective purpose, we find that his questioning of the employees as to union activity was an unwarranted, coercive inter- ference in a concern which was exclusively their own, and that his questioning, therefore, violated Section 8 (1) of the Act.' 2. The Trial Examiner found that the allegations of the complaint that the respondent, Reeves-Ely Laboratories, Inc., discharged Martin Schwartz on March 7, 1946, and failed to reinstate him, in violation of the Act, are not sustained by the proof. We agree. So far as the evidence shows, the decision to discharge Schwartz was made solely by Plant Supervisor Garrett. Garrett testified that he reached this ' Garrett testified credibly that before calling the meeting on March 1, described above, he had received several reports indicating that the employees were disturbed about some- thing and were talking about organization . He explained at the hearing, "I wanted to find out what the basis was of the union. I wanted to find out what was griping them." 9 Matter of Ames Spot Welder Go., Inc., 75 N. L. R. B. 352, footnote 6 and cases referred to therein. 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD decision because of personal offense he felt at Schwartz's question on March 6, 1946, as to whether he [Schwartz] was being given a "run around" by the respondent with respect to a higher classification and a pay increase and because, upon inquiry by Garrett on March 7, 1946, Chief Draftsman Pross reported that Schwartz's services were not essential and Engineer Dickerson reported that Schwartz was not a competent draftsman. The Trial Examiner credited the foregoing testimony of Garrett and so do we. We shall therefore dismiss the complaint insofar as its alleges that Reeves-Ely Laboratories, Inc., discriminatorily discharged and failed to reinstate Martin Schwartz. 3. The Trial Examiner found that the proof failed to establish that the respondents, Reeves-Ely Laboratories Inc., and Reeves Instru- ment Corporation, violated the Act by their discharge on August 2, 1946, of Draftsmen Alfred Henley, Morton L. Packer, George Schwartz, and Vincent Furnari 4 We do not agree. At the time they were discharged, the above four employees con- stituted the Union's organizing committee at the respondents' plant. They were the only employees there who had perfected their member- ship in the Union by signing membership cards and paying initial fees. The record is clear that the respondents discharged them upon the decision and order of Harry Belock, management's highest rank- ing representative in employment matters at the plant here involved. The Trial Examiner's finding that these discharges were not proved to have been discriminatory is based in part upon the premise that Belock acted without knowledge of the union activities of the four employees. This premise is contrary to the evidence. Belock himself testified, and we find, that lie knew of such union activities for a sub- stantial time before the discharges. In affirmative explanation of his reasons for discharging Henley, Packer, George Schwartz, and Furnari, Belock testified variously as follows : 'At all times relevant to this case before July 1946 , Reeves-Ely Laboratories, Inc, employed the persons and operated the plant here involved as an antra -company depart- ment, known as Reeves Sound Laboratories Division-Apparatus Department Reeves-Ely Laboratories , Inc., managed directly the financial affairs of this department. Harry Belock and Edward Garrett , as employees of Reeves-Ely Laboratories , Inc., and as officers in the department, managed production and employment within the department . In July 1946, Reeves Sound Laboratories Division-Apparatus Department was Incorporated in New York as a wholly owned subsidiary corporation of Reeves -Ely Laboratories, Inc., entitled Reeves Instrument Corporation . Such incorporation involved no change in the plant or methods of its operation , and only minor changes in personnel . Plant Supervisor Gaiiett testified that the only purpose of the incorporation was to secure a new name for the department, to better describe its activities , and to make a slight shift of officers. Both Reeves-Ely Laboratories , Inc and Reeves Instrument Corporation were charged in the complaint with responsibility for the discharges of Henley , Packer, George Schwartz, and b'urnari . While both contended that these discharges were for valid reasons, neither disputed its responsibility for them We find that the operations of Reeves-Ely Labora- tories, Inc and Reeves Instrument Corporation were so integrated as to make them both employers , within the meaning of Section 2 ( 2) of the Act, of the four employees named above. REEVES-ELY LABORATORIES, INC. 731 I didn't want to jeopardize these men, but I couldn't consult with them. They were a lot of prima donnas. We fired these five 5 men because they were not worthwhile. They could have been worthwhile if they had used their heads. The only thing I complain about is that instead of sticking to the table and drawing and trying to do a job and learn what is going out, they are all trying to figure out ways to connive. That is the objection I have. I think their main trouble was they got big ideals. They don't know whether to stick to the job or get twisted up. I think that things were starting to be put in their minds. I can guarantee that the fours of them sitting there are sorry that they ever got involved with Henley [the leader of the union nmovement] and got thrown out. The issue before us is whether Belock's above and his other similar complaints about the four employees refer essentially to asserted in- efficiency and insubordination by them, or to their known sympathies for and support of a union. We believe, for the reasons following, that Belock's primary objection was to their sympathies for and sup- port of a union. First, although Belock testified that Henley, Packer, George Schwartz, and Furnari had been inefficient or inattentive to their du- ties over an extended period before their discharges, he also testified; .. . these four men . . . could have been good men. Nothing wrong with them. They did a clean job as far as I am concerned ; and there isn't a one here could tell you I ever bawled him out.7 Second, just before the discharges Belock used a general comment by Engineer Yorinks to the effect that there was inefficiency and in- subordination in the drafting room as the occasion for selecting Hen- ley, Packer, George Schwartz, Furnari, and another draftsman named Schneider from the 20 or more employees in the drafting room and delivering to them a hot-tempered lecture about their work, their or- ganization, and their possible testimony at a hearing scheduled to begin 3 days later before a Trial Examiner for the Board on the dis- charge of Martin Schwartz. We credit testimony by both Yorinks and Belock that Yorinks did not name any particular employees in his 5 Belock here refers to Martin Schwartz along with Henley, Packer, George Schwartz, and Furnari As already discussed , Martin Schwartz was discharged 4 months earlier and under substantially different circumstances than the other four employees The record fails to show that Belock had any part in effecting Martin Schwartz ' discharge. We therefore disregard this reference to Martin Schwartz. See footnote 5, supra We note that Chief Draftsman Pross, a witness for the respondents, testified that although Henley, Packer, George Schwartz, and Furnari were less efficient than other draftsmen , their discharge "took away" men who were still needed in the drafting room. 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD comment about inefficiency and insubordination in the drafting room.8 We find that Belock selected Henley, Packer, George Schwartz, and Furnari to listen to his speech primarily because he knew that they were the center of organizational efforts at the plant .9 We further find that he selected Schneider because he suspected that Schneider also was involved in union activities. Belock testified, "I knew Hen- ley screwed him [Schneider] up as well as the other men." 10 Third, Belock's entire testimony clearly establishes that he was very concerned about and personally offended by the attempt of the four employees to form a union at the plant without first consulting with him for advice and approval. Thus, he stated at the hearing : I will let a union come into the place as soon as it is organized. They don't have to go behind my back or around me. They could have asked me, "What do you think if we form an organ- ization?" I didn't want any agitation. They had work to do. If the man [referring to Henley] is such a smart operator, why didn't he come to see me? I would talk to him. Maybe I thought the best way for the drafting room to get straightened out was to have the men belong to the Coal Miners' Union." 11 The record shows that Henley, Packer, George Schwartz, and Fur- nari were the only draftsmen discharged by the respondents at this plant between March 1946 and the time of the hearing in August 1946. On the basis of all the foregoing, and the entire record in the case we 8 Yorinks testified at the hearing that the insubordination about which he had reported generally to Belock before the discharges was a statement to him by Packer to the effect that if he did not like the way Packer worked he could get someone else. Packer denied having made such a statement. We credit Packer's denial. 9 There is no substantial evidence that these employees engaged in union activities during working hours 10 The record shows that Henley had unsuccessfully solicitated Schneider to join the Union. Schneider was not discharged. Belock also testified as follows on cross examination : Q (By Board's counsel ) Well, do you have any objections to your employees organizing by themselves without any other union involved? A (By Belock ) Why the hell didn't they tell me they wanted to organize? Q. Why should they tell you? A Why shouldn't they tell me? Who the hell's paying them1 Why do-do I have to report to them what is going on in the place? Let me ask you something Why the hell do I have to tell them what I am going to give them for a bonus's Why the hell do I have to tell them how much sick leave they are getting? Do I have to worry whether they die or live or whether they get a doctor or a nurse? No. Who the hell gives a God-damn what they want? Q. Do you know, Mr. Belock, that under the Federal Act, the National Labor Relations Act. . . . A. Listen, I know the Wagner Act as good as you do. Don't give me that God-damn malarky. I am the guy that wrote the Act. • w a r a n s Q. And you insist that before they form a union they should come and tell you? A I certainly insist that they come and tell me, because they owe it to me, the God-damn bums. REEVES-ELY LABORATORIES, INC. 733 find that the respondents discharged these four employees primarily because of their activities and sympathies on behalf of the Union, thereby violating Section 8 (3) of the National Labor Relations Act 12 4. As set forth in footnote 11, hereof, Vice President Belock asserted at the hearing that he would insist that employees wishing to form a union tell him beforehand of their intentions. Belock also stated from the witness stand that if other employees were to "carry on" as Henley had they would be discharged; that they would "probably join the union on Monday and be out on Tuesday." He declared fur- ther that he intended to make it difficult for Henley to find other employment 13 We infer from the record that employees were present at the hearing and heard Belock make his above statements. However, even if em- ployees were not present, the statements were made under such circum- stances as to insure that the employees would learn of them. Belock's insistence that employees consult with him before organizing was a coercive interference with and a restraint upon their freedom of self- organization guaranteed by the Act. His other statements above con- stituted a warning against union activity by the employees except upon Belock's own illegal terms and, in addition, a threat to exact reprisals for past protected activity. The Trial Examiner acknowledged the coercive character of Belock's statements at the hearing, but declined to make other findings with respect to them, on the ground that the complaint was not amended to include allegations respecting the events at the hearing. We do not believe that the purposes of the Act would best be effectuated by our adoption of this ruling. The complaint, which was issued on August 8, 1946, alleged, inter alia, that the respondent, Reeves-Ely Labora- tories, Inc., violated Section 8 (1) of the Act by warning its employees 12 The complaint also alleged that the above discharges violated Section 8 (4). We deem It unnecessary to pass upon this issue in view of our other findings and the particular facts of the case. We shall dismiss the complaint insofar as it alleges violation of Section 8 (4). 13 Thus, Belock testified on cross-examination as follows : Q. (By Board counsel.) Yesterday you said on direct examination that you would see to it that Henley wouldn't get a job any place else. Did you mean that? A. I certainly did. I am going to drag these God-damn bums through the gutter until I get rid of them. They will have to move out to the desert . They will become rag pickers. This is a personal issue with Garrett and myself. You can exclude the company. When I get through with him he Is going to be sorry that he ever met me. Q. Do you mean to say that you will blacklist him with all the companies? A I don't have to blacklist him in all the companies . He Is going to blacklist himself. That I guarantee you, because the Engineering Societies know all about him. I can tell you that. Engineers are like a bunch of women . He is marked lousy with one engineering company, from one engineering company to another. Q. And you saw to that, did you? A. I didn't see to it, but I am going to see to it that it is so. I swear to it that this man Is going to find it hard to make a living. 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to refrain from union activities and by threatening them with dis- charge or other reprisals if they joined or assisted a union. Belock's statements, which were made at the hearing on August 26 and 27, 1946, come within the scope of the complaint in point of substance. Oppor- tunity for full litigation of all issues raised was afforded the parties. Under these circumstances we do not consider that the slight variance in time between the allegations of the complaint and the proof should constitute an obstacle to finding and remedying a violation of the Act. Nor do we believe that the fact that Belock's statements were made in the course of testimony should, in the instant case, protect them. It is and will remain our purpose to encourage and preserve the fullest possible freedom of testimony at hearings ordered by the Board. How- ever, that purpose will not be served by allowing hearings to become forums for the dissemination of flagrant, deliberate threats such as those indulged in by Belock. We therefore find that by Belock's state- ments the respondents interfered with, restrained, and coerced their employees in violation of Section 8 (1) of the Act. The effect of the unfair labor practices upon commerce The activities of the respondents set forth in Sections 1, 3, and 4, above, occurring in connection with the operations of the respond- ents described in Section I of the Intermediate Report, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burden- ing and obstructing commerce and the free flow of commerce. The remedy Having found that the respondents discharged Henley, Packer, George Schwartz, and Furnari in violation of Section 8 (3) of the Act, we shall, in order to effectuate the purposes of the Act, order the respondents, subject to the conditions as to Henley hereinafter set forth, to offer these employees immediate reinstatement to their former or substantially equivalent position,14 without prejudice to their seniority and other rights and privileges, and to reimburse each of them for any loss of pay he has suffered by reason of the dis- crimination against him by payment to him of a sum of money equal to that which he normally would have earned as wages during the period from the date of his discharge to March 19, 1947, the date of the Intermediate Report herein,, and during the period from the date of this Decision and Order to the date of the respondents' offer 19 In accordance with the Board' s consistent interpretation , the expression "former or substantially equivalent position " is intended to mean "former position " whenever 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. It. B 827. REEVES-ELI LABORATORIES, INC. 735 of reinstatement,15 less his net earnings during such period.',, Rein- statement of Henley will not be required, however, if it is shown to the Regional Director that the War Department of the United States refused to consent to Henley's employment on its secret contracts, nor will back pay be required for Henley for any time during which the respondent had notice of such refusal by that Department." By their action in discriminatorily discharging the four employees named above and, particularly, by Vice President Belock's statements at the hearing, the respondents have demonstrated a clear attitude of opposition to the purposes of the Act, and a determination generally to interfere with the rights guaranteed in Section 7 of the Act. We shall therefore order that the respondents cease and desist from the unfair labor practices in which we have found that they engaged and, in addition, that they cease and desist from in any other manner interfering with, restraining, or coercing their employees in the exer- cise of rights guaranteed them in the Act."' Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. Federation of Architects, Engineers, Chemists and Technicians, Metropolitan Local 231, CIO, is a labor organization within the mean- ing of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Alfred Henley, Morton L. Packer, George Schwartz, and Vincent Furnari, and thereby discouraging membership in Federation of Architects, Engineers, Chemists and Technicians, Metropolitan Local '5 This abatement of back pay for the period between issuance of the Intermediate Report and our Decision and Order follows our practice where, as here, we have reversed a Trial Examiner's finding that allegations of discrimination were lacking in merit. See Matter of Gibson County Elect; to Membership Corp., 74 N L. R. B. 1414, and Matter of Capital City Candy Company, 71 N L R B. 447. 11 By net earnings" is meant earnings less expenses , such as for transportation, room and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere See Matter of Crossett Lumber Co, 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 eai rings See Republic Steel Cot poration v. N L. R. B , 311 U S. 7. 17 It is clear from the record that a substantial part of the respondents ' work was per- formed under secret contracts with the War or Navy Departments. As set forth in the Intermediate Report, on February 5, 1947, the respondent Reeves Instrument Corporation moved to reopen the hearing for the purpose of presenting evidence that Henley was dis- qualified for reinstatement by reason of a refusal by the War Department on November 13, 1946, to consent to his employment on work involving its secret contracts . Such refusal admittedly had no part in Henley 's prior discharge on August 2, 1946. The respondent's motion was denied by the Chief Trial Examiner for the Board on March 13 , 1947. In view of our Order herein, no party had been prejudiced by this ruling of the Chief Trial Examiner and it is hereby affirmed. ]s N. L R B. V. Express Publishing Co., 312 U. S. 426; May Department Stores Co. v. N. L R. B , 326 U S. 376. 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 231, CIO, the respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act, the i espondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 5. The respondent, Reeves-Ely Laboratories, Inc., did not discrimi- nate in regard to the hire or tenure of employment of Martin Schwartz within the meaning of the Act. 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, Reeves-Ely Laboratories, Inc., and Reeves Instrument Corporation, New York City, and their officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Interrogating their employees concerning their union affilia- tions, activities or sympathies; (b) Requiring that their employees inform or consult with them concerning union activities; (c) Threatening their employees with reprisals for engaging in pro- tected union activities; (d) Discouraging membership in Federation of Architects, Engi- neers, Chemists and Technicians, Metropolitan Local 231, CIO, or in any other labor organization of their employees, by discharging any of these employees or by discriminating in any other manner in regard to their hire and tenure of employment, or any term or condition of their employment; (e) 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 joint or assist Federation of Architects, Engineers, Chemists and Technicians, Metropolitan Local 231, CIO, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining, or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer to Morton L. Packer, George Schwartz, and Vincent Furnari, and to Alfred Henley, subject to the condition set forth in REEVES-ELY LABORATORIES, INC. 737 the section above entitled "The remedy," immediate and full reinstate- ment to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges; (b) Reimburse Morton L. Packer, George Schwartz, and Vincent Furnari, and Alfred Henley, subject to the condition set forth in the section above entitled "The remedy," for any loss of pay they have suffered by reason of the respondents' discrimination against them by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages during the period from the date of his discharge to March 19, 1947, the date of the Intermediate Report herein, and during the period from the date of this Decision and Order to the date of the respondents' offer of reinstatement, less his net earnings during such periods; (c) Post throughout their plant at 215 East 91 Street, New York City, copies of the notice attached hereto, marked "Appendix A." 19 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by the respondents' repre- sentative, be posted by the respondents immediately upon receipt there- of 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 material; (d) Notify the Regional Director for the Second Region in writing, within ten (10) days from the date of this Order, what steps the respondents have taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed, insofar as it alleges that the respondent, Reeves-Ely Laboratories, Inc., discharged Martin Schwartz in violation of Section 8 (3) and insofar as it alleges that the respondents violated Section 8 (4) of the Act. MEMBERS HOUSTON and MURDOCK took no part in the consideration of the above Decision and Order. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : 11 In the event that this Order is enforced by decree of a Circuit Court of Appeals, there shall be inserted, before the words : "A Decision and Order," the words "A Decree of the United States Circuit Court of Appeals enforcing." 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 FEDERATION OF ARCHI- TECTS, ENGINEERS, CHEMISTS AND TECHNICIANS, METROPOLITAN LOCAL 231, CIO, or any other labor organization, to bargain col- lectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection. WE WILL offer to the employees nained below immediate and full reinstatement to their former or substantially equivalent posi- tions without prejudice to any seniority or other rights and privi- leges previously enjoyed, and make theni whole for any loss of pay suffered as a result of the discrimination. Morton L. Packer Vincent Furnari George Schwartz Alfred Henley (Henley's reinstatement and back pay to be subject to con- ditions described in the Decision and Order) All our employees are free to become or remain members of the above- named union or any other labor organization. We will not discrim- inate in regard to hire or tenure of employment or any term or condi- tion of employment against any employee because of membership in or activity on behalf of any such labor organization. ------------------------ ( Employer) By ------------------------ (Representative ) (Title) Dated ------------------------ NOIT : Any of the above-named employees presently serving in the armed forces of the United States will be offered full reinstatement upon application in accordance with the Selective Service Act, after discharge from the armed forces. This notice must remain posted for sixty (60) days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT Vincent F. Rotolo, Esq., for the Board. Messws. Cravath, Suwaine & Moore, by Thomas F. Hilbert, Jr., Esq., of New York, N. Y., for the respondents. Mr. Thomas C. Sullivan, of New York, N. Y., for the Intervenor. STATEMENT OF THE CASE Upon a second amended charge duly filed on August 5, 1946, by Martin Schwartz, Alfred Henley, Morton L. Packer, George Schwartz, and Vincent J+'urnari, the National Labor Relations Board, herein called the Board, by its actirg,Regional REEVES-ELY LABORATORIES, INC. 739 Director for the Second Region (New York, New York), issued its amended complaint on August 8, 1946; against Reeves-Ely Laboratories, Inc, and Reeves Instrument Corporation, herein called the respondents, alleging that the re- spondents have engaged in and are engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (3), and (4) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act Copies of the complaint, the second amended charge, and a notice of hearing were duly served upon the respondents, Martin Schwartz, Alfred Henley, Morton L. Packer, George Schwartz, Vincent Furnari, and Federation of Architects, Engineers, Chemists and Technicians, Local 231, CIO, herein called the Union. With respect to the unfair labor practices the amended complaint alleged: (1) the respondent Reeves-Ely Laboratories, Inc. did on or about March 1, 1946, vilify, disparage and express disapproval of unions ; interrogate the employees concerning their union affiliations; urge, persuade and warn its employees to refrain from assisting, becoming members of or remaining members of a union; threaten its employees with discharge or other reprisals if they joined or assisted a union ; keep under observation and surveillance the concerted activities of its employees for the purpose of self-organization or improvement on working con- ditions ; (2) that on or about March 6, 1946, respondent Reeves-Ely Laboratories, Inc. discharged Martin Schwartz at its Reeves Sound Laboratories Division and has since refused to reinstate him for the reason that he had engaged in union or other concerted activities within the meaning of the Act; (3) that on or about August 2, 1946, the respondents discharged and have since refused to reinstate Alfred Henley, Morton L. Packer, George Schwartz, and Vincent Furnari for the reason that they had engaged in union or other concerted activities within the meaning of the Act, and for the further reason that they gave testimony in a matter pending before the Board involving the respondents in contravention of Section S (4) of the Act; and (4) that by the above acts the respondents inter- fered with, restrained and coerced their employees within the meaning of Sec- tion 8 (1) of the Act. On or about August 16, 1946, the respondents filed a joint answer, admitting, in effect, the allegations in respect to their business operations, but denying that they engaged in the unfair labor practices as alleged. Pursuant to notice, a hearing was held from August 19 to August 27, 1946, at New York, New York, before Henry J. Kent, the undersigned Trial Exam- iner duly designated by the Chief Trial Examiner. The Board and the respond- ents were represented by counsel and the Union by a lay representative.2 All parties participated in the hearing and were afforded opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. Oral argument before the undersigned at the close of the hearing, was waived. The respondents have filed a brief with the undersigned. On February 5, 1947, counsel for the respondents moved to reopen the hearing for the purpose of presenting additional evidence in the case to show that the Secretary of War for the United States will not consent to the employment of t The Board issued the original complaint hei ein on June 11, 1946 , following the filing of an individual charge and amended charge by Martin Schwartz on March 12 and June 7, 1946 Notices of hearing on the said oirgmal complaint were served on the parties on or about June 11, 1946 , for a heanng to be held on July 15, 1946. No heating was ever held on the original complaint At the opening of the heanng the Federation of Arch tects, Engineers, Chemists and Technicians , Metropolitan Local 231 , CIO, appeared by Thomas Sullivan, one of its inter- national representatives , and moved for leave to intervene , on the grounds that the five above-named persons who filed the second amended charge were members of the orsani- za ion The motion was granted 781902-48-vol . 76--48 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Alfred Henley on work involving secret or top secret War Department contracts, and that by reason of the foregoing and because of the nature and scope of the operations in the respondents' plant, they could not reinstate Henley to his former employment at the plant should the Board determine that his discharge on August 2, 1946, was discriminatory. On February 13, 1947, counsel for the Board filed objections to the granting of the said motion. Thereafter, on March 13, 1947, the said motion was denied by the Chief Trial Examiner for the Board. 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 I. THE BUSINESS OF THE RESPONDENTS The situs of the alleged unfair labor practices is a certain manufacturing plant located at 215 East 91st Street, New York City, New York. Prior to July 1946, the operations at the plant were conducted by the Reeves Sound Laboratories Division-Apparatus Department of the Reeves-Ely Laboratories, Inc. Since July 1946, the plant has been operated by the Reeves Instrument Corporation, a New York corporation formed and organized in 1946 as a wholly owned subsidiary of Reeves-Ely Laboratories, Inc, also a New York corporation, organized in 1943, which maintains its principal offices at 25 West 43rd Street, New York City. The plant is engaged in the development and production of precision instruments and electronic equipment. During the calendar year of 1945, raw materials consisting of metals and metal products valued at in excess of $500,000 were purchased and transported to the plant, of which approximately 33 percent was transported to the said plant from various points located outside the State of New York. During the same period products valued at in excess of $1,000,000 were manufactured at the plant, approximately 75 percent of which was transported to points outside the State of New York. The respondents concede and the undersigned finds that the respondents are engaged in commerce within the meaning of the Act. U. THE ORGANIZATION INVOLVED Federation of Architects, Engineers, Chemists and Technicians, Metropolitan Local 231, an affiliate of United Office and Professional Workers of America, C. I. 0., is a labor organization admitting to membership employees of the respondents. III. THE ALLEGED UNFAIR LABOR PRACTICES A. General factual background Insofar as the record shows there is no background of unfair labor practices by the respondents prior to the period covered by the complaint. The plant herein involved was established in its present location in or about February 1945, as the Reeves Sound Laboratories Division of Reeves-Ely Laboratories, Inc., for the purpose of engaging in laboratory development work and design of fire control equipment for the United States Armed Forces. Shortly thereafter the scope of operations of the plant was enlarged and production departments were set up to manufacture as well as design precision instruments and other prod- ucts both for the United States Government and for civilian customers. Since early in July 1946, the plant has been operated by the Reeves Instrument Cor- REEVES-ELY LABORATORIES, INC. 741 poration, a wholly owned subsidiary of Reeves-Ely Laboratories, Inc., and suc- cessor to the former Reeves Sound Laboratories Division of the Reeves-Ely respondent. From an initial staff of approximately 10 employees at the plant which consisted of about 8 engineers and 2 mechanical draftsmen, its pay roll has gradually increased until presently it has a pay roll of about 600 persons. Harry Belock is the chief engineer and vice president in charge of production of the Reeves Instrument Corporation and Edward Garrett, the assistant chief engineer and plant supervisor next in line to Belock. Because of the rapid increase in business, the respondent soon found it necessary to increase its staff of draftsmen. Due to the induction into the Armed Forces of many per- sons skilled in this work and the great demand for such employees in war in- dustries, few of them were available during the year of 1945 and comparatively high salaries were demanded by those available.' Under War Stabilization Board provisions, the salaries of draftsmen were fixed at about $3,000 a year, but because such employees were practically unobtainable at this figure, the respondent was obliged to hire persons of various degrees of skill and training as draftsmen at $4,400 per year, and to classify them on its pay' roll as assistant project engineers in order to comply with the governmental wage regulations. Among those employees hired for drafting work during 1945 were Martin Schwartz, Vincent Furnari, Morton Packer, George Schwartz, and Alfred Henley.' The two Schwartzes were completing engineering courses by taking college work at night after work, and Furnari had recently been discharged from the Army for physical disability. Henley was approximately 35 years of age. He had received Bachelor of Arts and Master of Arts degrees from Columbia University. He had a number of years prior experience as an optical engineer and during the 2 years prior to entering upon his employment with the respondent had been working as a draftsman at the Columbia Machine Works at a salary of $100 per week. Also included among about 20 employees in this category were 5 other drafting-room employees who had been hired somewhat earlier than Martin Schwartz, Henley, Packer, Furnari, and George Schwartz, the com- plainants herein. These employees were Harry Silvers, John Maloney, Mary Jane Carter, Eugene De Rosa, and George Redholtz. According to the credible testimony of George Pross, the respondent's chief draftsman, either Belock or Garrett came to him shortly after V-J day, to wit, August 15, 1945, and told him that in view of the prospective improvement in the manpower situation the respondent had decided to get rid of draftsmen who were not carrying their share of the work load and bring some new blood into the organization. In accordance with these instructions, Pross recommended the discharge of Silvers, Maloney, Carter, De Rosa, and Redholtz and they were terminated. Pross also credibly testified that after Martin Schwartz, who was discharged on March 7, 1946, and Henley, Packer, Furnari, and George Schwartz, who were discharged on August 2, 1946, had been given further probationary trials of 3 to 5 months, he had then reached the conclusion that he would be glad to dispense with their services when able to replace them by more competent employees.4 8 Furnari was hired on May 5, 1945, at $4,400 per year ; Martin Schwartz on June 5, 1945, at $4,000 per year; Morton Packer on June 12, 1945, at $4,400 per year; George Schwartz on August 6, 1945, at $4,500 per year; and Alfred Henley on October 29, 1945, at $4,800 per year. 4In addition, Pross testified that except in respect to Henley who was hired in October 1945, he had been unable to secure additional draftsmen to replace the five persons dis- charged after V-J Day until sometime in January 1946, when he hired two draftsmen who had been formerly employed at the Bell Telephone Laboratory. Pross testified that these two former "Bell" employees were much more competent than any of the five employees named in the complaint. 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B Alleged interference, restraint and coercion 1. The union activities at the plant Prior to the time Henley commenced his employment at the plant on October 2d, 1945, there apparently had been no talk regarding organization among the draftsmen. Jules Boyer and Wilbur Fischer were the first two draftsmen hired by the respondent Reeves-Ely. During part of November 1915, and up to some time early in January 1946, Bo3er and Fischer served jointly as acting chief draftsmen during the absence of Chief Draftsman George Press, who had been temporarily transferred from the drafting room to organize and set up another department at the plant Previous to commencing his employment with the respondent. Boyer had worked as a draftsman at the Columbia Machine Works in Brooklyn, New York. Ifenley and George Schwartz had also worked as draftsmen with Boyer at the Columbia plant and all three of them were members of the United Electrical, Radio and Machine Workers, C. I. 0, at Columbia, Henley being a shop steward at that plant. Henley testified and Boyer denied that on the day Henley started to work at the respondents' plant, Boyer warned him not to organize a union, because the respondent was opposed to them,' and that he, Boyer, had assured Pross before Henley was hired that Henley would not try to organize the plant. Although Boyer did not categorically deny the above testimony of Henley, he, in effect, denied it for he credibly testified that he at no time had reason to believe that the respondent was opposed to unions and had never warned any employee to refrain from engaging in union activities, or knew until shortly prior to the hearing that some of the employees were trying to organize the plant.' In view of Boyer's knowledge of the past union activities of Henley at the Columbia plant, the undersigned believes that Boyer would not have recom- mended Henley to the respondent for employment if he thought the respondent was opposed to unions. In any event, and basing his conclusions upon his observation of the witnesses, and all of the evidence in the record,' he finds Boyer's testimony to be the more credible and he accepts his denial that he warned any employee to refrain from union activities to be credible and true. F Henley testified, and his testimony was amply supported by that given by several of the respondent's witnesses, that most of the respondent's employees, including many of the foremen, had been members of various labor organizations before accepting jobs at the plant George Schwartz testified that during an interview with Chief Engineer Belock concerning his piospective employment as a draftsman, at which Boyer was present, he told Boyer that the Union at the Columbia plant was going strong, that Boyer then said, "We do not need a Union here," and that Belock merely laughed "Employee George, Schwartz also testified that in February 1946, Bover asked him, "W'hat are you trying to do to me? Do you want to start a union here? You will get us all fired," that when Schwartz asked Boyer what he meant, Boyer then said , "Henley and Furnaii were agitating for a union" and warned Schwartz not to tell Henley what Boyer had said while Boyer did not categorically deny the above testimony given by Schwartz, he did, in effect, deny it for Boyer testified that he had never engaged in a conversation with any employee regarding union organization at the respondent's plant, that be did not know any of them were attempting to organize and had never told anyone that organization was going on In view of the fact that Schwartz admitted that lie had never solicited any fellow employee to sign a union card it is a fair inference that his activities were so limited that Boyer would hardly have been cognizant of them. T It is noted that no formal organizational meetings among the employees were ever called by the Union and that no union leaflets were passed out until a few days before this hearing and after the discharges, further discussed below, and alleged in the complaint to be discriminatory, had been effected. REEVES-ELY LABORATORIES, INC. 743 The record shows that soon after Henley began his employment at the plant, lie started to discuss union matters in general with some of his fellow employees. Evidently as a result of some of these discussions lie concluded that Packer, Furnari, Martin Schwartz, and George Schwartz were favorable toward the formation of a union at the plant, because he requested them to accompany him to the Union's office on Beekman Street, New York, after work one night in the early part of January 1946. On this occasion the five employees met with Thomas Sullivan, an international representative of the Union. Henley told ,Sullivan that they wanted to organize the plant and asked for his advice respecting it. Sullivan suggested that they act as an organizing committee to solicit fellow employees to join the Union and then handed Henley about 5 or 10 .application-for-membership cards. Subsequently on January 24, 1946, when the above group were eating lunch together at a restaurant near the plant, Henley handed the other men application cards to sign. They all signed them on this clay and at the time Packer and both of the Schwartzes also gave Henley $3 to pay their initiation fees. Furnari, being a war veteran, was not required to pay an initiation fee Thei eafter, on February 1, 1946, Henley took the cards with his own card which he had signed on January 2, 1946, and the money to the Union office and tendered the cards to Sullivan Sullivan told him to hand the cards to a clerk in the office. Henley did so and also gave her $12 for initiation fees and received receipts dated February 1, 1946, for intiation fees paid by Henley, Packer, and the two Schwartzes.e Thereafter, according to the testimony of Packer, Furnari, and both of the Schwartzes, they did not engage in any open organizational activities to any substantial degree, or solicit fellow employees to sign application cards, but left these tasks to Henley. The record also shows that no formal organizational meetings were ever held by the Union for the respondent's employees and that no union leaflets were passed out until August 12, 1946, or about 1 week after the last of the discharges discussed below were effected on August 2, 1946. Henley also testified that following the discharge of Martin Schwartz on March 7, 1946, Henley's own activities were carried on more secretively. Henley, however, claims that previously he was very active in soliciting em- ployees to sign cards and that he had succeeded in obtaining the signatures of about 75 employees on such cards, but he refused to state any of their names.B Henley also claimed that he solicited and handed cards to Henry Dull, Nathan Haberman, and John McCann, all fellow draftsmen who refused to join the Union, during January or February 1946. Dull, Haberman, and McCann all denied that Henley had solicited them to join the Union and further testified that Henley only discussed unions generally in casual conversations with them, and that he had never mentioned the Union by name to them. Basing his conclusion upon his observation of the witnesses and all of the evidence in the record, the under- signed accepts the denials of Dull, Haberman, and McCann that they were solicited by Henley to join it as credible. There is, however, other evidence in the record to support Henley's claim that he did in fact solicit employees other than Packer, Furnari, and the two Schwartzes to join the Union, for Draftsman Carl Schneider, a witness called by the respondent, credibly testified that during June and July 1946, he occasionally went to lunch with Henley, and other employees whom he did not name, that from conversations which were held on some of these s These five cards were offered and received in evidence. On the other hand, Union Representative Sullivan testified that he was without knowl- edge that Henley ever delivered any additional signed cards to the Union other than those of the five employees allegedly discriminatorily discharged. 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD occasions Schneider understood that efforts were being made to organize a union at the plant because he refused to sign a union application card handed to him by Henley. Schneider further credibly testified that he had never discussed the matter with any of the respondent's supervisory employees, prior to the discharge of Henley. The respondent contends that apparent alterations appearing on the card signed by Martin Schwartz, discrepancies respecting the time stated thereon on other cards signed by Packer and George Schwartz concerning the tenure of the signatories in respect to the period they worked at the plant, and the lack of more substantial evidence regarding union activities at the plant during 1946, strongly indicates that the cards were not signed on the dates appearing thereon, but that they were falsely dated back to January 24, 1946, in order to support the claims of the discharged employees in respect to their claimed union activities prior to the dates of their respective discharges This contention has not been sustained. In addition to the testimony of Henley, Packer, Furnari, George and Martin Schwartz in regard to the time when the cards were signed most of which, of course, could not be refuted, there is also testimony by Sullivan, here- inabove mentioned, which generally corroborates their testimony. Sullivan im- pressed the undersigned as a credible and truthful witness. He credibly testified that Henley tendered him the five cards, received in evidence, on some date in January 1946, and further credibly testified that the Union's financial records show that initiation fees were received from four of the men on February 1, 1946. The record as a whole, however, shows that the concerted or union activi- ties were carried on so quietly and unobtrusively that it is entirely conceivable to the undersigned that the respondents were not aware of them, as was contended by the respondents. 2. The March 1, 1946, incident Paragraph 6 of the complaint alleges in effect : Respondent, Reeves-Ely Laboratories, Inc, on or about March 1. 1946, vilified, disparaged, and expressed disapproval of unions, interrogated its employees con- cerning their union affiliations; urged, persuaded. and warned its employees to refrain from assisting, becoming members of, or remaining members of a union ; threatened its employees with discharge or other reprisals if they joined or assisted a union; kept under observation and surveillance the concerted activities of its employees for the purpose of self-organization or improvement of working conditions. The record shows that about 1 week before Maich 1, 1946, Henley went to Chief Draftsman Pross, his immediate supervisor, and told Pross that he had heard a rumor that the respondent suspected Henley of attempting to organize the plant. Henley vehemently denied that there was any truth in such rumor and said that he told Pross, "I resented the slur on my being [called] a union organ- izer," that he then told Pross that the employees were all satisfied with their wages and did not want or need a union, and that any unrest in the drafting room was due to the officious conduct of Wilbur Fischer, who was improperly going over Pross' head and assuming authority to supervise and reprimand the employees in the drafting room. Pross, on replying to Henley, credibly testified that he told Henley the latter was not suspected of engaging in organizational activities, and reported Henley's conversation with him to Garrett 10 According 10 Pross also credibly denied that he told Henley on this occasion that another drafts- man was under suspicion for engaging in such activities , as l'ross was claimed to have done by Henley. REEVES-ELY LABORATORIES, INC. 745 to Garrett, shortly after Pross had reported the Henley incident, Charles Sobel, an engineer, informed Garrett that Draftsman McCann had gone to lunch on several occasions with Henley and other drafting room employees, and told Sobel that during lunch the men had been discussing unions. Garrett further testified that he then decided to investigate the reasons for the apparent unrest in the drafting room and that Draftsmen Jules Boyer, Maurice Peterson, Packer, Mc- Cann, and Martin Schwartz were all called in a group to Personnel Manager Israel's office on the afternoon of March 1, 1946, to investigate the matter. Accord- ing to Packer, Garrett asked him: "What is this I hear about you guys and Henley talking about unions?"; that Packer replied, none of the men were advocating the organization of a union , but had started talking about unions in general because the General Motors and Western Electric strikes were then current and this led to discussions regarding unions among the employees. McCann testified that Garrett told him that he had heard a rumor regarding the formation of a union, that he asked McCann if anyone had spoken to him about unions, that McCann replied there had been general talk about unions, and that when Garrett then asked him if Henley had solicited McCann to join one, the latter replied, "No." According to Peterson, Garrett, on this occasion, stated, vaster alia, that he was trying to learn if the men had any grievances about conditions in the drafting room and if such grievances led them to believe that a union was needed to remedy them. Packer further testified that he then told Garrett that many of the men were complaining about Fisher's high-handed conduct in assuming to order them around in the drafting room and asserted that this was the sole cause for their grievances. Garrett credibly claimed, without contradiction, that he then told the group that if Fischer's conduct was the only thing bothering them he would take care of Fischer and denied that he threatened any of the employees with reprisals for engaging in organizational activities. Israel claimed that Henley had not been asked to come down to the meeting in Israel's office because he was lame and there was no passenger elevator in the plant building, and they (lid not want to ask Henley to walk down from the third floor to the first floor and back, but decided to talk with him concerning the dissatisfaction in the drafting room after talking to the others.11 A few minutes after the meeting in Israel's office, Henley was called to Belock's office. According to Henley several persons, whom he did not identify, were in Belock's office when he arrived there, that Garrett then asked him to go to the model shop, that when they arrived there Garrett said, "I understand you went to - you told George Pross something about unions recently." "What seems to be the trouble [in the drafting room] what is going on?" Henley testified that he repeated his previous conversation with Pross presumably again insisting that he "resented" being called a union organizer and again blaming Fischer for the dissatisfaction among the draftsmen, that Garrett expressed agreement with his stated objections to Fischer's conduct and said the respondent would deal with Fischer ; that Garrett then remarked that the respondent was paying such high wages, he could not understand why there was any necessity of agitating for a union; and that Henley then told Garrett he agreed with Garrett. While Henley and Garrett were still 11 On the other hand, Belock credibly testified that he was responsible for calling Henley in to talk with him regarding the unrest in the drafting room. Belock testified that, at or about this time, "Bill" Parkhurst, one of the respondent's salesmen , told Belock that Henley and Schwartz were agitators , inferentially meaning men with subversive leanings, because Belock insisted that Parkhurst was not referring to union activities , and that Belock told Parkhurst to "leave them alone for a while" because he did not believe they would do any- thing to injure the respondent's business. 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conversing, Belock and Israel came by and joined them According to Henley, Belock, in substance , in an outburst interspei sed with obscene words" then said. "Why do they want to start a union, when they came here they (lid not know a sky light from a gasket; they are getting good money and now want to start a -union ; if they do I will fire all of them including Fischer " Gariett, Israel, and Belock denied that Belock made any threat to penalize employees for engaging in organizational activities at the time, but in effect , testified that Belock merely agreed with Garrett that Fischer should be disciplined for upsetting the morale in the drafting room. The undersigned having previously found that Henley is not a trustworthy witness leads him to accept and credit the denial of Garrett, Israel, and Belock that any anti-union threats to discharge or discipline employees for union activities were made on this occasion by Belock. On or about March 3 or 4, 1946, according to Packer's testimony , he was getting some material out of a file in the office of Chief Draftsman Pross, that Garrett carne "stamping" into the room and said to Pross, "Tell me the names of the agi- tators, and I will fire the whole [obscene word] lot of them" ; and that Pross then replied, "What are you asking me for? I don't know, I didn't ask them , and they wouldn 't tell me if I did." Garrett and Pross both denied that any such incident ever happened . Basing his conclusion upon his observation of the witnesses, and a consideration of the entire record , the undersigned accepts and finds the denials of Garrett and Pross to be credible and true. Pursuant to Garrett's statement to the employees on March 1 , 1946, that the respondent would curl) Fischer 's objectionable conduct, Fischer was reprimanded, his drafting board was moved about 1 week later to a position in the drafting room from which he could not freely observe his fellow workmen , and a desk that had previously been assigned to Fischer was taken from him A consideration of the foregoing facts together with all of the evidence in the records fails to convince the undersigned that the allegations set forth in para- graph 6 of the complaint have been sustained by the proof . Theie is no substan- tial and credible evidence in the record tending to show that the respondent vilified or disparaged unions , that it threatened employees with discharge or other re- prisals if they joined or assisted unions , or that it engaged in surveillance of con- certed activities among its employees , as alleged. It is true that by interrogating McCann on or about March 1, respecting union activities among the drafting room employees , Garrett overstepped an employer 's right while endeavoring to ascertain the cause of dissatisfaction among its employees concerning their work- ing conditions . Customarily , such interrogation by an employer to his employees constitutes a violation of the Act per .se . However, a fair inference is deemed war- ranted that Garrett's investigation concerning the conditions in the drafting room had been instigated and induced by the voluntary and vehement denial of Henley to Pross that Henley was attempting to organize the employees , that he "resented" being called a union organizer, and his further assertion to Pross that the sole cause for dissatisfaction among the employees were the complaints by certain draftsmen concerning the objectional conduct of Fischer in the drafting room. Obviously, Garrett accepted McCann 's denial that Henley had ever solicited McCann to joint a union and concluded that union activities were not the cause of the unrest, for the investigation resulted in disciplinary action being taken only against Fischer, who certainly was not suspected of organizational activities. 12 The tianscript shows that both Henley and Belock were addicted to the use of obscene and profane language, too much of which appears in the reporter 's transcript and which should not be given further circulation REEVES-ELY LABORATORIES, INC. 747 In view of the fact that the record fails to show any anti-union background prior to March 1, 1946, although Henley claims to have been exceptionally active in respect to organizing for the Union for over 2 months prior thereto, a suspi- cion, at least, is aroused that Henley in making the statements that he did to Pross may well have been seeking to inveigle the respondent into violating the Act. Certainly, after the respondent was informed by Henley of the dissatisfaction existing among some of its employees in the drafting room, it was free to investi- gate the matter and attempt to remedy the situation thus complained of. It apparently in good faith tried to do so by disciplining Fischer, the most competent draftsman on its pay roll insofar as the quality of his work was concerned. It was likewise privileged to try and effect an improvement in working conditions to overcome complaints by employees even if it suspected that some of them were trying to organize the plant, and to attempt to persuade its employees that they did not need a labor organization in order to get fair treatment, so long as it did not coercively attempt to thwart self-organization.13 On all of the foregoing and the entire record, the undersigned concludes and finds that the allegations in said paragraph 6 of the complaint have not been sus- tained by the proof. Accordingly he will recommend that the allegations be dismissed. C. The discharges The amended complaint alleges that the respondents discharged Martin Schwartz on March 6, 1946, and discharged Alfred Henley, Morton Packer, George Schwartz, and Vincent Furnari on August 2, 1946, for the reason that they engaged in union or other concerted activities for the purpose of collective bargaining and other mutual aid and protection, and further, in respect to Henley and Packer for the additional reason that they gave information and testimony under the Act in a pending matter before the Board, involving the respondents. The respondents deny that any of the said employees were unlawfully discharged within the meaning of the Act and contend that they were discharged for incompetency, loafing on the job, or insubordination. 1 Martin Schwartz As noted above Martin Schwartz was hired by the respondent Reeves-Ely on June 5, 1945, as an assistant project engineer at $4,400 per year and was em- ployed in the respondent's drafting room as a draftsman, until lie was discharged on March 7, 1946.14 In that capacity he worked during the last 3 months of his employment in collaboration with and under the quasi direction of employee Dickinson, one of the respondent's engineers, but at all times his immediate super- visor was Chief Draftsman Pross. As noted above, Henley accompanied by Schwartz, Packer, Furnari, and George Schwartz attended a meeting in January 1946, previously arranged for by Henley, with Union Representative Sullivan at the Union's office in New York City regard- ing the proposed organization of the employees at the plant. Thereafter, Schwartz signed a union application card for Henley on January 24, 1946, while eating lunch at a restaurant on that day with Henley, Packer, Furnari, and George Schwartz. He admitted that, thereafter, he did not pass out union cards to any 13 See Thomas v Collins, 323 U S 516. 14 As appears above Schwartz was not a graduate engineer, and the title assistant project engineer was one commonly given to mechanical draftsmen at the plant in order to permit the respondent to pay draftsmen high salaries , under Wage Stabilization Board regulations. 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fellow employees or solicit any of them to join the Union. As found above, the Union conducted no organizational meetings and passed out no leaflets to respond- ent's employees until about August 12, 1946. Schwartz claimed that he had never been criticized regarding his work, but admitted that on one occasion Fischer had reprimanded him for continuing to play chess for several minutes after the lunch period was over." On the other hand, Chief Draftsman Pross, who the undersigned deems to be a trustworthy and credible witness, testified that Schwartz frequently spent time doing outside school work when he should have been engaged on respondent's work, that because of his inexperience Pross did not consider his work to have been satisfactory, and that the last job Schwartz worked on had to be done over by Gouzolis, another draftsman who took it over after Schwartz was discharged. Pross further credibly testified that if lie had been ordered to reduce his force by five men since January 1946, as he had been in August 1945, Schwartz, with the other four men named in the complaint, would have been the most appropriate ones to drop if the lay-offs were based on comparative efficiency. It was customary at the plant to pay the engineers on Thursdays by check, while the draftsmen, and substantially all other employees, were paid by cash on Fridays On March 6, 1946, according to Garrett's credible testimony which was not substantially contradicted : Schwartz went to Garrett's office and requested that he be paid by check, on Thursdays, rather than by cash on Fridays, as he considered himself to be an engineer and thought he should be so classified; that Garrett then suggested he speak to Personnel Manager Israel regarding his classification ; that Schwartz then remarked in substance, "Pross sends me to you and you tell me to go to Israel, what am I getting here, a run around?"; that Garrett then tried to assure him that he was not; that Schwartz then requested a salary increase ; that Garrett told him Pross would have to first approve it, and then told him to go back on his job and that Garrett would speak to Pross re- garding an increase. On the following morning Schwartz had a cold and called up Pross to notify him that he would not be in until the next day. On the morning of March 7, Garrett went to Pross' office to take up Schwartz's previous request for a wage increase with Pross. Dickinson, the engineer in charge of the job Schwartz was currently working on, was present there and when Gar- rett asked Pross if he thought Schwartz was entitled to a salary increase, Dick- inson interposed and exclaimed, "More money" No, sir He isn't worth a [G-D] thing." Garrett then asked Pross if lie could get along without Schwartz and after receiving an affirmative answer and being told by Pross that Schwartz's wife had called up to report that he was ill and was taking the day off, Garrett said he then decided to discharge Schwartz. Shortly thereafter, on that same day, Garrett requested Personnel Manager Israel to send Schwartz a telegram notifying Schwartz that lie was discharged. A consideration of the foregoing facts has failed to convince the undersigned that Martin Schwartz was discharged because of union or other concerted activi- ties protected by the Act. Garrett, who discharged him, denies that the respond- ent had any knowledge of such activities prior to the discharge. In view of the limited nature of the activities participated in by Schwartz and the lack of the usual indicia tending to show that organization was going on, such as the holding of organizational meetings and passing out of union literature at the plant, Gar- rett's denial regarding knowledge of such activities by Schwartz would seem 15 The record fails to show whether or not this was during the period that Fischer was an acting supervisor over the draftsmen as hereinabove set forth. REEVES-ELY LABORATORIES, INC. 749 entirely credible. It is true that Garrett's claim that he considered Schwartz's conduct on -larch 6, personally offensive, standing alone, would seem slight grounds for discharging Schwartz, but when it is considered in conjunction with Engineer Dickinson's statement that Schwartz was incompetent, which was made to Garrett just prior to the discharge, the explanation of Garrett regarding the cause of discharge appears credible and is accepted as true by the undersigned. On all of the foregoing and the entire record, the undersigned concludes and finds that the allegations of the complaint in respect to alleged discrimination regarding the hire and tenure of Martin Schwartz have not been sustained by the proof. Accordingly, he will recommend that they be dismissed. 2. The discharges of Henley, Furnari, Packer, and George Schwartz on August 2, 1946 As noted above Henley was hired on October 29, 1945, at $4,800 a year, Furnari on May 21, 1945, at $4,400, Packer on June 15, 1945, at $4,400 and George Schwartz on August 6, 1945, at $4,500. All were employed as draftsmen until they were {lischarged on August 2, 1946. Henley was originally hired for work as an optical engineer because the respondent, at the time Henley began his employment, ex- pected to use him on prospective work for the United States Navy requiring knowledge of optical engineering, a type of work in which Henley had previous experience. Tentative orders on hand for such equipment were later canceled, however, and the respondent retained Henley for work as draftsman. On April 1, 1945, at a time when many of the drafting room employees were given salary increases, Packer and George Schwartz each received one, Packer receiving an increase of $200 and Schwartz one of $100 a year. Chief Draftsman Pross credibly testified that at the time he opposed giving an increase to Packer for the reason that he believed Packer was not turning out enough work to de- serve it, but said he was not consulted regarding the raise given to Schwartz, and said that Belock in answer to the objection voiced by Pross regarding Packer, stated that he hoped a pay increase would induce Packer to take more interest in his work." Although the above-named four employees claimed that they had never been reprimanded or warned regarding their work or conduct, the record shows otherwise. Press, who appeared to be a reserved, even tempered and easy going individual, credibly testified that in his opinion none of them were efficient draftsmen, that all of them had been hired at a time when it was impossible to obtain better trained men for the work, that Furnari and Packer despite frequent reprimands from him would not remain at their boards, but would - wander about the plant visiting with fellow employees," that lie had to "push" George Schwartz at all times in order to get any work out of him; that Henley, although a good draftsman, was one of the slowest men in the drafting room; and that prior to the hearing he had no knowledge that any of the draftsmen were attempting to organize a union and was never instructed by the respond- ent to watch for and report such activities or to penalize any employee because of them. Certainly, if the Board's contention that the respondent was anti- union has merit, it could hardly have been aware of organizational activities "The record shows that Packer had graduated in engineering at New York University a short time before commencing his employment , and that Garrett who had received his degree from the same institution had taken a friendly interest in advancing Packer. "Garrett also credibly testified that he had frequently reprimanded Packer and Fuinarl for neglecting their work and Belock testified that he had previously told Pross to warn Furnari to stay on his job in the drafting room 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by Packer and George Schwartz before April 1, 1946, or it would not have granted them pay increases at that time. Of course, it is likewise true that if they were as inefficient as now claimed, it is also unlikely that Packer and Schwartz would have been given raises at that time, unless for the reason stated by Belock to Pross, at the time, that he hoped a raise might induce Packer to turn out more work. As previously noted, a charge was filed by Martin Schwartz on March 12, 1946, and an amended charge on June 7, 1946, alleging that his discharge by the respondent on March 7 was discriminatory. Thereafter, on June 11, 1946, the Board issued its complaint against the respondent, Reeves-Ely Laboratories, Inc 18 The original hearing date was set as of July 15, 1946, but thereafter the hearing was continued to August 5, 1946.19 Witness subpoenas were served by mail on employees Maurice Peterson, Jules Boyer, John McCann, Henley, and Packer, by delivering them at their homes when they were at work in the plant on August 1, 1946, requiring them to appear to testify as witnesses for the Board on August 5, 1946, at the hearing on the Martin Schwaitz case. On the night of August 1, 1946, Alexander Yormk, one of the respondent's engineers, was riding home in an automobile with Chief Engineer Belock and Garrett. According to the testimony of Garrett, the following conversation be- tween the three men took place. A On the way home, Al Yorink-Al Yorink was riding home with us, and he said to Harry and I-he lives on the way home, and we drop him off occasionally-Well, he said, "What are we going to do about the drafting room?" I said, "What do you mean?" He said, "Well, I am not getting the work on the jobs, and I have Furnari and Packer working down there for me, and they don't do a damn thing Packer insists upon working all over the place, and he only worries about his car ' He said, "What am I going to clo? You are pushing me and I have got to get the work out. What am I going to do with them'?" I said. "Well, Al"- and Yorink also told me that he had told Packer to do something or he had complained to Packer about something and Packer said to him, "If you don't like the way I am doing this, get yourself somebody else " That is what Mr. Packer told Mr. Yorink. Well, so Harry and I were naturally very mad about this I said, "Let's get rid of those guys clown there. Let us kick them out of there, not only Packer and Furnari, but all the other bums Let us get rid of them all." I said, "Let's get them all together and clean the whole [G-D] joint out once and for all." So we decided then to clean the joint out that way Q. Just a minute now. At that time, when you were talking to theta, did you know that any of the employees had been subpoenaed', A. Nobody ever told me they were subpoenaed. Q. Did you ever know that anybody had gone down to talk to the Board about the case? A No, nobody ever told me he was subpoenaed. or who was subpoenaed in the drafting room. Q. Is it true that you didn't know until August 2nd that anybody had been subpoenaed? 38 Matter of Reeves-Ely Laboratories, Inc (Reeves Sound Laboratories Division) and Martin TV. Schwartz, Case No 2-C-6208. 19 Subsequently an amended charge was filed on August 5, 1946, by Martin Schwartz, Henley, Packer , Furnari , and George Schwartz and the amended complaint was issued in the instant case on August 8, 1946. REEVES-ELY LABORATORIES, INC. 751 A I didn't know who had been subpoenaed. That was August 2nd, the day they were laid off? Q. Yes A No. I didn't know who was subpoenaed until I heard him read the list the morning of the trial. [August 19, 1946] Q What happened on August 2nd? A On August 2nd we came in in the morning and we got hold of George Pross, and I told him what was going to happen. George had come in that morning to work on some new splicer to be introduced to the men, which we were going to manufacture. He had been on his vacation at this time, but he came back .21 Garrett further credibly testified that before any further steps were taken to discipline or reprimand any of the employees, he interrogated Pross and Sobel, an engineer who also had contacts with the draftsmen, similar to those of Yorink's, concerning the conduct and efficiency of the men in the drafting room, and that both agreed that Yorink's complaint was justified. Pross credibly testified that had he been instructed to reduce his force of draftsmen by four men at the time he would have selected Henley, Packer, Furnari, and Schwartz, because be considered them the least efficient men in the department. Although the record does not conclusively show that Pross gave Garrett this information on this morning it would seem to be a fair inference that lie did so, because Garrett told him to bring those four employees to an office generally used by the plant engi- neers, where Belock intended to speak to them Pross did so and also brought Draftsman Schneider along with them 21 In the presence of Garrett, Pross, Schneider, and Personnel Manager Israel, Belock, in a hot tempered speech, in substance : accused Henley, Packer, Furnari, and Schwartz of loafing on the job; accused Henley of being a communist ; told them he knew some of them had received witness subpoenas in the Martin Schwartz case, but did not know which of them had received them;" claimed that they could not truthfully say anything bad about the respondent; and then told them to go back to work and increase their production, because he did not intend to let any employee ride along and benefit by the work done by others Belock then left the room. Henley thereupon turned toward Israel and admittedly stated, "Will you trans- late that [Belock's speech] for us, please?" Garrett who was still present became angry: he went to Belock and asked Belock why he had not discharged the four employees, whom Pross had been told to call into the meeting. Belock replied that he felt sorry for them and decided to give them another chance, whereupon Garrett insisted that they had already been given too many chances. Belock then ordered Pross to discharge Henley, Packer, Furnari, and Schwartz. Pross then went to the drafting room and told the four employees that Belock had ordered him to discharge them. 20 Credible testimony by Yorink and Belock in general corroborated the above version of the incident , except that Yorink and Belock testified that Yorink did not name any of the employees involved at that time 21 Schneider, who was called as a witness by the respondent , was not later discharged. Schneider had been handed a union card in June or July 1946 by Henley but never signed it, and the record falls to show that Schneider was ever interrogated by the respondent regarding organizational matters , or that he gave any information to the respondent regard- ing such activities. None of the other 75 employees whom Henley claims to have signed up for the Union were called to testify. 22 As noted hereinabove, employees Boyer, Peterson, and McCann , together with Henley and Packer all received subpenas by mail delivered to their homes on August 1, to appear and testify as Board witnesses on August 5, 1946 , in the Martin Schwartz case , but Boyer, Peterson , and McCann were not called in to this meeting. On the other hand, Furnari and George Schwartz who had not received subpenas were called in. 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On August 5, 1946, Henley, Packer, Furnari, and Schwartz, in conjunction with Martin Schwartz , filed an amended charge with the Board , and the amended complaint on which this hearing was held was issued by the Regional Director on August 8, 1946. A few days later , on or about August 12, 1946, the first union leaflet was passed out at the plant. It stated, in substance, inter alia : Belock wrongfully wasted government funds in connection with the plant operations ; that he unjustly promoted relatives and personal friends to high paying positions ; that he was prejudiced against war veteran employees ; that an employee's ad- vancement and tenure was contingent upon his ability to heap flattery on Belock and willingness to cringe under a flood of obscene abuse directed against him by Belock ; and that the Union was needed to protect employees against abuse from Belock. As is too often the case when such Union propaganda is used, many of the statements were based upon exaggerated pretensions and name calling which the Board has found to be regrettable , offensive or unethical , even although such conduct may not be expressly prohibited by the Act23 Certainly, in the instant case, where the Board had just previously issued its complaint and set the matter on for an early hearing, such conduct by charging parties would tend to generate a lack of respect and confidence in the processes established by the Act to litigate alleged unfair labor practices . As might be expected Belock, who was obviously a nervous and high strung individual , was infuriated . He plainly stated at the hearing that he was violently opposed to this Union ,2' and asserted that the Board was prejudiced against employers. He developed into a belligerent and ob- streperous witness to such an extent that is almost impossible to evaluate his testimony and determine from it whether his expressed bias against this Union preexisted or was induced by the publication of the above leaflet. The fact that Henley claimed to have been exceedingly active in promoting the Union at the plant for several months before the August 2, 1946, discharges were effected and the record fails to show by convincing and substantial evidence that the respond- ent engaged in coercive anti-union conduct prior to that time , leads the under- signed to conclude that Belock 's violently expressed opposition at the hearing to the Union and to the Board's procedure was primarily due to what he considered, and not without support from the record, to be an unjustifiable personal attack upon him by the publication of the statements in the Union 's handbill . It is true that the respondent is not privileged to make coercive statements directed against its employees , and this is so even at a Board hearing , but the complaint was not further amended at the hearing to include any allegations regarding interference with the rights of employees to self-organization subsequent to the date of issuance. Accordingly, the undersigned will make no findings respecting viola- tions of the Act not alleged in the complaint . This does not mean that any statements or utterances made by Belock at the hearing are condoned or were privileged . Should Belock persist in uttering further coercive threats or dis- criminate in regard to the hire or tenure of any employee, as he angrily threatened to do at the hearing, proper steps may be taken to enforce the provisions of the Act by further amending this complaint or by the filing of new charges against the respondent and the issuance of another complaint. 2a See Corn Products Refining Company, 58 N. L R. B 1441. 21 He angrily testified that the Board might be kept busy for the balance of the year hear- ing alleged discriminatory discharge cases and said "they will probably join the Union on Monday and be discharged on Tuesday " There is nothing in the record to show that any steps have been taken indicating that other employees have been discriminated against after the August 2 discharges. REEVES-ELY LABORATORIES, INC. 753 Conclusions The respondent contends (1) that Henley, Packer, Furnari, and George Schwartz were discharged for inefficiency and insubordination on August 2, 1946, and not for engaging in union or other concerted activities protected by the Act as alleged in the complaint and (2) that none of them were discharged for giving testimony on behalf of the Board in a pending matter before the Board involving the said respondents. The record shows that the respondent had reasonable grounds for believing the four men were inefficient. A group discharge of employees in the drafting room for such reasons was not without precedent in the respondent's plant, for during August or September 1945, five other employees had been discharged for similar reasons. It is also true that the record shows these four employees engaged in activities on behalf of the Union to some extent over a period of about 7 months, but according to their own testimony, Henley was the only one of the group who claimed to have been outstandingly active regarding such activities and he ad- mitted that he carried them on secretively. None of the usual indicia accom- panying an organizing campaign, such as organizational meetings for employees or the distribution of Union literature was indulged in during the period of the claimed organizational activities?` All of the respondent's main witnesses denied having any knowledge that the complainant dischargees were organizing for any union until the first Union leaflet was distributed at the plant several days after the discharges had been effected. Since the claimed union activities were carried on so secretively and unobtrusively it is entirely -credible to the undersigned that the respondent was unaware of them until the August 12 leaflet was distributed It is also significant to the undersigned that the record fails to show by substantial and credible evidence that any coercive statements were made by the respondents threatening employees with reprisals for engaging in organizational activities during the period covered by the allegations in the complaint. Although the matter is not free of doubt, the proof offered in support of the allegations that the above-named four employees were discriminatorily dis- charged in violation of Section 8 (3) of the Act has failed to convince the undersigned that the said allegations have been sustained. Accordingly, he will recommend that they be dismissed. In respect to the Board's contention that the four employees were discharged for the additional reason that they gave information and testimony under the Act, there is no substantial evidence in the record tending to support this claim. It is true that all of them but Furnari had gone to a Board's agent to give information regarding the earlier alleged discriminatory discharge of Martin Schwartz, but there is no substantial and credible evidence in the record tending to show that the respondents possessed such knowledge. Of the four who were discharged, only Henley and Packer received witness subpenas from the Board, on August 1, 1946, to appear and testify on August 5, 1946, at a hearing to be conducted by the Board on the complaint previously issued in the case of Martin Schwartz, whereas employees Boyer, Peterson, and McCann had also 25 Neither did the Union herein join in the filing of any charges against the respondent, although it later moved for leave to intervene in the case, which motion was granted as appears above, 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD been served with similar subpenas by the Board, in the said Martin Schwartz case, on the same day that Henley and Packer received them, and no disciplinary action has been taken regarding Boyer, Peterson, or McCann. Since the hear- ing set for August 5, 1946, in the Martin Schwartz case was never held, it would seem unlikely that the mere service of subpenas on Henley and Packer to testify at a hearing on August 5, was a contributing factor to the discharges effected on August 2. Accordingly, the undersigned will recommend that these allegations also be dismissed. From the foregoing findings of fact and upon the entire record in the case the undersigned reaches the following : CONCLUSIONS OF LAW 1. Federation of Architects, Engineers, Chemists and Technicians, Metropolitan Local 231, CIO, is a labor organization within the meaning of the Act. 2. Respondents are engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 3 Respondents have engaged in no unfair labor practices within the meaning of the Act. Upon the foregoing findings of fact and conclusions of law and upon the entire record the undersigned recommends 1. That the complaint herein be dismissed. 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, Washington 25, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof ; 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 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 05. As further provided in said Section 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. HENRY J. KENT, Trial Examiner. Dated March 19, 1947.