Beaver Machine & Tool Co., Inc.

BEAVER MACHINE & TOOL CO., INC. 33 BEAVER MACHINE & TOOL Co., INC. and UNITED STEELWORKERS OF. AMERICA, C. I. O. Case No. 3-CA-.95. November 19, 1951 Decision and Order On June 15, 1951, Trial Examiner John Lewis issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other alleged unfair labor practices, and recommended dismissal of these allegations of the com- plaint. Thereafter, the Respondent and the Union filed exceptions to the Intermediate Report and supporting briefs. The Board 1 has reviewed the rulings made by the Trial Examiner at the hearing, and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions and briefs, and the entire record in the case. We hereby adopt the Trial Examiner's findings, conclusions, and recommendations only to the extent that they are consistent with the findings, conclusions, and order set forth below. 1. The Trial Examiner found, and we agree, that the Respondent interfered with, restrained, and coerced its employees, in violation of Section 8 (a) (1) of the Act. In so finding, however, we rely solely upon the Respondent's interference with and support of the Beaver Employees' Club,2 and Foreman Gaffney's warning to employee Corts that he "had better not talk about the Union around the shop" or he would be "on the pan." We do not agree with the Trial Examiner's finding that Foreman Borst's jocular inquiry of employee Schultz, on the day of the first union meeting, as to whether he was "going over to get some free beer," was coercive.3 Nor are we convinced, on the evidence as a whole, that Raymond Harvey, the Respondent's accountant-bookkeeper, was so allied and identified with management as to make the Respondent re- sponsible for his antiunion remarks. We therefore reverse the Trial Examiner's 8 (a) (1) finding insofar as it is based on the conduct of Borst and Harvey. I Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three -member panel [ Chairman Herzog and Members Houston and Murdock]. 2 As the Trial Examiner found , this conduct also constituted a violation of Section 8 (a) (2) of the Act. 3 Tennessee Coach Company, 84 NLRB 703, 726. 97 NLRB No. 9. 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The Trial Examiner found that on and after February 2, 1950, the Respondent refused to bargain with the Union, in violation of Section 8 (a) (5) of the Act. We do not agree. The record shows, as set forth in the Intermediate Report, that the Union began its organizing campaign among the Respondent's em- ployees in January 1950. On February 2, by telephone, it asked the Respondent for recognition and a bargaining conference, offering to prove its majority by a card check. The Respondent, through its at- torney, stated that it was not prepared to grant recognition until the Union established its majority in a Board election. On the same day, the Union addressed to Carl Frostholm, the Respondent's president, a written request for a bargaining conference. Frostholm, on Feb- ruary 4, refused the request, stating that, because of information the Respondent had received, and the fact that an employees' association in the plant had bargained for the'employees for some time, the Re- spondent doubted that a majority of the employees desired the Union to represent them, but believed that some of the employees who had signed the Union's membership cards had done so under misleading impressions. Thereafter, on February 13, the Union filed a petition with the Board; and the Board, after a hearing, directed an election. Because of the pendency of the present proceeding, the election has not been held. As we have frequently held,4 an employer who, in good faith, doubts the majority status of a union which demands recognition as the bargaining representative of his employees, may lawfully insist that the union prove its majority in a Board-conducted election. But if, in insisting upon an election, the employer is motivated, not by a bona fide doubt as to the union's majority standing, but by a rejection of the collective bargaining principle or a desire to gain time in which to undermine the union, the demand for an election is no defense to a refusal-to-bargain charge, if the union in fact represented a majority of employees in an appropriate unit at, the time of the refusal to bargain. Here the record establishes, as the Trial Examiner found, that on February 2, the date of the Union's request, the Union was the duly designated representative of a majority of the Respondent's employees in an appropriate unit. On the record as a whole, however, we, unlike the Trial Examiner, are not convinced that the Respondent was acting in bad faith in insisting on an election. It is true that the Respondent had previously engaged in unfair labor practices by interfering with and contributing support to the Beaver Employees' Club (the "Em- ployees' Association" mentioned in the Respondent's letter of February I New Jersey Carpet Mills, Inc., 92 NLRB 604 ; Art craft Hosiery Company, 78 NLRB 333. BEAVER MACHINE & TOOL CO., INC. 35 4), and that it later violated the Act by Foreman Gaffney's warning to employee Corts that he would be "on the pan" if he talked about the Union. In our opinion, however, its unlawful conduct was not of such a character or extent as to establish that its refusal to bargain without an election was based, as the Trial Examiner found, on a desire to avoid recognizing and dealing with an outside union unless compelled to do so, rather than on an actual good faith doubt as to the Union's majority .5 We therefore find, contrary to the Trial Examiner, that the Re- spondent did not refuse to bargain collectively with the Union, within the meaning of Section 8 (a) (5) of the Act. Order Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the Board hereby orders that the Respondent, Beaver Machine & Tool Co., Inc., Syracuse, New York, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Interfering with the administration of, or contributing finan- cial or other support to, Beaver Employees' Club, or any other labor organization. (b) Recognizing or in any other manner dealing with Beaver Em- ployees' Club as the collective bargaining representative of any of its employees, unless and until such organization shall have been certified as such representative by the Board. (c) Warning its employees not to discuss the Union ixi the shop or threatening them with punishment for engaging in such discussions. (d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights 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) Withdraw and withhold all recognition from Beaver Em- ployees' Club as the collective bargaining representative of any of its employees, unless and until it shall have been certified as such repre- sentative by the Board. In reaching a contrary conclusion , the Trial Examiner relied in part on the fact that the Respondent had previously bargained with the Beaver Employees ' Club without demanding proof of its majority. At that time, however, no other organization was claiming to represent the Respondent's employees , whereas at the time the Union made its claim, the Beaver Employees' Club was apparently still functioning as the employeeo bargaining representative. The Union's request therefore raised a question concerninj. representation which could best be resolved by resort to the machinery of the Board. 1. Sviewak A Sons, 71 NLRB 770. 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Post at its plant in Syracuse, New York, copies of the notice attached hereto and marked "Appendix A." 6 Copies of said notice, to be furnished by the Regional Director for the Third Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Third Region in writ- ing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges that the Respondent violated Section 8 (a) (3) and Section 8 (a) (5) of the Act. MEMBER HOUSTON, concurring : I presume the Spieivak case adverted to in this decision is still law. Consequently, although I dissented from the majority there, I con- sider myself bound to concur in the disposition of the present matter, which on the pertinent point is so closely analogous to the Spiewak case. Appendix' A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, ,we hereby notify our employees that : WE WILL NOT interfere with the administration of, or con- tribute financial or other support to, BEAVER EMPLOYEES' CLUB, or any other labor organization. WE WILL withdraw and withhold all recognition from BEAVER EMPLOYEES' CLUB as the collective bargaining representative of any of our employees, unless and until such organization shall have been certified as such representative by the National Labor Relations Board. WE WILL NOT warn our employees not to discuss the union in the shop or threaten them with punishment for engaging in such discussions. 6 In the event that this Order is enforced by decree of a United States Court of Appeals, there shall be inserted in the notice, before the words, "A Decision and Order," the words, "A Decree of the United States Court of Appeals Enforcing." BEAVER MACHINE & TOOL CO., INC. 37 WE WILL NOT, in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed in Section 7 of the National Labor Relations Act. BEAVER MACHINE & TOOL Co., INC., Employer. By ------------------------------------- (Representative ) ( Title) Dated -------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon charges duly filed by United Steelworkers of America, C. I. 0., herein called the Union, the General Counsel of the National Labor Relations Board by the Regional Director for the Third Region (Buffalo, New York), issued his complaint, dated January 17, 1911, against Beaver Machine & Tool Co., Inc., herein called the Respondent and on occasion the Company, alleging that the Respondent had engaged in, and was engaging in, unfair labor practices affecting commerce within the meaning of Section 8 (a) (1), (2), (3), and (5), and Section 2 (6) and (7) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act. Copies of the complaint, the charges, and notice of hearing were duly served upon the Respondent and the Union. With respect to the unfair labor practices, the complaint alleges in substance that the Respondent : (1) On or about April 26, 1950, and at all times thereafter, discriminatorily denied reinstatement to, or refused to reinstate or to reemploy, 13 named `employees;' (2) in or about 1943, initiated, formed, sponsored, and promoted the Employees' Association, and thereafter, until the present time, assisted, dominated, and contributed to the support of, and interfered with, the administration of said Association ; (3) on or about February 4, 1950, and at all times thereafter refused and continues to refuse to bargain collectively with the Union as the exclusive representative of all its employees in an appropriate unit; and (4) from about January 1950 to date, has interrogated its employees regarding their union affiliation ; threatened and warned its employees to refrain from assisting, becoming members of, or remaining members of the Union ; threatened its employees to withdraw benefits and change working conditions if they joined or remained members of the Union; stated to employees that they would be laid off or-discharged if they joined or remained members of the Union ; and threatened and warned its employees to assist, become members of, or remain members of, the Employees' Association. In its answer, duly filed, the Respondent admitted certain allegations of the complaint but denied the commission of any of the unfair labor practices. In addition, the answer alleges affirmatively that the Respondent at no time assisted or interfered with the Employees' Association, "which in fact is not a 1 The names of the employees alleged to have been discriminatorily denied reinstatement are : Matthew Klein, Leon Scheirer, Norbert A. Goike, Fred Goodwin, Carl Kane, Philip Wozniczka, John Maxwell, John Bagan, Theodore Corts, Harold Holmes, Daniel Klapetsky, Henry Scherr , and Francis Strodel. 986209-52-vol. 97-4 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD labor organization and has never bargained collectively with Respondent." It further alleges that the employees named in the complaint were laid off for business reasons and that since their layoff a number of them have been reem- ployed and others have refused reemployment when it was offered. Pursuant to notice, a hearing was held at Syracuse, New York, from February 26. 1950, to March 2, 1951, inclusive, before John Lewis, the undersigned Trial Examiner, duly designated by the Chief Trial Examiner. The General Counsel and the Respondent were represented by counsel, and the Union by a lay repre- sentative. All parties participated in the hearing and were afforded full oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. During the course of the hearing the under- signed denied a motion by Respondent to strike all testimony and evidence regarding any unfair labor practice occurring more than 6 months before the filing of the original charge herein? At the conclusion of the General Counsel's case-in-chief, the undersigned denied a motion by Respondent to dismiss the complaint for lack of proof. A similar motion was made at the conclusion of the entire case, and ruling thereon was reserved by the undersigned. Said motion is disposed of in accordance with the findings, conclusions, and recom- mendations hereinafter made. A motion by the General Counsel made at the conclusion of the hearing to amend the pleadings to conform to the proof with respect to names, dates, and other matters not of substance was granted. The parties waived opportunity to argue orally before the undersigned and elected instead to file briefs. Briefs have been received since the close of the hearing from the General Counsel and the Respondent and have been carefully considered by the undersigned. - Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY The Respondent is a corporation organized and existing under the laws of the State of New York. It maintains its office and principal place of business at Syracuse, New York, where it is engaged in the manufacture of jigs, dies, tools, and duplicate machine parts used in the manufacture of machinery. During the 2 The original charge herein, which was filed May 17, 1950, and served May 18, 1950, alleged violations of Section 8 (a) (1) and (3) of the Act by reason of the Respondent's having discriminatorily refused to rehire laid-off employees and by interrogating, urging, and coercing employees to refrain from assisting or becoming members of the Union. In an amended charge filed November 17, 1950, the Union charged, in addition, violations of Section 8 (a) (2) and (5) by reason of the Company's alleged domination and assistance of the Beaver Employees' Association and its refusal to bargain collectively with the Union. At the hearing the undersigned ruled that the filing of the original charge tolled the running of the statute of limitations even though such charge did not contain any allega- tion of violations of Section 8 (a) (2) and (5). Cathey Lumber Company, 86 NLRB 157, enforced 185 F. 2d 1021 (C. A. 5) ; Stokely Foods Inc., 91 NLRB 1267; and Tennessee Knitting Mills, Inc., 88 NLRB 1103 . The undersigned further ruled that evidence of events antedating by more than 6 months the date of the serving and filing of the original charge was admissible as background evidence, insofar as it shed light on events within the 6-month period of limitations. Axelson Manufacturing Company, 88 NLRB 761; Sun oil Company, 89 NLRB 833; Luzerne Hide and Tallow Co., 89 NLRB 989, enforced 188 F. 2d 439 (C. A. 3)'; cf. P. T. C. V. Cement Inststute, 333 U. S. 683, 705. BEAVER MACHINE & TOOL CO., INC. 39 calendar year 1950, the Company's total purchases of raw materials amounted to $29,657, of which approximately 10 percent represented purchases of materials originating outside the State of New York. During the same calendar year its total sales amounted to $246,867, of which approximately $13,600 represented finished products, consisting of machines, which were shipped outside the State of New York at the request of Respondent's customer, the Schroeder Machine Company. In its Decision and Direction of Election dated June 21, 1950, the Board took jurisdiction over the Respondent based primarily on the fact that the tools and dies produced by it were essential to manufacturing enterprise engaged in inter- state commerce.' In that proceeding it appeared that of total sales amounting to $203,422.35 during the fiscal year April 1, 1949, to April 1, 1950, $35,000 repre- sented products sold to a customer within the State which were shipped out of the State at the customer's request, $59,000 represented sales of parts to a cus- tomer which used them as constituent parts of materials shipped outside the State, and $28,000 represented sales of tools for the manufacture of parts destined for out-of-State shipments. Approximately $150,000 of the Company's sales were to customers engaged in interstate commerce. Respondent contends that the Board should not assert jurisdiction because of the declining amount of direct shipments out of the State. However, aside from the direct shipments outside of the State the evidence discloses that the Re- spondent has continued since the representation hearing to sell substantial quantities of tools and parts to interstate producers which use said tools and parts in the manufacture of products for shipment out of the State.' Such customers of Respondent continue to be substantially the same as they were at the time of the representation hearing. Since such sales to interstate producers exceed $50,000, it would, under the Board's previous decision in the representation case and under the jurisdiction policies of the Board more recently announced,' effectuate the purposes of the Act to assert jurisdiction over Respondent. It is accordingly found that at all times material the Respondent was and is engaged in commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED United Steelworkers of America, C. I. 0., is a labor organization which admits to membership employees of the Respondent Company. III. THE UNFAIR LABOR PRACTICES A. The domination and assistance 1. The formation and development of the Beaver Employees' Club The earliest evidence of any organizational activity among Respondent's employees is the formation in 1941 or 1942 of an organization known as the 190 NLRB 529. Board Member Murdock dissented from the Board 's assertion of iuris- •diction over Respondent. 6 Among such sales during the calender year 1950 were : $64,700 consisting of machine parts sold to Sealright Division of Oswego Falls Corporation which assembled such parts into machinery for shipment all over the world; $24,700 consisting of aircraft parts sold to the Bendis Aviation Company ; $10 ,000 consisting of machine parts sold to International Business Machine Company ; and $11,800 consisting of machine parts and tools sold to the General Electric Company. 5 Hollow Tree Lumber Co., 91 NLRB 635. 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Beaver Employees' Club.' The Club's activities, during most of the period of its existence, were primarily benevolent and social in character. It sent flowers or made monetary contributions to employees on occasions such as marriage, illness, or birth in the family. It periodically ran picnics, clambakes, and similar social functions. Most of the employees were members of the Club and signed cards authorizing the Company to deduct from their wages 10 cents a week as the weekly dues of the Club. These dues were turned over periodically to the Club's treasurer who deposited them in the Club's bank account. The Com- pany's president, Carl Frostholm, and its treasurer, E. C. Simmonds, were made "honorary members" of the organization' and two of the supervisors, Joseph Gaffney and William Borst, were dues-paying members of the organiza- tion. The record does not disclose, however, that the company officials or supervisors had anything to do with the formation of the organization or that any of them took an active part in it, either as an officer or as a member of any committee. In addition to the revenues received from the weekly dues, the Club received a certain portion of the proceeds of several vending machines which they arranged with an outside vending machine company to install on the premises, having received permission therefor from the Company. When the Club ran its clambakes, the Company contributed $1 per employee for the privilege of being allowed to invite its customers to attend the function. During its early years the Club held regular monthly meetings. However, beginning around 1946 and 1947, meetings were held only sporadically when required by some special occasion such as the election of officers or the making of plans for a clambake. At one time the Club had a set of bylaws, but they had become lost and at the time of the hearing in this case no one seemed to be familiar with their contents. During the last years of the organization, elec- tions of officers were held only infrequently. The last election was held in 1948, the officers then elected continuing in office until February 1949 when the Club disbanded. Meetings of the organization were held on company property, in the reception room which was part of the office of President Frostholm. The meetings were usually held during lunch hour but would occasionally run beyond the lunch hour by 5 or 10 minutes. The first instance, appearing from the record, of the Club acting other than as a social and benevolent organization occurred during 1945 when a committee representing the Club met several times with President Frostholm and Treasurer Simmonds to discuss the subject of the employees receiving paid vacations. Although at first the company officials were unwilling to grant this request, they later agreed to do so. The next meeting with a management representative concerning an incident of the employment, relationship occurred during 1948 when a committee of the Club talked to Supervisor Borst about the need to have the men's lavatory cleaned up. Borst agreed to have .one of the.mainte- nance employees clean up the room. 6 This organization is referred to in the complaint as the "Employees ' Association" Rowever, the organization's treasurer, William Ferrall , testified that the correct name was the "Beaver Employees Club," that being the name appearing on the organization's bank account and on cards signed by the members authorizing the Company to make payroll deductions covering their dues. 7 The General Counsel claims that Frostholm and Simmonds attended meetings of the Club. Although there is some testimony suggesting this to be the case, a reconciliation of all the testimony indicates that the meetings which they attended were not business meetings of the Club but meetings requested by the Club to discuss certain demands with management. BEAVER MACHINE & TOOL CO., INC. 41 Despite the 2 instances above related, there was no overt effort to transform the organization into a formal labor organization until September of 1949, at- which time the United Mine Workers Union was attempting to organize the plant. Around September 21, 1949, the club president, Howard Staring, and its treasurer, William Ferrall, attempted to get club members to sign cards which authorized the Club "to act as a bargaining agent." There is nothing in the record to show that the Company instigated or suggested this action.' It does appear, however, that the cards were mimeographed by Ferrall and Staring on the Company's mimeograph machine, during their lunch hour, with the permis- sion of the bookkeeper, Margaret Nerlich s Most of the cards were passed out during the lunch hour. However, a few of the employees who were working on the night shift were asked to sign cards during working hours. It is clear from the testimony that the Company was aware that these cards were being handed out on its premises. Out of about 38 members in the Club, 29 signed cards authorizing the organization to act as bargaining agent. None of the super- visors or office personnel were asked to sign cards because, according to Ferrall, the office manager, Walter Young, had previously told him that all "management" employees would have to drop out of the Club During October or early November 1949, Staring and Ferrall, as a committee of the Club, met with Frostholm and requested that the Company grant the employees six paid holidays. Frostholm had previously been informed by Star- ing that a majority of the employees had designated the Club as their bargaining representative. Frostholm informed the committee that business was bad and that the Company could not then grant the request for paid holidays. As will hereafter more fully appear, the United Steelworkers Union began its organizing drive among Respondent's employees on January 18, 1950. On Feb- ruary 2, 1950, it formally requested recognition and a bargaining meeting. The Company refused to recognize the Union or meet with its representatives, giving as one of its reasons the fact that a majority of its employees had designated the Club as their bargaining agent.' In the meantime, during January or early February 1950, a committee on behalf of the Club again met with Frostholm to discuss the subject of paid holidays. This time Frostholm informed them that the Company would grant them three holidays with pay and asked them to let him know which holidays the employees wanted. The committee later polled the employees as to their wishes but there was so much confusion attendant on the poll that they never informed the Company as to the result thereof. Beginning February 13, 1950, and continuing until March 19, 1950, the Com- pany laid off 16 employees due to bad business conditions. In the latter part of February 1850 the Club disbanded and its funds were divided among all of its members. The decision to disband the organization resulted, according to Fer- rall, from the fact that many of the members were being laid off in the reduction in force and it was felt that the money which they had contributed to the treas- ury should be equally divided among all the employees. Subsequent to the dis- banding of the Club its share of the proceeds from the vending machines were 8 The General Counsel contends that the idea of passing out the cards emanated from Simmonds, citing in support of this contention the testimony of employee Robert Schultz that when Ferrall asked him to sign an authorization card he told him that Simmonds had suggested the idea. No finding can be based on this testimony since it was clearly hearsay and was received only as background evidence upon the General Counsel's assur- ance that he was "not asking for a finding based on this conversation " 9 The above finding is based on the testimony of Ferrall and Staring . According to Simmonds' testimony, Nerlich had asked him for permission to type out some of the cards for the Club and he had told her she could not do it. 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD received by the Company. The evidence does not disclose any further meetings *between the Company and the Club after February 1950. It does not appear, however, that the Company ever posted any notice to the effect that it no longer recognized the Club as a representative of its employees. 2. Contentions and conclusions In its answer and at the hearing, Respondent contended that the Club was not a labor organization. It is not apparent from its brief whether it is still urging this position. However, it is clear from the evidence that the Club did in fact act as a labor organization within the meaning of Section 2 (5) of the Act. Al- though its primary purpose during most of the period of its existence was apparently social and benevolent in character, the evidence discloses that on various occasions in 1945, 1948, 1949, and 1950 it dealt with the Company as a representative of the employees with respect to such terms and conditions of employment as vacations, cleanliness of washroom facilities, and holidays. After September 1949, it took on the announced purpose of a labor organization. That the Company recognized it as such is evident from the letter which it wrote to the Union on February 4, 1950, in response to the latter's request to bargain, in which it advised the Union that: "There has been for some time an Employees' Association 10 in our plant which has bargained for the men." Under Section 2 (5) of the Act, it is not necessary that an organization exist exclusively for the purpose of dealing with employees concerning the various terms and conditions of employment. It is sufficient if it exists "in part" for such purpose." The undersigned therefore finds and concludes that at all times material, the Beaver Employees' Club was a labor organization within the meaning of the Act. The next question to be determined is whether the Club was a "dominated" or "assisted" organization. In support of his contention that the Club was dominated and assisted, the General Counsel cites the following facts, among others: 12 (1) The Club was permitted to hold meetings at the plant which- sometimes extended into working hours; (2) supervisory employees were per- mitted membership in the organization; (3) the Company permitted the opera- tion of vending machines in its plant from which the Club derived revenues ; (4) the Company contributed $1 per employee toward the expenses of club clambakes; (5) the Company assisted the Club in the checkoff of dues; (6) the Company permitted the use of its mimeograph machines by the Club ; and (7) the Company immediately recognized the Club as bargaining agent and dealt with it concerning holidays without requiring any proof of majority, although it later refused to recognize the outside union without a representation election. The Respondent, although not conceding that the Club was a company-as- sisted or dominated organization, contends that substantially all of the evidence offered by the General Counsel relates to a period outside the 6-month period of limitations established by Section 10 (b), and that since there is no substantial evidence of violation within the statutory period, under the Board's decision in Tennessee Knitting Mills, Inc., 88 NLRB 1103, no finding of unfair labor practice should be made. In the opinion of the undersigned, Respondent's posi- 10 It was apparently this designation by the Company which was responsible for the General Counsel so referring to the organization in the complaint. u General Shne Corporation, 90 NLRB 1330. 12 In his brief the General Counsel also cites the fact that Frostholm and Simmonds attended meetings of the . organization , and that the idea of passing out cards designating the Club as bargaining agent emanated from the Company. However, the undersigned has previously found these claims not to be sustained by the testimony. BEAVER MACHINE & TOOL CO., INC. 43 tion in this respect is without merit. While it is true that much of the evidence of violation relates to a period which is barred by the statute of limitations from serving as the basis for the issuance of a complaint, there is nevertheless sub- stantial evidence of violation within the critical period" Thus it appears that the Club continued to receive assistance in the form of revenues from the vending machines down to the date it disbanded, which revenues have since inured to the benefit of the Company. This is a form of support and assistance held by the Board to violate the Act" Likewise, Supervisors Borst and Gaffney con- tinued to remain members of the organization until it disbanded, thus giving it the stamp of Respondent's approval" Further evidence of Respondent's assistance to the organization is the fact that it continued to check off dues until February 1950. Although this checkoff was proper during the early stages of the Club's existence before it began acting as a labor organization, it became improper after the organization took on the aspects of an assisted labor organization." Further evidence of assistance within the statutory period was Respondent's willingness to grant the employees paid holidays during January or early February 1950. Although in October or early November 1949, Frostholm had been unwilling to grant the employees any paid holidays because of the Company's bad financial condition, when the club representatives came to see him several months later he was willing to make concessions in this direction despite a worsening in the Company's financial plight which, a few weeks later, made it necessary to lay off a substantial number of employees. He offered to grant the employees three paid holidays and directed the committee to ascertain the wishes of the employees. A poll of the employees was thereafter taken on company time and property. This sudden change of heart, without any logical explanation being offered therefor by the Company, can only be explained with the reference to the Steelworkers' organizing campaign and as an effort on the part of the Company to assist the more pliable inside organization" In the opinion of the undersigned there is substantial evidence in the record of support of, and assistance to, the Club within the 6-month period of limita- tions. The evidence does not, however, support a finding of domination within that period.18 The undersigned finds and concludes that by the activities described above the Respondent interfered with the administration of a labor organization and contributed support thereto, thereby interfering with, restrain- za Respondent urges that the application of the statute of limitations should be determined with reference to the amended charge filed November 17, 1950, which was the first charge alleging a violation of Section 8 (a) (2) of the Act. However, as hereinbefore indicated (footnote 2), the running of the statute of limitations was tolled by the filing of the original charge in May 1950, even though such charge did not specifically claim any violation of Section 8 (a) (2) On this basis, all evidence of events occurring on and after November 18, 1949, may be considered in making a finding of unfair labor practice. Evi- dence of events prior thereto may be considered as reflecting the historical background of the Club, although no finding of unfair labor practice may be based thereon. 14 James R. Kearney Corporation, 81 NLRB 26, 27; The Carpenter Steel Company, 76 NLRB 670, 689; Lane Lifeboat and Davit Corporation, 60 NLRB 473, 479; Gilfillan Bros., Inc., 53 NLRB 574, 585. 15 Although there is testimony by Staring that Office Manager Young told him manage- ment representatives would have to drop out of the club, there is no evidence that Gaffney or Borst ever resigned from the organization. On the contrary, according to Simmonds' own testimony, the Company continued to check off their dues as club members until the organization disbanded on February 19, 1950. 16 Wells-Lamont-Smith Corporation, 41 NLRB 1474, 1480; C. Ray Randall Mfg. Co., 88 NLRB 140, 148. 17 Frostholm admitted in his testimony that he became aware of the Union's organizing efforts the first day they started handing out handbills announcing the January 18 meeting. 18 Hershey Metal Products Company, 76 NLRB 695, 697. 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act. B. The refusal to bargain 1. The appropriate unit and majority representation therein The complaint alleges, the answer admits, and the undersigned finds that all production and maintenance employees of the Respondent at its Syracuse, New York, plant, exclusive of office and clerical employees and supervisors, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. Respondent denies, however, that the Union had a majority in the appro- priate unit. In support of the allegation of majority, the General Counsel offered the testimony of John Kowalski, a staff representative of the Union, who conducted the drive to organize the Company's employees. According to Kowalski's testimony, the Union held an organizational meeting on Jan- uary 18, 1950, which was attended by about 25 employees. Kowalski identified membership application cards purporting to have been signed by 20 employees. In addition, there were received in evidence 5 other membership application cards identified by employees Theodore Corts and Philip Wozniczka as having been turned over to them by other employees who signed the cards in their presence. These cards, which were later turned over to Kowalski, were dated, respectively, January 18 and 19, February 19 and 20, and March 4, 1950. The request to bargain herein was made on February 2, 1950. At that time there were 34 employees employed by the Respondent in the appropriate unit. If all of the cards dated prior to February 2 may be regarded as authentic, 22 employees would have designated the Union as their bargaining agent, clearly a majority of the Respondent's employees. However, the Respondent questions the authenticity of these dates because of certain erasures and alterations on several of them and because of certain conflicts in the testimony regarding the dating and signing of some of the cards. Of the 20 cards identified by Kowalski as having been signed at the meeting of January 18, only 5 were dated by the employee signing the card. On the balance of the cards the employee merely signed his name without dating the card and Kowalski, according to his testimony, inserted the date 1/18/50 at the meeting after he received the cards from the employees. Respondent ques- tions the authenticity of the dates on the cards alleged to have been dated by Kowalski. The only point raised by Respondent which, in the opinion of the undersigned, merits serious consideration revolves about the card purporting to have been signed by Thomas Konick. During the early part of his testimony Kowalski identified 21 cards, including that of Konick, as having been signed at the January 18 meeting. However, on voir dire examination when Re- spondent's counsel questioned the authenticity of Konick's card because of its mutilated condition and an alleged erasure in its date, the General Counsel withdrew all 21 cards. Thereafter, all of the cards except Konick's card were reintroduced during Kowalski's testimony as having been signed at the January 18 meeting. Konick's card was subsequently reoffered during the testimony of employee Wozniczka who testified that Konick signed the card and gave it to him several days after the January 18 meeting and that he carried it in his own pocket for about a week before turning it over to Kowalski. Although Kowalski no longer claimed that this card was signed at the meeting, he BEAVER MACHINE & TOOL CO., INC. 45 still claimed that the date "1/18/50" was in his handwriting. No explanation was given, however, as to why it was so dated. The question arises whether, because of the confused and conflicting testimony with respect to Konick's card, sufficient doubt is created with respect to the other cards which Kowalski claimed to have dated as to destroy the Union's claim of majority. In the opinion of the undersigned, this question requires a negative answer. The undersigned is satisfied from the testimony regarding this meeting that there were between 20 to 25 employees present. The employees who testi- fied regarding the meeting were in substantial agreement that all or practically all of those present signed cards. Five of the cards were dated January 18 in the handwriting of the employee signing the card. Five other employees who had signed but not dated their cards verified the fact that they signed the card at or about January 18, on the occasion of the first union meeting. When Kowalski spoke to the company representatives on February 2 to request recog- nition he offered to submit to a card check to prove the Union's majority. It is difficult to believe that he would have made such an offer if he were not pre- pared to exhibit cards signed by at least 18 employees." The undersigned is satisfied from the evidence as a whole as to the authenticity of the 20 cards, excluding Konick's,•purporting to have been signed at the January 18 meeting. With respect to Konick's card, which is also dated January 18, while it seems evident that it was not signed at the meeting, it is likely that his card was signed prior to February 2 since, according to Wozniczka's testimony, it was signed and turned over to him within about a week after the meeting. With regard to a card signed by Michael Macko, which is dated "1/19/50" and which Wozniczka testified he also turned over to Wowalski several days after the meeting, it is likely that it too was signed prior to February 2 since Macko was one of the em- ployees instrumental in the organizing drive in the first instance" However, even disregarding the cards purported to be signed by Macko and Konick, there are 20 cards which were signed prior to February 2, 1950. The undersigned accordingly finds that at the time of the request to bargain herein and at all times material, the Union was the duly designated representa- tive of a majority of Respondent's employees in the appropriate unit and that, by virtue of Section 9 (a) of the Act, it was at all said times and still is the exclu- sive representative of the employees in such unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. 2. The refusal to bargain On February 2, 1950, following another union organizing meeting the previous day, Kowalski telephoned Frostholm to request recognition. Frostholm referred him to the Company's attorney, Henry S. Fraser. In his telephone conversation with Fraser on the same day, Kowalski informed him that the Union repre- sented a majority of the Company's employees and requested a bargaining con- ference as soon as possible. When Fraser expressed doubt as to the Union's majority, Kowalski offered to prove it through a card check. However, Fraser stated the Company was not prepared to recognize the Union until it could prove 10 Since Respondent had on file the signed cards of employees authorizing deduction of dues for the Club, it would have been in a position to verify the signatures on the union cards. 20 According to Kowalski's testimony , Wozniczka and Macko came to see him at his office shortly before January 18 and asked him to organize the plant. 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its majority through a National Labor Relations Board election . On the same day Kowalski addressed the following letter to Frostholm in order, according to his testimony, "to have something on the record" : You, no doubt, are aware of the organizing campaign that has been conducted in your plant by this organization , the United Steelworkers of America-CIO. A substantial majority of your employees have designated this Union to be their collective bargaining agent by signing a membership card. We, therefore, are requesting a meeting with you and any other repre- sentative you may designate to meet with a committee designated by the membership of this Union for the purpose of negotiating a satisfactory agreement covering rates of pay, hours of work and other conditions of employment. We are prepared to meet with you on Wednesday , February 8th at 10: 00 A. M. at your office or any other place or time that will be convenient to you. By letter dated February 4, 1950 , Frostholm , with the assistance of Attorney Fraser, addressed the following reply to the Union : This will acknowledge receipt of your letter of February 2, 1950 , claiming that you represent a majority of our employees and requesting that we bar- gain collectively with you. From information coming to us we do not believe that a majority of our employees desire you to represent them . Moreover, information in our possession leads us to believe that some of those who signed your membership cards did so under misleading impressions. There has been for some time an Employees ' Association in our plant which has bargained for the men. That is another reason why we do not believe a majority of our employees want you as their bargaining rep- resentative, or that those who have signed your cards did so with the facts about our business correctly represented to them. Under such circumstances we decline to meet with you for purposes of collective bargaining. On February 13, 1950, the Union filed a petition with the Board for certifica- tion of representatives. Pursuant to the Union's petition a hearing was held before a hearing officer on April 11, 1950. At this hearing the question was raised whether those employees who had been laid off between February 13 and March 19, 1950, should be permitted to vote in the election . The Union took the position that the layoff was temporary , while the Company claimed that because of business conditions there was no immediate expectation of their reemployment. The Board issued a Decision and Direction of Election on June 21 , 1950, in which the laid-off employees were held ineligible to vote. In the meantime , the Union filed its original charge in this proceeding on May 17, 1950, claiming that the Company had discriminated against the laid-off employees because of their union membership. On the basis of the pendency of the unfair labor practice charge the Board amended its Decision and Direction of Election by order dated July 6, 1950, so as to postpone the holding of an election until "such time as the Board shall in the future direct, upon advice from the Regional Director, that -an election may appropriately be held." Concluding Findings According to Frostholm's letter, the Company questioned the Union 's claim of majority because: (1) "From information coming to us we do not believe BEAVER MACHINE & TOOL CO., INC. . 47 that a majority of our employees desire you to represent them"; (2 ) those who signed union application cards did so "under misleading impressions ," i. e., the facts regarding the Company's business were not "correctly represented to them" ; and (3 ) the Company recognized the "Employees ' Association" as the bargaining agent for its employees . With respect to the first reason , the undersigned found Frostholm's testimony generally vague and unconvincing . He testified merely that there were "general remarks" made around the shop by "various employees that they didn't want any part of the Union ." According to Frostholm he - didn't ask the employees how they felt but they volunteered the information. He had no recollection of the names of any employees , with one possible ex- ception;' who had so advised him or as to how many of them had so expressed themselves. With respect to the second reason given in his letter, Frostholm's explanation was that a rumor had been spread around the shop that the Company had made $400,000 that year whereas they had in fact lost a substantial sum of money. It is not entirely clear from his testimony whether the Union was responsible for spreading this rumor or not. Assuming , however, that it was, this was mere campaign propaganda or sales talk typical of union organizing campaigns and does not constitute such fraud , coercion, or duress as to interfere with the free choice of the employees or nullify their signed designations of the Union as a bargaining agent. In the opinion of the undersigned any rumors which may have been spread by the Union as to the Company 's financial con- dition do not furnish any justification for questioning its majority. From the general context of events and the record as a whole , the undersigned is convinced that it was the third reason given in Frostholm's letter which was basic to his refusal to recognize the Union , viz, the fact that the Company rec- ognized the Beaver Employees ' Club as bargaining agent for its employees. However, as the undersigned has previously found, the Club was an illegally .assisted organization . It is well established that an employer may not use such an organization as a pretext for refusing to bargain with a bona fide labor organization. A situation somewhat similar to that in the instant case was pres- ent in John Engelhorn and Sons, 42 NLRB 866, 875, where the respondent's refusal to recognize and bargain with a CIO union was based , among other things, on the fact that it had existing contractual relations with Local 174, an AFL affiliate, which the Board found to be an assisted union. In holding the respond- ent guilty of a refusal to bargain the Board stated : Since the closed-shop contract was made with a labor organization which was assisted by action defined in the Act as an unfair labor practice, the respondent cannot rely upon the existence of its contract with Local 174 to excuse its refusal to bargain with the CIO. A similar holding was made in Wm. Tehel Bottling Company, 30 NLRB 440, 452, enforced 129 F. 2d 250 (C. A. 8), where the Board stated that : ... the existence of a contract with an employer-dominated organization affords no justification for an employer's refusal to bargain collectively with the duly designated representative of the majority of his employees within an appropriate unit. See also Pacific Plastic and Mfg. Co., Inc., 68 NLRB 52, 80. In its brief Respondent contends that its refusal to bargain was based on a good faith doubt as to the Union's majority because it bad reason to believe that n Frostholm's testimony contained a somewhat confused reference to the fact that when Harold Holmes was laid off on March 17 , 1950 , he wrote something on a card that he wanted no part of the Union and didn't think anybody else did either. 22 Cf. Lakeshore Electric Mfg. Co., 67 NLRB 804, 810; Maywood Hosiery Hilts, Inc., 64 NLRB 146, 151; N. P. Nelson Iron Works, Inc., 78 NLRB 1270, 1271. 48 -DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Club still represented a majority of the employees. To support this claim Respondent cites the fact that in September 1949 it had been informed a majority of the employees bad authorized the Club to act as their bargaining agent, that as recently as January 1950 a committee of the Club had dealt with it regarding holidays, and that none of the employees had ever revoked his card authorizing the deduction of his dues in the Club. Aside from the fact that Respondent's argument involves reliance on an organization which it helped to keep alive by its illegal assistance, the undersigned considers this argument lacking in merit. It does not follow that because a majority of the employees may have signed cards authorizing the Club to act as their bargaining agent in September that they were still so minded 5 months later after the Union had undertaken its energetic organizing campaign. Respondent was apparently aware that a num- ber of these employees had signed cards in the Union, albeit it preferred to be- lieve they did so under "misleading impressions." The fact that a committee of the Club sought to negotiate on holidays in January 1950 likewise does not establish that the Club still represented a majority of the employees. On the contrary, Respondent's precipitate reversal of its previous refusal to grant any paid holiday suggests that it was seeking to bolster the Club's sagging in- fluence. Finally, the fact that the employees had not revoked the Company's authorization to deduct club dues does not establish that they still wanted the Club to act as their bargaining agent. These dues-deduction cards had been on file with the Company since the days when the Club had purported to exist as a social organization. Even the nine employees who refused to designate the Club as their bargaining agent continued to have their club dues deducted and did not revoke the authorization therefor. Indicative of Respondent's lack of good faith in questioning the Union's ma- jority is its disparate treatment of the Union as compared with the Club. In Sep- tember 1949, when the United Mine Workers was attempting to organize the plant, Respondent accepted without question the Club's claim that a majority of the employees had authorized it to represent them as bargaining agent. No re- quest was even made to see the cards signed by the employees authorizing the Club to act as bargaining agent. However, in February 1950, when the Union offered to prove its claim of majority by a card check, Respondent refused to ac- cept this offer and insisted on an election. While an employer is within his rights in requesting an election where he entertains a good faith doubt as to majority, such doubt must be based on something more than a mere desire to put a union to a contest of strength in the hope it may somehow lose the elec- tion.' From a letter which Frostholm later wrote to Corts, it seems evident that Respondent's response to the Union's request was influenced by its basic hostility to "outside" organizations. While, as will subsequently appear, the writing of this letter was not an unfair labor practice, its expressed opposition to "the outside union trying to get into the plant," may be considered as part of the over-all picture in determining Respondent's motives. Further evidence of Respondent's lack of good faith may be found in the position taken by it at the representation hearing in April. Although the Club has ceased to exist by that time, Respondent was still urging as the basis for its refusal to recognize the Union "the reasons set forth in the Company's letter of February 4th." Basic to the reasons set forth in that letter was Respondent's claimed belief that the Club represented a majority of the employees. Respond- ent was thus in the anomalous position of relying on a defunct organization as a reason for questioning the Union's majority status. Is E. A. Laboratories, Inc., 80 NLRB 625, 6$3. BEAVER MACHINE & TOOL CO., INC. 49 • On the record as a whole, the undersigned is convinced and finds that Re- spondent's refusal to bargain with the Union was not based on any good faith doubt as to the Union's majority but rather on its desire to avoid recognizing and dealing, with an outside union unless compelled to do so. The undersigned finds and concludes that on February 2, 1950, and at all times thereafter, the Respondent refused to bargain in good faith with the Union as the exclusive representative of its employees in an appropriate unit. C. The interference, restraint, and coercion 1. Statements by Raymond Harvey The General Counsel claims that several statements made to employees by Raymond Harvey, employed as an accountant-bookkeeper in Respondent's office, are violative of the Act. Before considering these statements it is necessary to determine Harvey's authority to speak for the Company since Respondent con- tends that Harvey was not a supervisory employee and that it is not bound by his statements. The evidence discloses that Harvey was employed by Respondent as an ac- countant and bookkeeper. It further appears that he exercised some degree of supervision over the other employee working in the office, Margaret Nerlich, who was employed as a stenographer and who spent part of her time taking dictation and doing other work for Harvey.' Harvey also "supervised the payroll," which involved checking the time cards of employees and discussing inaccuracies with them.' He took care of the Blue Cross and group insurance policies cov- ering the employees, advising them when they were in arrears and giving them information when they sought it. The record discloses that in correspondence with employees regarding their insurance he signed the letters as "Office Manager." R0 Prior to Harvey's employment, Respondent employed Walter L. Young as office manager. There is no question as to Young's supervisory status. How- ever, Respondent contends that Harvey's authority was much more limited than that of Young. Thus its witnesses cited the fact that during Young's employ- ment there were six or more people in the office, including a full-time book- keeper, while during Harvey's tenure there was only one other employee in the office and that Harvey himself was required to do all the bookkeeping. Like- wise, according to Simmonds' testimony, Young, who had the title of purchasing agent, interviewed salesmen and made purchases of materials on behalf of the Company while Harvey's authority in this respect was more limited. It does appear, however, that Harvey did some purchasing of materials on occasions when Frostholm or Simmonds were not present and that he did purchase office supplies on behalf of the Company. Respondent also refers to the fact that Harvey was a relatively low-paid hourly rated employee, as militating against a Although Respondent denies that Harvey had any supervisory authority, there is testimony by company officials to the contrary. President Frostholm, when asked whether Harvey had authority to tell Nerlich what to do, testified : "On occasions, yes." He further testified that Harvey could "boss" her "[tlo a certain extent" and that he "might have" assigned work to her. Simmonds, the treasurer, although denying that Harvey had any authority over Nerlich, admitted that Nerlich took dictation from Harvey. Although 90 percent of her time was devoted to doing work for Simmonds and Frostholm, she did spend approximately 10 percent of her time taking dictation and doing work for Harvey. ?b Frostholm testified that Harvey "supervised the payroll ." However, according to Simmonds , he could not make changes on time cards without the approval of Borst or Gaffney 26 According to Simmonds , the Company was not aware that Harvey was. using that title. 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his being considered a supervisory employee. The evidence discloses that Harvey entered Respondent's employ in February 1950 at $1.40 an hour and that when he left in January 1951, he was receiving $1.50. However, Young, who had been employed by Respondent for a much longer period of time, was also an hourly rated employee and was only receiving $1.50 an hour at the time of his severance of employment in November 1949. Prior to his employment by Respondent, Harvey had been employed as an assistant manager in another company, in charge of the employees in its bookkeeping department, of which fact Respondent was aware at the time of his employment. From the record as a whole, the undersigned is satisfied that whether or not Harvey was technically a supervisory employee, he was sufficiently allied and identified with management by reason of the duties which had been assigned to him and the work he performed as to make the Company accountable for any coercive statements made by him to employees." The undersigned now turns to consider the various statements attributed to Harvey by rank-and-file employees. One of the' incidents involving Harvey was that testified to by Philip Wozniczka. According to the latter, he had a conversation with Harvey shortly before the Company started laying off employees in February 1950 in which Harvey stated : "You will never get a union in here because it is a small place and unions are no good anyway." This statement was made by Harvey in response to a question from Wozniczka as to what he thought of having a union in the plant. Assuming that the above remark was made by Harvey,' the undersigned finds that it was protected free speech and did not violate the Act. Another incident relied on by the General Counsel is that involving employee Theodore Corts. According to Corts, shortly after he had been laid off in March 1950 he had a conversation with Harvey in a tavern in which Harvey told him "that the Company would like to find out who was trying to start the union in the shop." Harvey stated that the Company had "a pretty good idea" who the individuals were, mentioning the names of Robert Schultz, Philip Wozniczka, and Michael Macko and also stating that he was in doubt about the witness. On a later occasion in April, Corts again met Harvey and the latter told him that his name and that of Frank Strodel had been "brought up in the office" and that Simmonds hadn't wanted him laid off, but Frostholm had stated that Corts and some others had to go because they "were for the Union." Harvey further told him, according to Corts, that he would not have been laid off "if I had not monkeyed around with the Union." Corts' testimony was substantially corroborated by Wozniczka who was present on this occasion. The undersigned finds that by Harvey's interrogation of Corts as to who was trying to start the Union and by the statement that employees had been laid off because of their union activity, Respondent interfered with, restrained, and coerced its employees in the exercise of the, rights guaranteed by Section 7 of the Act. Although Corts and Wozniczka had already been laid off at the time of these incidents, the testimony discloses that they, as well as the other employees, were given the impression that they would be recalled when business picked up. It also appears that Respondent had a practice of recalling laid-off 17 Joy Silk Hills, Inc., 85 NLRB 1263, 1279, enforced 185 F. 2d 732 (C. A. D. C.) ; cert. den. 341 U. S. 914; Red Arrow Freight Lines, 77 NLRB 859; Hadim Asphalt Roofing Corp., 85 NLRB 26, 30, footnote 11; Sioux City Brewing Company, 82 NLRB 1061 , 1063, footnote 7; Harrison Sheet Steel Co., 94 NLRB 81. 28 Harvey was not available as a witness , he having left Respondent 's employ in January 1951. It does not appear what efforts, if any, were made to subpena him to testify. BEAVER MACHINE & TOOL CO., INC. 51 employees after its periodic layoffs due to declines in business . All but three of the laid-off employees here involved were actually recalled or offered reinstate- ment beginning in August 1950. Under these circumstances, the undersigned finds that Corts and Wozniczka were still employees at the time Harvey made the statements above related.21 2. Interference by others Another incident relied upon by the General Counsel in support of the allega- tion of interference, restraint, and coercion involves employee Robert Schultz. According to Schultz' uncontradicted and credited testimony, Foreman Borst engaged him in a conversation just before the union meeting which was scheduled to be held at Skrupa's Grill on January 18, 1950, and asked him : "Are you going over to get some free beer tonight?" It is obvious from the context in which this question was asked that Borst was referring to the union meeting. Inter- rogation of employees regarding attendance at union meetings has been held to constitute interference, restraint, and coercion.'° Although Schultz, who is now himself a supervisory employee, testified that Borst's remark was "just more of a joke" and that he was laughing when he said it, the Board has held such interrogation to be coercive because of the tendency which it normally has, even though in the particular instance the employee was not in fact intimidated 81 Another incident cited by the General Counsel involves a conversation between Corts and Foreman Gaffney which took place during the middle of February 1950. According to Corts, he and Gaffney had a rather lengthy conversation at Corts' machine about unions, during the course of which Gaffney told him that: ... he was tipping me off that I had better not talk about Union around the shop, because it would be getting back into the office and I'd be on the pan, like a couple of the guys downstairs. Gaffney admitted having had a conversation with Corts and, in the main, corrob- orated his version of this conversation , except that he had no recollection of warning Corts to refrain from union activity. The undersigned found both Gaffney and Corts to be credible witnesses. However, Corts' recollection regard- ing this incident appears to have been much clearer and the undersigned credits his version of the conversation " The undersigned finds that by Gaffney's state- 29 Fajardo Development Co., 76 NLRB 956, 958 ; American Cynamid Co., 19 NLRB 1026, 1033; Northern Indiana Brass Co., 36 NLRB 581. Although the Board in its Decision and Direction of Election , dated June 21, 1950, held the laid-off employees ineligible to vote, its determination was made on the basis of facts much more limited than those available in the instant proceeding. The determinations , findings, conclusions, and certification of the Board in a representation proceeding are not res judicata in a subsequent complaint proceeding before the Board under Section 10 (b) and (c) of the Act. Atlanta Brick and Tile Company, 83 NLRB 1154 , 1158 ; Pacific Greyhound Lines, 22 NLRB 111 , 125; Pacific Plastic & Mfg. Co., Inc., 68 NLRB 52, 57. Moreover, the Board's decision of June 21 was subsequently modified on the basis of the pendency of the unfair labor practice charges involving the laid-off employees. 80 Standard-Coosa-Thatcher Company, 85 NLRB 1358. 21 Minnesota Mining & Manufacturing Company, 81 NLRB 557. 82 Respondent attacks Corts' integrity as a witness because during one part of his testi- mony, relating to the union application card signed by him, he denied having erased the date and later, after Respondent 's counsel had asked for a continuance in order to summon a handwriting expert, Corts conceded that he might have erased the date. The Respondent argues : Falsus in uno, falsus in omnibus . In the opinion of the undersigned , Respondent has blown the incident in question out of all proportion to its significance . Corte, who .was an active union adherent , was undoubtedly present at the first union meeting and signed a card. The card was apparently dated January 17, 1950, by inadvertence and 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meat to Corts to refrain from union activity unless he wanted to "be on the pan" Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. The General Counsel also cites as a violation of the Act a letter which Frost- holm wrote to Corts on February 27, 1950, in order to let him and the other employees know "how we stand as to the outside union trying to get into the plant." The pertinent portions of this letter are as follows : Our shop is a small one, and its success depends entirely on everybody working together in a friendly spirit. I have inquired around about this out- side union and I have found that wherever they go they try their level best to make trouble between the workers and the management. I know what I am saying when I tell you that we can never make a success of things here at Beaver if this union ever gets in here and conducts itself as it has us every other place it has ever gone. Already in their leaflets they have accused us of making "false promises" to you and the other employees. Maybe some bigger company can still keep going in spite Qf this union, but our little company could never do so under such circumstances. This union teaches men to be mad at those who manage a business. They breed suspicion and they poison the whole atmosphere in a plant. They can't get for their members any more wages than we can afford to pay. But they can preach a lot of misinformation and they can always make big promises. This union did organize the employees at the Seneca Falls Machine Com- pany, another small company but bigger than ours. They called a strike there which lasted one whole year. The employees then threw this union out and formed a union of their own. In the meantime they lost one year's wages. This same union also got in at the Champion Sheet Metal Company over in Courtland. That is another small plant but bigger than Beaver. • After this union had been the bargaining agent for a while, the employees finally got fed up, and now there is no union at Champion. We can't stand a lot of labor trouble and all the expense involved. In spite of our very best efforts, Ed and I lost thousands of dollars last year in this business. We ended the year 1949 in the red. We have got to get out of the red. Your job, and everybody's job, depends on our getting out of the red. This union business isn't helping anybody a bit. [Emphasis supplied.] The General Counsel contends that the letter contains a threat of plant closure in the event of its unionization and that it therefore violates the Act. In the opin- ion of the undersigned, the letter does not contain any threat that the Company will use its economic power to close the plant in order to avoid unionization but is merely a prophecy that labor trouble may aggravate the Company's existing Corts changed the 7 to an 8 by writing over it. Although conceding on voir dire examina- tion by Respondent's counsel that he-might have written over the 7, Corts at first refused to admit that he had erased the date. Later, however, when his examination was con- tinued by the General Counsel he admitted that it was possible that he might have erased the date. From the undersigned's examination of the card it is impossible to determine whether the change in date involved an erasure as well as a writing over of part of the original date. In any event the entire incident is trivial in the opinion of the undersigned. Corts did not deny changing the date Whether the change was accomplished by writing over or erasing the original date is immaterial . He was undoubtedly present at the January 18 meeting and signed an application card. Assuming even that Corts colored his testimony regarding the card signing incident, his testimony otherwise impressed the undersigned as meriting belief. That a trier of the facts may credit certain portions of a witness' testimony and discredit the remainder is well settled. N. L. R. B. v. Universal Camera Corporatson, 179 F. 2d 749 (C. A. 2). BEAVER MACHINE & TOOL CO., INC. 53 financial difficulties so as to make it unable to operate. Under the circumstances, the undersigned regards the letter as protected free speech, not in violation of the Act 88 C. The discrimination On February 13, 1950, Respondent had in its employ 34 production and mainte- nance employees. Between that date and March 19, 1950, it laid off 16 of these employees as follows : February 13-Matthew Klein, Ralmond Mydlinski, and Lester H. Betts ; February 27-John Maxwell and Leon Scheirer ; March 1- Norbert Goike, Fred Goodwin, and Carl Kane; March 14-John Bagan and Philip Wozniczka ; March 17-Theodore Corts, Harold Holmes, Daniel Klapetsky, Francis Strodel, and Thomas Konick; and March 19-Henry Scherr. At the time they were laid off, a number of the employees were told or given the impression they would be recalled as soon as business picked up. However, subsequent to their layoff many of the employees received letters advising them that the future did not look promising and suggesting that they consider "seriously" any offers for employment elsewhere. Asa "job shop" which got its business from the over- flow work of other companies Respondent had, however, experienced similar lull periods in the past during which it had to lay off a number of its employees, and whom it recalled after periods varying from a few days to several months. Of those laid off in February and March 1950, 2, Thomas Konick and Raymond Mydlinski, were rehired on April 3 and April 24, 1950, respectively. The com- plaint alleges that the balance of these employees, except for Lester H. Betts, were discriminatorily denied reinstatement on and after April 26, 1950. The evidence discloses that from August 1950 to January 1951, the Respondent rehired or offered reemployment to all of the employees named in the com- plaint, except Goodwin, Kane, and Wozniczka. It also appears that between May 1, 1950, and August 1950, Respondent hired approximately 14 employees, most of whom had never previously worked for the Company. The General Counsel contends that the hiring of these new employees in preference to the employees named in the complaint was motivated by discriminatory considera- tions. Even after Respondent started recalling some of the laid-off employees, the General Counsel contends it continued to hire new employees in preference to, or in advance of, recalling others of the laid-off employees. The Respond- ent contends that considerations of union membership played no part in its delay in recalling, or in its failure to recall, the laid-off employees. Respondent gave 2 main reasons for its hiring new employees before recalling those laid off in February and March 1950: (1) That most of the work between May and August was of a temporary nature, and it had been informed that most of the laid-off employees had steady employment elsewhere and it did not therefore wish to take them away from steady work merely to offer them temporary employment ; (2) that in some instances, the work which it had after May 1 did not require the skills possessed by some of the laid-off employees. According to the Re- spondent, beginning in August 1950 the increase in business resulting from the Korean war made it possible for it to offer steady employment to most of the laid-off employees. Around the middle of August 1950, it sent out about 35 postal cards to most of these employees, as well as to other employees who had previously worked for the Company, asking them to get in touch with the Company.84 The Company also endeavored to secure new employees from the 83Mylan Sparta Company, Ino., 78 NLRB 1144; Hagy, Harrington c4 Marsh, 74 NLRB 1455. u This card reads as follows : Please call at our office at your earliest convenience. Beaver Machine and Tool Co, Inc. 986209-52-vol. 97-5 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United States Employment Service and from advertisements in newspapers. In September 1950, it increased its workweek from 40 to 50 hours and reintro- duced the night shift which had been discontinued in December 1949. Despite the increase in employment, 3 of the laid-off employees were not recalled because, according to Respondent, it had no need for their particular services. In order to afford a basis for evaluating Respondent's reasons for the delay in recalling most of the laid-off employees and in not recalling several of them, the undersigned has summarized below the evidence with respect to each of the laid-off employees : John Bagan: Bagan was employed by Respondent from March 1941 until he was laid off March 14, 1950. His main work was as a gauge maker and as an inspector of tools. He also did some tool making himself.''-' Around Julie 1950, Bagan received a phone call from Foreman Gaffney asking him to call at the plant.SB When Bagan went into the plant, Gaffney told him that they needed a few more men and showed him some blueprints of jobs that the Company had. Gaffney told Bagan to go into the office and see Simmonds or Frostholm about returning to work. Pagan refused to go into the office and talk to them because "they had my telephone number" and could send for him if they wanted him. Bagan's explanation for his sensitivity about going in to talk to his employers was that he felt offended that they had recalled some new employees ahead of him. It is not clear to whom Bagan was referring. However, it appears that on June 5, Respondent hired Augustus Edlund, a tool and die maker who had previously worked for the Company, to do some tool work. According to Sim- monds, he did not offer any of the laid-off tool and die makers employment when he hired Edlund because he understood that they were employed elsewhere and Edlund's work was of temporary duration.87 However, according to Bagan, he did not secure employment elsewhere until July 5 and was therefore available for work when Edlund was hired's The evidence also discloses that prior to hiring Edlund, Respondent on May 22 hired one Robert TenEyck as an appren- tice tool maker under the GI apprentice training program. Simmonds' explana- tion for hiring TenEyck instead of recalling any of the laid-off tool makers was that the Company had to look to the future and build up a pool of trained tool makers. Bagan was again given an opportunity to return to work in August 1950 when the Company sent him a card, similar to that previously mentioned, asking him to call at the office." Bagan failed to acknowledge the card or call to see the Company and never returned to work. John Maxwell: Maxwell entered Respondent's employ on October 21, 1946, and was laid off February 27, 1950. He did considerable work on the horizontal boring mill, and also did some work on the vertical mill. Respondent sent Maxwell a letter on July 31, 1950, requesting him to get in touch with the Com- pany as they were "beginning to receive a backlog of Horizontal Boring Mill work so that we intend to put on a night shift on a few of our important 3b According to Simmonds , Bagan was a very accurate worker on gauges, but his tool work was too slow I 3a Although Simmonds fixed the date as July, according to Bagan's own testimony this occurred about a month before he had secured employment elsewhere on July 5, 1950 37 The evidence discloses that Edlund worked from June 5 to August 20, and was later recalled on September 18 and worked until December 16. 38 Although Simmonds at first testified that he had information Bagan had secured em- ployment elsewhere within 2 or 3 weeks after he was laid off, he later admitted that he knew Bagan was available for work in May and June. - - . 90 Bagan denied receiving a card, but the undersigned credits Simmonds' testimony that he was one of those who was sent a card in August 1950. BEAVER MACHINE & TOOL CO., INC. . 55 machines." Pursuant to this letter , Maxwell called at the plant on August 7 and was put to work on the night shift operating the horizontal boring mill. The General Counsel contends that Respondent discriminated against Max- well because it hired several new employees before recalling him. Thus, on June 5 , it hired Frank Lewis as a horizontal boring mill operator. Lewis worked until June 16, when the job on which he was working was finished. Likewise, on June 20, Charles Doyle was hired to operate the horizontal boring mill and worked until September 1, when he quit after having spoiled a job. It is not eirtirely clear from the testimony of Simmonds why the Company delayed in recalling Maxwell . One reason apparently was the fact that during the period of his employment Maxwell, who lived in Oswego , had a car pool arrangement with another laid-off employee , Leon Scheirer , and that the Com- pany was unable to offer reemployment to both of them prior to the end of July. Maxwell, during his testimony, denied ever having informed the Com- pany that it was necessary for him to ride with Scheirer in order to continue working. According to Maxwell, although the two frequently traveled together, there were periods when one worked without the other, or when they worked. on different shifts , without any serious impediment to locomotion. Leon Scheirer : Scheirer was employed from February 15, 1946, to February 27, 1950. He was working as a horizontal boring mill operator at the time of his layoff. Around August 1, 1950, Scheirer , after receiving a letter from the Company identical with that sent to Maxwell , to which reference has previ- ously been made, came into the plant and saw Foreman Borst. Borst suggested that Scheirer wait to see Frostholm and Simmonds who were out to lunch, advising him that he thought they wanted him to return to work. Scheirer advised Borst that he couldn't wait as he was working at the Sealright Division plant and that , moreover, he was satisfied with his job there. In January 1951, when the Company again needed some boring mill operators, Borst again called Scheirer at the request of Frostholm and Simmonds and offered him reemploy- ment. Scheirer , who had been receiving $1.65 an hour when he worked for the Company, advised Borst that he was then making $1.88 an hour and that he would not return to Respondent for less than $1.95. Borst, after talking to Simmonds and Frostholm, offered Scheirer $1.95 an hour to return to work and the latter accepted. As previously mentioned , the evidence shows that Respondent had employed Frank Lewis as a boring mill operator between June 5 and June 16, and had employed Charles Doyle between June 20 and September 1, 1950. As in the case of Maxwell, the General Counsel contends that the delay in recalling Scheirer was based on discriminatory motives. Again , as in the case of Max- well, Respondent contends that among its reasons for not recalling Scheirer sooner was the fact that he and Maxwell traveled to work together and that it could not offer them both reemployment until early August 1950. An additional reason, according to Simmonds , for not recalling Scheirer when the other boring mill operators were hired, was the fact that he was then working for a cus- tomer of the Respondent, the Sealright Division of the Oswego Falls corpora- tion, and that it did not wish to antagonize this customer . The dubious nature of this latter reason is evident from the fact that when Scheirer was finally offered reemployment in August , he was still working for the same customer. Norbert Goike : Goike was employed from August 24, 1942, to March 1, 1950. He was classified by Respondent as a general machinist . He spent a good part of his time in assembling a machine known as the " Schroeder machine," for one of the Respondent's customers , the Schroeder Company. He also worked on he milling machine and spent part of his time "cutting stock," which involves 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cutting steel to certain specified lengths without any fabrication thereof. Goike received a postal card in August 1950, similar to those previously mentioned, asking him to call at the office. Goike came in and spoke to Simmonds When he was offered reemployment, he wanted to know if the Company could assure him.steady work for 3 or 4 years as he had several youngsters going through school and college and didn't want to leave his present job unless assured of steady work. Simmonds told him that in a jobbing shop, such as theirs, it was not possible to guarantee steady work over a period of 3 years. Goike was unwilling to return to work. On May 1, 1950, Respondent hired Bertie Augustine, who according to Sim- monds was a "kind of a laborer," to cut stock and help assemble the Schroeder machine. Augustine worked until May 19, 1950, when he quit because the work was too heavy. Simmonds conceded that Goike could have done this work but contended that the work was only expected to be of short duration and he didn't recall Goike because he had heard from the latter's brother, who was also employed by the Company, that Goike had a permanent job elsewhere. The General Counsel contends that Respondent's delay in offering Goike reemploy- ment was discriminatorily motivated, calling attention to Simmonds' testimony in the representation hearing that if the Company got additional orders on the Schroeder machine it would recall a number of the laid-off employees. Al- though Simmonds conceded that the Company had secured additional orders on the Schroeder machine subsequent to the representation hearing, he claimed that the volume of such work did not justify recalling some of the laid-off employees. The evidence discloses that work on the Schroeder machine con- tinued, on and off, until February 1951. The General Counsel also refers to the fact that on June 19 Respondent hired a new employee, Lawrence Young, to work on the engine lathe, work which Goike was qualified to do. Although Simmonds conceded that Goike could have operated the lathe, he claimed that Goike was more expert on the milling ma- chine than on the engine lathe. Moreover, Respondent felt that it could not offer him steady employment at that time and did not wish to take him away from a steady job. In this connection, it may be noted that although Young was allegedly hired on a temporary basis, he continued to work until October 13, when he was laid off for absenteeism. Francis Strodel: Strodel was employed from October 3, 1944, to March 17, 1950. He was a tool maker and also did some die work. He received a card from the Company in August 1950, and came in to see Frostholm who offered him his job back. Strodel advised Frostholm that he would not return unless he received an increase from $1.75 to $1.85 an hour, and the 2-week vacation that he would have received if he had not been laid off. Frostholm agreed to these conditions and Strodel informed him that he would let him know about coming back. A week later he telephoned Frostholm and said he wanted to be paid for the Labor Day holiday if he returned to work and also wanted to get his old bench back. Frostholm agreed to give him the Labor Day holiday but re- fused to accede to his request that he be given back his old bench, for the reason another employee was working on -it. Strodel told Frostholm he would let him know about returning but never informed him of his willingness to come back. As evidence of discrimination against Strodel, the General Counsel calls attention to the fact that Respondent on June 5, 1950, hired Augustus Edlund as a tool maker. As previously mentioned in connection with Bagan's case, Simmonds testified that he did not recall any of the tool makers at the time he A BEAVER MACHINE & TOOL CO., INC. 57 hired Edlund because he understood they had steady employment elsewhere" and because the work he had at that time was temporary. Daniel Klapetsky: Klapetsky was employed from June 26, 1941, to March 17, 1950. He was classified by Respondent as a die maker and also did tool work. Klapetsky was notified by postal card in August 1950 to call at the office, at the same time when a number of other employees were sent similar postal cards. Word was also sent to him around the same time through his father. However, Klapetsky, who Respondent had been informed had gone to work for the Easy Washer Company a few days after his layoff, did not respond to any of these communications, No die makers had been employed by Respondent prior to the offer to Klapet- sky in August 1950. However, several tool makers were employed during June." As previously indicated, Simmonds claimed that he did not recall any of the tool makers prior to August because of the temporary nature of the work and his understanding that they had steady employment elsewhere. Henry Scherr: Scherr, who was employed from February 5, 1943, until March 19, 1950, was a tool maker. He received a postal card to call at the office in August 1950, and came in to see Frostholnl who offered him his job back. Scherr asked Frostholm if he would receive his 2 weeks' vacation if he returned to work and the latter acceded to this request. Scherr informed Frostholnl that he would think it over and let him know. He later informed Frostholm that he was going to California because of the illness of his daughter. The General Counsel makes a similar argument regarding the delay in recall- ing Scherr to that made with regard to the other tool makers. Respondent's explanation for the delay is the same as that with respect to the other tool makers. Theodore Corts: Corts was employed by Respondent from February 8, 1943, to March 17, 1950. He worked in the toolroom, most of his work before his layoff being on the jig bore machine. However, he also operated a milling machine and engine lathe during the period of his employment. In August, he went to see Frostholm after his wife had received a phone call from the Company. Frostholm told him that there was quite a lot of business at the time and that the Company needed young men like him who could take over supervision when the older men retired. Corts questioned Frostholm's good faith in recalling him, stating that he thought he had been laid off because of union activity. Frostholm assured him that this was not the case and that he wanted Corts to come back to work.42 Corts told Frostholm that he would not come back at his old rate of $1.95 an hour but Frostholm indicated that this would not be an obstacle, stating that he would discuss an increase with Simmonds. Corts told Frostholm he would let him know of his decision to return. The following week Corts advised Frostholm that he had decided to stay with his present employer since it was a union shop. As in the case of the other employees, the General Counsel contends that Respondent delayed in recalling Corts and hired new employees to perform 40 According to Strodel's testimony, he secured employment at the Easy Washer Company the day after his layoff and informed Borst of this fact when he went back for his tools. 41 As previously mentioned, Edlund was employed from June 5 to August 20. In addition, H. L Morhiser worked as a tool maker from June 16 until he left voluntarily on November 17; John Buddle worked from June 19 to June 22, and was discharged because of unsatis- factory work ; and Joseph Corso, an inexperienced tool maker, worked from June 19 to June 30. 42 The above findings are based on Corts' own testimony. Although a less frank person might have tried to put the Company in a less favorable light, Corts made no effort to conceal the fact that Frostholm was cordial to him and made a definite offer to reinstate him. 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work that he was capable of doing. Thus the General Counsel points out that Respondent hired George Schray on June 25 as a jig bore operator, Schray being discharged on July 12 because his work was unsatisfactory. According to Sim- monds, there was only a little of this work, most of it being done by the tool makers, and that he understood Corts had permanent employment elsewhere. Matthew Klein: Klein was employed from June 9, 1943, to February 13, 1950, and worked as a turret lathe operator. He was not sent a card in August 1950, when Respondent was circularizing most of its laid-off employees. He worked at several odd jobs after being laid off and visited the plant from time to time. Respondent never sent for Klein but finally rehired him on October 3, 1950, after he had taken the initiative in seeking reemployment i3 The evidence discloses that on August 13, 1950, Respondent hired Leigh VanVliet to operate a turret lathe. Simmonds testified that Klein was not rehired at that time because VanVliet was hired to work on the No. 5 lathe, which would be too big for Klein who, was only slightly over 5 feet in height. Klein himself testified that he usually worked on the smaller No. 3 lathe, and that the No. 5 lathe was too heavy for him to operate for any extended period On August 28, Respondent hired two women, Martha Golazewska and Helen McGuire, and on September 4, a man, Philip Squadrito, to work on the No. 3 turret lathe. McGuire was a former employee having worked during the war. Squadrito was also a former employee who had been discharged in 1945 for drinking. Simmonds' explanation for not recalling Klein to do this work was somewhat confused. At one point he testified that by August there was plenty of work, and that employees were being called back on a permanent basis. His explanation for not recalling Klein was that the Company "just . . . didn't get to his name."_ However, at a later point in his testimony, when asked why Squadrito was hired on September 4 rather than Klein, Simmonds testified that they "[d]idn't know how long this job was going to last." Harold Holmes : Holmes was employed from February 8, 1940, to March 17, 1950. His major work was that of a die maker but he also did some tool work when there wasn't any die work available. During December 1950 Holmes cane in to apply for employment and was reinstated on December 14, 1950. As previously mentioned, on June 5, 1950, Respondent hired Augustus Edlund, a tool and die maker. Simmonds' explanation for not rehiring Holmes was somewhat confused and lacking in consistency. At first he gave as his reason for not recalling any of the tool makers, in preference to Edlund, the fact that as far as he knew they were all employed elsewhere at the time When asked if he knew that Holmes had been out of work for 2 or 3 months, Simmonds admit- ted that he did. He was then asked why he did not offer Holmes the job -,which had been offered to Edlund, and Simmonds replied: "Because it was die work and Holmes does not like die work." However, in his earlier testimony describing Holmes' duties Simmonds testified : "Harold Holmes is a good tool maker, but he majors in die work. He likes die work. He worked almost continuously on dies." On August 28, Respondent hired Harvey Osborne, a die maker, who worked on orders for trim dies until October 10, when he left. Simmonds' explanation for not recalling Holmes for this work was that it was a temporary job of only a few weeks. At another point in his testimony, however, Simmonds testified that employees hired after August were hired on a permanent basis and, in Osborne's case, it appears that his work lasted for more than a few weeks. 43 Klein testified that he was at the office of the United States Employment Service when a call came in from the Company for a turret lathe operator. He telephoned Frosthoim and, after being referred to Borst, was reinstated. BEAVER MACHINE & TOOL CO., INC. 59 Carl Kane: Kane was employed from June 1, 1949, to March 1, 1950, and worked as a sweeper. He was never offered reemployment . On May 1, 1950, Respondent hired Bertie Augustine as a laborer . At a later date Respondent also hired Charles Del Vecchio to do sweeping . Simmonds' explanation for not recalling Kane to do either of these jobs was that he had been informed by Kane's father-in-law, Matthew Klein, that Kane had a good job elsewhere and that he liked it. According to Simmonds , he did not think that Kane's sweeping job, which paid only 95 cents an hour , was one to which he would particularly care to return. Fred Goodwra : Goodwin was employed from January 23, 1942, to March 1, 1950. During most of his employment Goodwin drove a truck, but during the last year when trucking work had fallen off, he spent part of his time helping in the tool crib. He was never offered reemployment after being laid off. According to Simmonds, the Company never hired a truck driver after it laid off Goodwin Whenever there was any trucking work to do one of the other employees would help out. Part of the time one of the mechanics , Walter Dorozsko , drove the truck . Later on the new sweeper, Del Vecchio, drove the truck when it was necessary. Because of the type of business which Respondent was doing during this period, the customers would send for most of the work in their own trucks. According to Simmons , Foreman Gaffney had asked Goodwin during the period of his employment to do work inside the shop such as sweeping and cutting stock when he was not occupied driving the truck and that the latter had refused . Apparently, this was one of the reasons why Goodwin was not recalled . Goodwin denied that any request had been made for him to do work in the shop with which he had not complied . According to Goodwin, when he was not working on the truck he worked in the tool crib . Goodwin also testified that a considerable time prior to his layoff he had been asked to cut stock when trucking was slow and had complied with this request but that the man doing this work objected because there wasn't enough work for both of them . Although Gaffney purported to corroborate Simmonds' testimony regarding the fact that Goodwin had refused to do other work , the undersigned found his testimony in this respect unconvincing . From all the testimony on this point and from his observation of Goodwin's meek demeanor, the under- signed is satisfied that he never refused to do any work to which he had been assigned. Philip Wozniczka : Wozniczka was employed from June 30, 1944, to March 14, 1950. Prior to his layoff most of his work was as a jig bore operator. He also operated a drill press and milling machine. Wozniczka was never offered reemployment. According to Simmonds , the Company never had sufficient jig bore work to warrant rehiring Wozniczka . George Schray, who was hired on June 25, did some jig bore work but also operated a horizontal boring mill on which, ac- cording to Simmonds , Wozniczka had no experience . No one was hired as a jig bore operator after September 1950. When Holmes was rehired on De- cember 14, he did whatever jig bore work there was . Although several drill press and milling machine operators were hired during September and October, Wozniczka was not offered any of this work because , according to Simmonds, Wozniczka was a toolman receiving $1.45 an hour while this was less skilled, quantity production work, which paid only $1 an hour. Simmonds also testified that the Company was aware that Wozniczka had secured steady employment at the General Electric Company within a short time after his layoff. 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Conclusion In order to establish a violation of Section 8 (a) (3) of the Act it is neces- sary to find (a) that Respondent knew or suspected the 13 laid-off employees, or some of them, of being members of the Union, and (b) that Respondent delayed the recall of these men or failed to recall them because of that reason. With respect to knowledge of union membership, the General Counsel argues that the Company was aware that all the laid-off men were union members because at the representation hearing in April 1950 the Union was insisting these men were entitled to vote in the election and that it is unlikely the Union would have taken such a position unless the men were union members. In the opinion of the undersigned, this argument proves too much. Although it would be reasonable to assume from the Union's position that a majority of the men were union members, it does not necessarily follow that all of them were merely because the Union took the same position with respect to all of them- There was no reasonable basis on which the Union could have made any dis- tinction among the men since all of the laid-off men were in substantially the same position. Either all of them were temporarily laid off and entitled to vote, or none of them were entitled to vote. The Union obviously took a posi- tion out of which it could get the maximum benefit, but it does not follow there- from the Respondent would necessarily assume that all the men were union members. The fact of the matter is that one of the employees, Harold Holmes, was not a union member. As further evidence of the Company's knowledge of union membership the General Counsel cites Frostholm's testimony that he had heard about the Union in the plant through the "grapevine," and Corts' testimony that Harvey had informed him someone had been "running informa- tion into the office" about the Union. In the opinion of the undersigned the testimony cited by the General Counsel fails to establish-Respondent's knowl- edge of union membership as to all the laid-off employees or as to any particular individuals among them. The General Counsel also cites the charge which the Union filed on May 17, 1950, as giving Respondent reason to believe that some of the laid-off employees were union members. Although the charge un- doubtedly must have caused Respondent to believe that some of the employees were union members, since the charge does not specifically name any of the employees it can give rise to no inference that Respondent suspected any par- ticular employee of belonging to the Union. The record does, however, establish knowledge of union membership with respect to some of the laid-off employees. Thus from Corts' talk with Gaffney about the Union and Gaffney's tipping him off not to talk about the Union, it is reasonable to assume that Respondent knew or suspected Corts of being a union member. From Frostholm's letter of February 27, 1950, to Corts, it seems evident that he regarded, him as a leading union supporter. Further evi- dence of Respondent's knowledge of Corts' union activity may be found in Har- vey's statement to Corts in April that he would not have been laid off if he had not "monkeyed around with the Union." That Respondent suspected Wozniczka of being a union member may be inferred from his conversation with Harvey in April 1950 in which the latter chided Wozniczka about "that Union-you and Ted Corts and that Union." A similar inference exists in the case of Fred Goodwin who testified without contradiction that in a conversation with Gaffney, following the second union meeting on February 1, he told the latter he had signed a union card. Although it may be assumed that Respondent also suspected a number of the other laid-off employees of being union members, the BEAVER MACHINE & TOOL CO., INC. 61 record does not establish which particular employees are includable in this category. The more important question, however, is whether considerations of union membership did in fact motivate the Respondent in not recalling some of the laid-off men or in delaying the recall of others. In support of his contention that union membership was a motivating factor the General Counsel cites (a) Respondent's antiunion animus as evidenced by several incidents immediately preceding and following the layoffs, and (b) the unconvincing nature of Re- spondent's explanations regarding the recall of some of the laid-off employees. Among the incidents purporting to evidence antiunion animus the General Coun- sel cites Frostholm's letter of February 27, 1950, to Corts, a statement by Fore- man Gaffney to Goodwin that the Company would not have a union because "they'd go broke," and Harvey's statement to Corts and Wozniczka in April that Corts and several others had been laid off because of the Union. Of the incidents cited by the General Counsel the only one which has any significant bearing on Respondent's motives with respect to the laid-off employees is that involving Harvey's statement as to why some of the employees were laid off. Although this statement relates to Respondent's motives in laying off the em- ployees, which is not alleged in the complaint to have been discriminatory, the General Counsel contends that the circumstances surrounding the layoff of em- ployees are relevant as reflecting on Respondent's motives with respect to re- calling them .4 Assuming that evidence of antiunion motivation in the layoff process is relevant in this proceeding, such motivation cannot, in the opinion of the undersigned, be established by Harvey's statement to Corts and Wozniczka. If that statement has any efficacy in this connection, it is as an admission by Respondent regarding its motive in laying off the 13 employees. However, while as previously indicated Harvey's coercive statements are chargeable to Respondent as violations of Section 8 (a) (1) of the Act, they cannot be ac- cepted as admissions binding on Respondent since he did not occupy such a po- sition of agency with Respondent as to authorize him to make binding admis- sions in its behalf regarding the laid-off employees.46 they might wish to accept the so-called temporary work. Although Simmonds explanations for not recalling the laid-off men, the General Counsel is on some- what sounder ground. In a number of respects Respondent's story, given mainly through Simmonds, was not convincing. The main reason for not at- tempting to recall most of the laid-off men prior to August was Simmonds' alleged understanding that they were employed elsewhere and his desire not to take them away from steady employment merely to offer them what appeared to be temporary work. It is strange, however, that Simmonds' solicitude for his laid- off employees did not extend to at least discussing with them the possibility that they might wish to accept the so-called temporary work. Although Simmonds claimed to have knowledge that all the men were employed elsewhere, this was based in some instances on hearsay. In at least two cases, Ba,gan's and Holmes', Simmonds admitted that he was aware they were out of work when he offered work to others which they were qualified to do., Instead he hired learners and Inexperienced help, ostensibly to build up a reservoir of manpower, at a time when trained manpower was permitted to remain idle. Although allegedly unwilling to recall the laid-off men till it was able to offer them steady employment, when 44 The General Counsel stated at the hearing that although there was a suspicion that discrimination also entered into the layoff of the employees he was unable to prove it and was therefore not claiming it. - 45 Restatement, Agency, Sec. 286b; 4 Wigmore Sec. 1078. 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Goike asked for assurance of such employment at the time of his recall in August, Respondent was unwilling to give him any such assurance. In the case of Klein, Respondent did not rehire him until after he took the initiative in applying in October, although it had in the meantime hired several other employees, including one it had fired for drinking, to do work he was capable of doing, and had inserted advertisements in the newspapers and sought referrals from the United States Employment Service. The alleged reason for not recalling him was that they just hadn't gotten to his name yet. This explanation was varied with another that they didn't know how long the work was going to last, although Simmonds had previously testified that all employees hired after August were hired with the expectation of steady employment. Similarly unconvincing was the explana- tion in Scheirer's case that it had not offered him employment sooner because he was employed by a customer whom Respondent did not wish to antagonize, although when he was later offered employment he was working for the same customer. Equally unconvincing was the alternative or concomitant reason for not recalling him, as well as Maxwell, namely, that it believed that the two had to work together and that it did Dot have work for both of them before August. Although Respondent's explanations were unconvincing in a number of respects and give rise to some suspicion as to Respondent's motives, the question arises whether they are sufficient to support an affirmative inference that the union membership, actual or suspected, was a motivating factor in not recalling or in delaying the recall of the laid-off men. An examination of the contrary evidence reveals a number of circumstances which tend to militate against such a conclu- ,sion. Thus, despite its alleged hostility to the Union, Respondent retained in its employ at least two employees whom it suspected of being instrumental in bring- ing the Union into the plant. According to Corts' credited testimony, the names of Robert Schultz and Michael Macko were mentioned by Harvey in his con- versation with Corts during April as being among those whom the Company believed to be responsible for starting the Union.."e Yet neither Macko nor Schultz was laid off during the February-March layoffs. Similarly significant is the fact that two of the laid-off union employees, Robert Mydlinski and Thomas Konick, were recalled in April 1950, prior to the filing of any charge in this proceeding and consequently ante litem motam. Likewise tending to disprove antiunion animus toward the laid-off employees is the fact that 10 out of the remaining 13 named in the complaint were rehired or offered reemployment by Respondent. Of the former group, 8 were offered employment prior to or during August 1950, at a time not too far removed from the period of the layoffs." The General Counsel suggests that this action was taken under impetus of the charge filed against Respondent on May 17. 1950. It is significant, however, that after the layoff Respondent hired only 2 new em- ployees prior to the filing of the charge. Most of the'hiring subsequent to the layoff began in June. Presumably, if it was Respondent's desire to avoid potential back-pay liability under the 8 (a) (3) charge filed by the Union which motivated it in rehiring the laid-off employees, it would have begun such hiring in June rather than waiting until August. Moreover, the attitude which it displayed toward the laid-off men when it began recalling them evidenced a genuine desire to put them back to work rather than merely a pro forma desire to avoid any liability 49 Kowalski verified the fact that Macko was one of those responsible for his organizing the plant. 47 Bagan was offered reinstatement In June 1950 ; Maxwell and Scheirer were offered rein- statement by identical letters dated July 31, 1950 ; Golke, Strodel , Rlapetsky, Scherr, and Corte were called or sent post cards during August 1950. BEAVER MACHINE & TOOL CO., INC. 63 for a violation of the Act. Thus, in the case of Corts, of whose union membership Respondent was unquestionably aware, Frostholm assured him that there was "plenty of business to keep him busy" and offered him an increase in the rate which he had been receiving when he was laid off. In the case of Francis Strodel, Frostholm went out of his way to induce Strodel to return, indicating a willing- ness to meet Strodel's conditions of a wage increase, 2 weeks' paid vacation, and it paid Labor Day holiday Strodel's expanding of his conditions to include insistence on being given back his old bench finally exhausted Frostholm's patience. Henry Scherr was offered 2 weeks' paid vacation if he would return but turned down the offer because he was going to California. Although Leon Scheirer had indicated his unwillingness to return in August, Respondent again called him in January 1951 and offered him a wage increase to induce him to return. It is significant that Harold Holmes, who was reinstated only after he made application in December 1950, was not even a union member and, accord- ing to Frostholm's uncontradicted testimony, had expressed his opposition to the Union during the period it was organizing. Of the men who were never offered reinstatement, there is no evidence that the Respondent was aware that Kane was a union, member. Although the evidence discloses that it was aware of Goodwin's union membership, it does not appear that he was particularly active in the Union. Goodwin was not a skilled employee and after 10 years of employment he was one of Respondent's lowest paid employees.- Although Respondent could probably have found a place for him in its organization when business began to improve, it may well have felt that his past performance did not demonstrate such promise as to warrant his being recalled In any event, there is no affirmative evidence of antiunion motive in his case. With respect to Wozniczka, he was one of the active union employees and Respondent undoubtedly knew or suspected him of such activity. However, its reasons for not recalling him were not demonstrably false or unreasonable. It is significant that Corts who was equally active in the Union was offered reinstatement. It is also not without significance that both Corts and Strodel when they were recalled were assured by Frostholm, despite the contrary opinion expressed by them, that the men's union activity had nothing to do with their layoff. Although, as previously indicated, some of Respondent's explanations were not wholly satisfactory and give rise to a certain amount of suspicion, the under- signed is not convinced from the record as a whole that the General Counsel has -established by a fair preponderance of the evidence that the Respondent's failure to recall, or its delay in recalling, any of the laid-off men was motivated by the fact that they were members of the Union. It will accordingly be recommended that the complaint be dismissed insofar as it alleges the discriminatory refusal to reinstate the 13 employees named therein. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III, above, occurring in connection with the operations of the Respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and such of them as have been found to be unfair labor practices tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that the Respondent has engaged in certain unfair labor practices, the undersigned will recommend that the Respondent cease and desist 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that 'the Respondent interfered with the administration of the Beaver Employees' Club and contributed support thereto. It will therefore be recommended that the Respondent cease and desist from interfering with or supporting the Beaver Employees' Club and from recognizing it unless and until it is certified by the Board. Such action is recommended despite the fact that the Club is no longer functioning since Respondent has never officially with- drawn its recognition and because of the possibility that the Club may be revived 46 It has also been found that the Respondent has refused to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit. It will therefore be reconmended that the Respondent, upon request, bargain collectively with the Union. It has also been found that the Respondent interfered with, restrained, and coerced its employees . It will therefore be recommended that the Respondent cease and desist therefrom. It has further been found that the General Counsel failed to sustain the burden of proof with respect to the allegation of the complaint alleging the discriminatory refusal to reinstate 13 employees named therein. It will therefore be recommended that the complaint be dismissed as to said allegation. Upon the foregoing findings of fact, and upon the entire record in the case, the undersigned makes the following: - - CONCLUSIONS OF LAW 1. United Steelworkers of America, C. I. 0., and Beaver Employees' Club are labor organizations within the meaning of Section 2 (5) of the Act. 2. By, interfering with and assisting Beaver Employees ' Club and by con- tributing support thereto , the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (2) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (1) of'the Act. 4. All production and maintenance employees of the Respondent at its Syra- cuse, New York, plant, exclusive of office and clerical employees and supervisors as defined in the Act , constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 5. On or about February 2, 1950, and at all times thereafter United Steel- workers of America, C. I. 0., has been the exclusive representative of all employees in the above unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 6. By refusing on or about February 2, 1950, and at all times thereafter to bargain collectively with the United Steelworkers of America, C. I. 0., as the exclusive representative of all of its employees in the aforesaid appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 8. The Respondent has not engaged in unfair labor practices within the meaning of Section 8 (a) (3) of the Act by refusing to reinstate Matthew Klein, 48 Fogel Refrigerator Co , 82 NLRB 1302 BINGHAM-HERBRAND CORPORATION 65 Leon Scheirer, Norbert A. Goike, Fred Goodwin, Carl Kane, Philip Wozniczka, John Maxwell , John Bagan, Theodore Corts, Harold Holmes, Daniel Kapetsky, Henry Scherr, and Francis Strode'. [Recommended Order omitted from publication in this volume.] BINGHAM -HERBRAND CORPORATION ( HERBRAND DIVISION) and INTER- NATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, LOCAL No. 914, CIO, PETITIONER. Case No. 8-RC-1346. November 20, 1951 Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Charles A. Fleming, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Reynolds, and Styles]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain em- ployees of the Employer.' 3. The Petitioner seeks to add all timekeepers and factory clericals to the unit of production and maintenance employees which it cur- rently represents 2 The Employer contends that its existing contract with the Petitioner, covering the production and maintenance em- ployees and specifically excluding "clerical workers," operates as a bar to such request. We do not agree. It is apparent that the con- tract does not cover the employees sought to be represented.3 As the Board has previously held, the express exclusion of certain em ployees from the coverage of a contract is not equivalent to an agree- ment by the contracting union not to seek to represent such employees as part of the more comprehensive unit at some future time.4 We 1 The names of the Employer and Petitioner appear in the caption as amended at the hearing 2 In 1941, the Petitioner was certified as the bargaining representative of the Employer's production and maintenance employees and since then has continued to represent them. 8 Although the established unit does not expressly exclude timekeepers and factory clerical employees, it appears that the parties regarded the excluded category of "clerical workers" as embracing timekeepers and factory clerical employees. 4 Philadelphia Company and Associated Companies , 84 NLRB 115; Burd Piston Ring Company, 75 NLRB 879 . Cf. Briggs Indiana Corporation, 63 NLRB 1270. 97 NLRB No. 12.