Syracuse Foundry, Inc.

402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD indefinite period of time. It is appropriate to order Respondents, therefore, to make him whole for the damage they have done Lamantia by paying to him such back pay as he would have earned but for the discrimination they caused against him. It is appropriate also to direct Respondents to notify Gammino that they withdraw all objections to the employment of John Lamantia by Gammino. Such notification, plus making him whole, will serve to correct the harm (lone Lamantia when Respondents caused his discharge. Such notification will not cause the violation of any law of the State of Rhode Island. Whether there- after Gammino chooses to reinstate Lamantia and employ him along with its other engineers who lack State licenses, or chooses to insist that all its operators get licenses upon pain of discharge, is a matter for Gammino to decide. In any case ordering Respondents to make amends for their action against Lamantia causes no violation of State law. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following : CONCLUSIONS OF LAW 1. M. A. Gammino Construction Co. is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. The Respondent Union, Local 57, International Union of Operating Engi- neers, is a labor organization within the meaning of Section 2 (5) of the Act. Respondent John White is its agent within the meaning of Section 8 (b) of the Act. 3. By continuing to enforce and give effect to the illegal union-security clauses in the 1946 contract with M. A. Gammino Construction Co and the working rules, Respondents, and each of them, have since February 5, 1950, engaged in and are engaging in unfair labor practices within the meaning of Section 8 (b) (2) and Section 8 (b) (1) (A) of the Act. 4. By operating the present hiring-hall referral-card system, which requires nonmembers of Respondent Local to obtain referral cards from Respondent Local and pay it weekly working assessments in order to work for Gammino, Respondents, and each of them, have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (b) (2) and Section 8 (b) (1) (A) of the Act. 5. By causing M. A. Gammino Construction Co. to discriminate against John Lamantia, an individual, in the hire and tenure of his employment, Respondent Union and Respondent White, and each of them, have engaged in and are en- gaging in unfair labor practices within the meaning of Section 8 (b) (2) and Section 8 (b) (1) (A) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication in this volume.] SYRACUSE FOUNDRY, INC. and INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, CIO. Case No. 3-CA-267. De- cember 11, 1951 Decision and Order On July 11, 1951, Trial Examiner Stephen S. Bean issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- 97 NLRB No. 64. SYRACUSE FOUNDRY, INC. 403 spondent 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 unfair labor practices and I ecommended that these allegations in the complaint-be dismissed. Thereafter, the Respondent and the Union filed exceptions to the Intermediate Report, and the Respondent filed a supporting brief. The Respondent's request for oral argument is hereby denied, as the record, exceptions, and brief, on our opinion, adequately present the issues and the positions of the parties. The Board 1 has reviewed the rulings made by the Trial Examiner at the hearing and finds that -no prejudicial error was committed 2 The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations, with the following additions and modifications : 3 1. We agree with the Trial Examiner that the Respondent com- mitted independent violations of Section 8 (a) (1) of the Act. In support of our finding, we rely, under well-established principles, upon credible evidence of the following conduct on the part of the Respond- ent, as fully detailed in the Intermediate Report : (a) The interrogation as to union activities; on or about February 14, 1950, by President Knaus of employee Maslona; in February 1950, before the election, by. President Knaus of employee Coleman; during the week following the election, by President Knaus of employee Lacona; on the morning of the election, February 21, 1950, by Foreman Przepiora of employee King; "a week or two before the election," by Foreman Fischer of employee Lacona; and on or about February 10, 1950, by Foreman Lostumbo of employee Leon Ploski. 1 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-menvber panel [Members Houston , Murdock and Styles]. 2 The Respondent in its exceptions and brief alleged that the Trial Examiner in his examination of the witnesses exercised bias and prejudice in favor of the General Counsel. We find no merit in this contention . In our opinion , the Trial Examiner's question of the witnesses in the proceeding was entirely proper, pertinent , and impartial , and had as a purpose only the clarification of the issues and the testimony for the record 3 The Intermediate Report contains certain minor errata which do not affect our agree- ment with the Trial Examiner. Accordingly , we note the following corrections : ( 1) Fore- man Samoroy did deny, in effect, that he told Lesczynski when he discharged him that he would have to let him go because Lesczynski had been talking too much about the first union meeting. However, like the Trial Examiner, we credit Lesczynski 's version of what was said at the time of his discharge . ( 2) On July 1 , 1947, Lesczynski was rehired as a coremaker, not as a molder. ( 3) Lesczynski did not "excel" In coremaking , although it appears that he had more experience as a coremaker than as a molder and that he himself believed that he was a better coremaker than a molder. (4) On January 16, 1950, when General Manager Miller saw Smith away from his place of work the second time after 15 minutes , Smith was in the act of procuring rods for his core 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) The threat to shut down the plant if the Union came in: on or about February 1, 1950, by President Knaus to employee Muhlnickel; on or about February 21, 1950, by Foreman Przepiora to employee King; and sometime in February 1950, before the election, by Presi- dent Knaus to employee Coleman. (c) The statement of Foreman Lostumbo to Keith Stevenson on January 14, 1950, when the latter was applying for work, that 4 or 5 fellows might get through because of their union activities, specifying employees Lesczynski, Boncek, Kyanka, and either Maslona or Morgan. (d) The statement of Foreman Lostumbo to employee Vincent Smith on January 16, 1950, after first informing him that he was obliged to fire him for talking "union" too much, that he would keep Smith on the job if Smith would advise him who the union ringleaders were. Although the Trial Examiner found such conduct coercive on other grounds, we disagree with his conclusion that it does not contain a promise of economic benefit, as alleged in the complaint. (e) Foreman Lostumbo's inquiry of employee Sobolewski on or about February 16, 1950, following the distribution of the Union's second circular, whether it was Sobolewski who had brought these circulars into the shop; and upon Sobolewski's denial, his statement that if Sobolewski could find out which of the employees had done so, Lostumbo would discharge them. (f) Foreman Lostumbo's request of employee Leon Ploski on or about February 10, 1950, after first interrogating him as to his knowl- edge of the Union, that he inquire of his father, employee John Ploski, and of employee Sobolewski, respectively, whether each of them knew about the Union ; and his request of Leon Ploski to attend the next union meeting and write down the names of those present. (g) The statement of Foreman Samoroy to employee Muhlnickel 2 days after the election that, "now it was all over, everybody was going to be happy, and he would like to get-would get all the fellows that had been connected with the union. He wanted to do it before but . . . the Old Man wouldn't let him." Accordingly, we find that the Respondent, by engaging in the above- described conduct, has interfered with, restrained, and coerced its employees in the rights guaranteed them in Section 7 of the Act. 2. With respect to the Section 8 (a) (3) allegations in the com- plaint, we are in accord with the Trial Examiner's findings of dis- crimination in the cases of Vincent Smith, Nicholas Lesczynski, and John Lacona, and with his finding that the General Counsel failed to support the alleged violation in the case of Leon Ploski. However, in the Lesczynski case, as the Trial Examiner made no finding that Lesczynski's alleged inefficiency was another reason for his discharge in addition to that of union activities, we deem it un- SYRACUSE, FOUNDRY, INC. 405 necessary to pass upon the Trial Examiner's "dual motive" rationale in his discussion of this case. Upon the basis of the detailed facts found in the Intermediate Report, we conclude that the sole and true reason for Lesczynski's discharge was his known or suspected union affiliation and `activities. Similarly, in the Lacona case, we are in agreement with the Trial Examiner's analysis and conclusion rejecting all of the manifold rea- sons variously'advanced by the Respondent as grounds for the termi- nation of this employee, who was the active promoter and leader of the union movement at the Respondent's plant. In addition, we note a further weakness in the principal reason for the discharge asserted by the Respondent, i. e., that Lacona was discharged because com- plaints against him were made by employee Sobolewski. Sobolewski's testimony, construed in a -light most favorable to the Respondent (although such testimony. was shifting, inconsistent, and subject to much leading on direct examination by the Respondent), was that Lacona "bothered" him daily for a period of 2 or 3 days after the election on February 21, 1950, in an attempt to have Sobolewski attend union meetings,' and that the same solicitations by Lacona took place thereafter at "intervals of maybe 4 or 5 days apart-maybe 4 or 5 times" until sometime within the first 10 days in March 1950, but not after that. Thus; there appears in this defense of the Respondent an unexplained lapse of at least 6 days between the last date Lacona allegedly approached Sobolewski and March 16, 1950, the, date the Respondent finally decided to discharge Lacona, without investigation or warning. Order Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Syracuse Foundry, Inc., Syracuse, New York, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in International Union of Electrical, Radio and Machine Workers, CIO, or any other labor organization of its employees by discriminatorily discharging any of its employees, or.by discriminating in any other manner in regard to their hire or tenure of employment, or any term or condition of employment. (b) Interrogating its employees concerning their union member- ship and activities or the union membership and activities of their fellow employees; threatening to close down its plant if the Union should be successful in establishing bargaining rights; offering its employees economic benefit, to discourage union activities, and to ' The record conclusively shows that no union meetings were scheduled or held after the election of February 21, 1950. 986209-52-vol. 97-27 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD engage in surveillance of the Union's meetings and activities, and in any other manner interfering with, restraining, or coercing its em- ployees in the exercise of the right to self-organization, to form labor organizations, to join or assist International Union of Electrical, Radio and Machine Workers, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in collective bargaining or other mutual aid or pro- tection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act, as guaranteed in Section 7 thereof. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Vincent Smith, Nicholas Lesczynski, and John Lacona full and immediate reinstatement to 'their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges. (b) Make whole Vincent Smith, Nicholas Lesczynski, and John Lacona, in the manner set forth in the section of the Intermediate Report entitled "The Remedy," for any loss of pay each may have suffered as a result of the discrimination against. him. (c) Upon request make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, personnel records and reports, and all other records necessary to analyze the amounts of back pay due and the right of reinstatement under the terms of this Order. (d) Post at its plant in Syracuse, New York, copies of the notice attached hereto as Appendix A.5 Copies• of said notice, to be sup- plied by the Regional Director for the Third Region, shall, after being duly signed by Respondent's representative, be posted by 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Third Region in writing within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint with respect to the alleged discriminatory discharge of Leon Ploski be, and it hereby is, dismissed. " In the event that this Order is enforced by decree of a United States Court of Appeals, there shall be inserted before the words, "A Decision and Order," on this notice, the words, "A Decree of the United States Court of Appeals Enforcing." SYRACUSE FOUNDRY, INC. - 407 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 discourage membership in INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, CIO, or any other labor organization of our employees by discriminatorily discharg- ing any of our employees, or by discriminating in any other man- ner in regard to their hire or tenure of employment, or any term or condition of employment. WE WILL NOT interrogate employees concerning their union membership and activities or the union membership and activities of their fellow employees; threaten'to close down our plant if the Union should be successful, in establishing bargaining rights for our employees; offer our employees economic benefit to discourage union activities, and to engage in surveillance of the Union's meet- ings and activities; or in any other manner interfere with, re- strain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist International Union of Electrical, Radio and Machine Workers, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as author- ized in Section 8 (a) (3) of the Act, as guaranteed in Section 7 thereof. WE WILL offer to the following three parties immediate and full reinstatement to their former or substantially equivalent posi- tions, without prejudice to any seniority or other rights and privi- leges previously enjoyed, and make them whole for, any loss 'of pay suffered as a result of the discrimination : Vincent Smith Nicholas Lesczynski John Lacona All our employees are free to become or remain members of the above-named union or -any other labor organization or to refrain from such association, except to the extent that this right may be affected by an agreement authorized by Section 8 (a) (3) of the Act. We will ndt,discriminate in regard to hire or tenure of employment or any 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD term or condition of employment against any employee, because of membership in or activity on behalf of such labor organization. SYRACUSE FOUNDRY, INC. Employer. .Dated ---------------------- By ---------------------------- (Representative ) ( Title) 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 a charge and amended charges duly filed by International Union of Elec- trical, Radio and Machine Workers, CIO (hereinafter called the Union), the General Counsel of the National Labor Relations Board (hereinafter called the Board), by the Regional Director 9f the Third Region, Buffalo, New York, issued a complaint dated February 28, 1951, against Syracuse Foundry, Inc. (herein- after called Respondent), alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Sections 8 (a) (1) and (3), and 2 (6) and (7) of the National Labor Relations Act, as amended, (hereinafter called the Act) 61 Stat. 136. Copies of the charges, the complaint, notice of hearing, and order rescheduling hearing were duly served upon Respondent. With respect to unfair labor practices, the com- plaint alleged in substance that Respondent had discriminated against certain named employees because of their union membership and activities in violation of Section 8 (a) - (1) and (3) of the Act, and had engaged in independent viola- tions of Section 8 (a) (1) of the Act by specifically enumerated statements and conduct. Respondent in its duly filed answer admitted the jurisdictional facts alleged in the complaint but denied the commission of the alleged unfair labor practices. Pursuant to notice a hearing was held at Syracuse, New York, from May 1 to May 4, 1951, before Stephen S. Bean, the undersigned duly designated, Trial Examiner. All parties were represented and participated in the hearing and were afforded full opportunity to be beard, to examine and cross-examine wit- nesses, and to introduce evidence pertaining to the issues. On the second day of the hearing, the General Counsel's motion to amend, para- graph VII of the complaint by substituting the name "Przepiora" for "Pupera" was allowed without objection. At the conclusion of the hearing, the General Counsel's unopposed motion to conform the pleadings to the proof was granted. Counsel for Respondent made an oral argument. Thereafter, pursuant to leave granted to all parties, both the General Counsel and Respondent, on Jur4e 18 and 19, 1951, respectively, filed briefs which have been considered. Upon the entire record in the case and from my observation of the witnesses, I make the following : FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is a New York corporation maintaining its principal office and place of business in Syracuse, New York, where it is engaged in the manufacture, sale, and distribution of, iron castings and related products. During 1950, Re- spondent purchased raw materials, supplies, and equipment valued in excess of SYRACUSE' FOUNDRY, INC. 409 $400,000, approximately $100,000 of which was purchased outside' the State of New York and shipped directly to Respondent's place of business in New York State. During the same period, Respondent manufactured, sold, and distributed iron castings and related products valued in excess of $1,000,000, of which in excess $10,000 was sold and shipped to customers located outside, tale State of New York or to firms which ship goods outside the State of New York, and sold and shipped in excess of an additional $50,000 to each of the following : The American Locomotive Company, The Carrier Corporation, and General Motors' Corporation. Respondent stipulated to the above facts concerning its business operations. I find that Respondent is engaged in commerce within the meaning of the Act.' IT. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization admitting to membership employees of Respondent. III. THE UNFAIR LABOR PRACTICES A. Chronology of events 1. The Union's organizational effort On or about January 2, 1950, Mr. Harold A. Martin, field representative of the Union, was informed by John Lacona, a molder employed by Respondent acting at the instance of a few employees who were complaining about their piecework prices being cut, that the latter thought Respondent's employees were ready to be organized. A meeting attended by approximately 60 to 70 of Respondent's employees was held at the CIO hall on January 13, 1950. Mr. Martin addressed the employees and membership application cards were distributed, approximately 60 of which were signed. Subsequent meetings were held on January 15, Febru- ary 13, 17, and 20. At the January 15 meeting attended by about 20 employees, Lacona was elected temporary president and employee Ray Farmer, no longer in the employ of Respondent, was elected temporary vice president. On January 24, 1950, Martin wrote Harry L. Miller, vice president and general manager of Respondent, that the Union had been designated and selected by Respondent's employees as their collective bargaining representative and re- quested recognition. On January 31, 1950, Miller wrote Martin requesting further information before he could determine whether or not the Union should be recognized. On February 10, 1950, Respondent and the Union entered into an agreement for a consent election. The election was held on February 21, 1950. The Union failed to receive a majority of the votes cast. During the election campaign the Union distributed six circulars among Re- spondent's employees and Respondent delivered two letters to its employees and Mr. Miller called all the coremakers into his office for two meetings between February 1 and February 21. B. Respondent's knowledge of its employees' union activities General Manager Miller testified that as early as January 16, 1950, there were rumors of the Union coming into the plant, and Foreman Przepiora testified that ' American Locomotive Company, 67 NLRB 1123; Carrier Corporation, 69 NLRB 243; General Motors Corporation, Frigidaire Division, 88 NLRB 450; Hollow Tree Lumber Company, 91 NLRB 635. 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD during the period from January 3 to February 21, 1950, he was aware of union activity. Gene Norman Knaus, president of Respondent, testified that he had had some idea that the union leaders were this group he heard testify at the hearing. Respondent's attorney wrote the Board's Regional Office that Respondent was aware and had been informed of the names of the union leaders within its plant but denied it had discharged anyone before or since the election for union activities. C. Respondent's attitude toward unionization of its plant Respondent informed its employees in writing that it was opposed to a union, that the purpose of trying to get them to join the Union was to have someone else talk for them and get them to obey someone else's rules and pay them dues and assessments, and that unions don't pay wages but do sometimes force strikes by unreasonable demands. D. Alleged interference, restraint, and coercion 1. Findings of Fact Respondent wrote its employees that everybody loses when strikes that are sometimes forced by the unreasonable demands of unions occur, that Respondent and the Union could stand such losses and queried its employees as to whether they could stand them. It pointed out (in apparent response to the Union's assertions that organization would result in securing a fair day's pay, guarantees against cuts in piecework prices, payment of time and a half for over 8 hours, seniority rights, a week's vacation for 1 year's service and 2 weeks' vacation for 5 years' service, 6 paid holidays, double time for working holidays, sick, acci- dent, and hospitalization insurance, and an old-age retirement plan) that it could not compete with out-of-town foundries if its employees should have short weeks and long pay, that it did not want to follow the experience of other foundries- where because of labor disputes or other reasons, 2 closed and 2 were work- ing short weeks, that there were about 15,000 unemployed in Syracuse, that it appeared that Respondent had work for every man in the foundry for all of 1950 and 1951 unless it had to raise prices which would mean loss of orders, and that it was working with its customers in order to be allowed to keep its employees at work at all times. Respondent asked its employees to look. at Globe Malleable Foundry, now empty-at one time a successful foundry-and- to inquire of their fellow employees who had worked there, what closed it. Re- spondent referred to the fact that the Pierce, Butler and Pierce Foundry was also closed and asked its employees, "why" and stated it knew that by voting "No" against a union its employees' best interests would be served. About a week before the election, Mr. Miller talked in his office to a group of about 10 coremakers of whom John Maslona was one. He stated that there was a lot of work coming in and that it was up to the employees whether Respondent got it or not. After informing his audience that new machinery was to be in- stalled, Miller said that some of the fellows in the group were not satisfied, that they thought they could make more money elsewhere, and asked such employees why they did not leave and let the other men who were satisfied remain. Miller added, "I've got enough money to retire. I don't have to go through with this. Some of you people cannot afford to retire." After this meeting, President Knaus of Respondent asked Maslona if he knew anything about these rumors he heard around. On January 14, 1950, Sam Lostumbo, who Miller testified had authority to hire and fire and was in charge of the core room until February 10, SYRACUSE FOUNDRY, INC. •411 1951, and whom I find to have been a supervisory employee , was introduced by employee John Lacona to Keith Stevenson , an applicant for work . At that time in the presence of Lacona, who was elected temporary president of the Union the following evening and of whose interest in the Union Lostumbo was then unaware, the latter said to Stevenson that 4 or 5 fellows might get through because of their union activities and mentioned employees Lesczynski , Boncek, Kyanka, and either Maslona or Morgan. During the month of February , President Knaus spoke twice to Phillip Coleman, one of a number of colored employees of Respondent . Coleman had been elected temporary treasurer of the Union on January 15, 1950. On the first occasion Knaus asked Coleman , whom he had befriended by a loan and a con- tribution, if he knew anything about the Union . Upon Coleman's denying any knowledge, Mr. Knaus told Coleman to see the boys, to think it over , because if the Union came in he would shut down . A day or two later , Knaus asked Cole- man if he had talked with the boys and the latter replied that he had not. On the morning of the election, George Przepiora , millwright foreman, stip- ulated to be a supervisory employee , asked employee Robert King if he were going to vote and which way he was going to vote. When King replied that he had not made up his mind, Przepiora replied that if the Union got into the shop, the employees would be out of work and would not have any work because Respondent would close the shop. After the Union 's second circular had been distributed , Foreman Lostumbo asked employee Edward Sobolewski if he were one of the fellows that had brought it into the shop and if Sobolewski had brought it in and stated that if Sobolewski could find out who had done so, he would discharge those men who brought it in. About February 1, President Knaus asked employee Robert Muhlnickel who had been employed on January 25, 1950, about his work. When Muhlnickel complained about being charged for scrap that was not occasioned by his fault, Knaus said that he would straighten this out and that Muhlnickel would be happy. Knaus then said that he knew Muhlnickel had come from working for International Harvester and that if he wanted a union he should go to work where there was one, that if the men in the shop wanted a union or organized one, Knaus would close out, sell the place out, because he did not want the headaches of a union. Two days after the election , Walter Samoroy, plant superintendent, whom I find to be a supervisory employee within the meaning of the Act , told Muhlnickel that now it is all over he would like to get all the fellows that had been connected with the Union, that he wanted to do it before but the "old man" would not let him. On January 16, 1950, employee Vincent Smith , a coremaker, was discharged by Foreman Lostumbo who said that he was obliged to fire him for talking union too much. Lostumbo said he had Smith's pay and while starting to take it out of his pocket, stated that if Smith could tell him who were the ringleaders of the Union he would try to hold his job for him. Upon Smith's asserting that he did not know and that even if he did know, he would not tell Lostumbo, the latter handed Smith his pay and completed his discharge. A week or two before the election , Frank Fischer, foreman of floor molders, who had had authority responsibly to direct the employees in Respondent's molding room and who could effectively recommend their discharge , stipulated to be and who I find was a supervisory employee within the meaning of the Act, asked employee Lacona if he had heard anything about the Union. Re- ceiving an affirmative reply, Fischer remarked that a union might be good and might not and while walking away said that he did not want to know anything. 412. DECISIONS OF NATIONAL LABOR RELATIONS BOARD Within a week after the election , President Knaus stated to Lacona that he had heard Lacona was a leader of "this thing" and asked him if it were true. Upon Lacona's acknowledging his leadership , Knaus asked him why he wanted a third party in the plant. Lacona replied that he desired security. He was discharged about 2 weeks later and upon asking Superintendent Samoroy for the reason , the latter stated that General Manager Miller had said Lacona would know why. On January 20, 1950, employee Nicholas Lesczynski , a molder , was discharged by Superintendent Samoroy who told him he would have to let him go, that the "old man" was "burned up" because Lesczynski had been talking about the first union meeting that had been held on January 13. On February 10, 1950, before he was discharged,. Foreman Lostumbo asked employee Leon.Ploski if he knew about the Union , when the first union circulars had been distributed in the shop, requested Ploski to inquire if his father, employee John Ploski , and employee Edward Sobolewski knew about the Union, and if he wanted to, to attend the next union meeting to write down the names of those present. 2. Conclusions The above findings are founded upon documentary as well as credited testi- monial evidence of witness Maslona, Stevenson, Coleman, King, Sobolewski, Muhlnickel , Smith, Lacona, Lesczynski, and Ploski. Insofar as evidence in the testimony of Przepiora ,' Knaus, Samoroy , Fischer, and Miller is at variance from the evidence upon which the findings are made, such testimony is not credited . Przepiora's testimony mainly was to the effect that he did not recall King (who was present under subpena and displayed no apparent interest in the outcome of the case ), so he could not remember any conversation with him, that various employees talked to him about the subject of a union, that he was aware of the fact that there was union activity going on among the employees , that he did not recall having asked King how he was going to vote, and that he did not tell anyone in the plant that it would be closed if the Union should win the election . As I observed and have weighed the interest of both Przepiora and King, Przepiora 's testimony was unconvincing as a refutation of the statements attributed to, him in what I am satisfied is the entirely ingenuous testimony of Robert L. King. Nor does. King's testimony that he believed the last time he came to work was April 14 , 1949, vis a Vis the accuracy or otherwise of Respondent's post-hearing affidavit that the date was October 16, 1949, detract from my conviction his account of Przepiora 's remarks was truthful. President Knaus admitted that he talked to Muhlnickel about February 1, that possibly Muhlnickel had complained about the scrap arrangement , but denied he had said that employees desiring a union should go to work elsewhere or that he would close the plant if the shop went union. He testified that he had been advised by counsel never to use the word "union" and never to say "you are going to close the plant." Mr. Knaus also admitted engaging in many con- versations with Lacona and some conversations with Coleman . - He however made a blanket denial that he had uttered the statements they ascribed to him. At one point in his testimony, Knaus stated he never knew who the union leaders were until he heard their evidence at the hearing and immediately there- after testified he did have some idea they consisted of the group who were at the hearing. He could well have expected that Coleman would be likely to reciprocate for past favors and perform his bidding to talk to the boys': He did not deny that he asked Maslona after the meeting of about 10 coremakers in Miller's office if Maslona knew anything about the rumors he heard around. SYRACUSE FOUNDRY, INC. 413 Having observed Muhlnickel's, Lacona's, Coleman's, and Maslona's appearance en the witness stand and having considered and compared their interest in the outcome of the case with that of Knaus, I am satisfied that the weight of the testimony given by these 4 employee witnesses, 3 of whom had no concern in the result, preponderates over that elicited from Knaus and that although the latter probably, scrupulously followed the advice to abjure the use of the word "union" or the bare threat to close the plant, he did by moderately adroit circumlocution convey to the minds of the 4 employees to whom he talked, the substance of the facts to which they testified and the warning he sought to impress. Superintendent Samoroy testified that he never threatened that he would dis- charge or make it tough for any of the employees who had shown any interest in the Union or would get them for union activities. However, he did not specifically deny he told Muhlnickel that he would like to get them and that he had wanted to do it before but had not been allowed to. Samoroy did not deny that when he discharged Lesezynski, he told him he would have to let him go because Lesezynski had been talking about the first union meeting. In the light of the positive testimony of both Muhlnickel and Lesczynski, which was given in a straightforward manner, I have no hesitancy in concluding that their accounts of statements-made to them by Samoroy are truthful. General Manager Miller did not deny Maslona's testimony that at one of the two meetings of coremakers in his office he asked the employees, who thought they could make more money elsewhere, why they did not leave and let the ether men who were satisfied remain or stated it was up to the employees whether Respondent got work which was coming in or that he could afford to retire al- though some of the employees could not and that he did not have to go through with this? Foreman Fischer, after having first denied that there was a conversation con- cerning unions between himself and Lacona or that he asked Lacona about the Union or union organizations, subsequently admitted that such a conversation was held a week or two before the election. Fischer's disavowal of Lacona's testimony that he asked Lacona if he had heard anything about the Union is unconvincing. Rather, I am persuaded that having made the inquiry and having received by way of Lacona's affirmative reply the information he sought, Fischer then, as he admitted, told Lacona he did not want to know anything further. The various statements testified to by several witnesses as having been made by former Foreman Lostumbo, who was not a witness at the hearing, stand unrefuted. General Manager Miller testified that one of the principal reasons why Los- tumbo was discharged on February 10, 1951, was because he could not get infor- mation from him concerning the question of the honesty of the counts of core- makers. No evidence tending to show that Lostumbo was unavailable or other- wise to account for the fact that he was not called as a witness, was offered. John Ploski and Edward Sobolewski were called as witnesses by the Re- spondent. Neither denied the testimony of Leon Ploski who stated that, acting upon Lostumbo's request, he inquired of them if they knew anything about the Union. Neither did Sobolewski deny Ploski's testimony that when Ploski asked him the question, Sobolewski told Ploski "to get the hell out of here." The evidence regarding statements made by Lostumbo came from the mouths of many witnesses and impressed me as being credible. I can not agree with Re- 2 It Is apparent that President Knaus and General Manager Miller were equally assiduous in their euphonious attempts to follow the advice to avoid the use of the word "union," in intercourse with Respondent's rank-and-file employees. It Is clear that their use of such words as "third party" and "this'thing" was calculated to'mean, and did convey to Respondent's employees the meanings "union" and "unionization." 414 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD spondent that it should be rejected in tote. I find that the conversations took place as testified. The coercive effect, if any, of the letters Respondent addressed to its employees during the election campaign must be considered in its context with its officers and supervisory employees' pronouncements and inquiries during that period and im- mediately after the election. Among these statements and questions are those made by Miller that it was up to the core men whether Respondent got a lot of work coming in, why the dissatisfied employees did not leave, and allow satisfied employees to remain, that he could retire and did not have to go through with this but that the employees could not afford to retire, by Knaus to Coleman and Muhlnickel that if the plant were unionized he would shut down, and by Przepi- ora to King that if the Union got into the plant, Respondent would close the shop. When viewed in the light of these warnings, no little significance is to be at- tached to Respondent's statement in the letters that it could not compete with out-of-town foundries if its employees should work shorter hours and for in- creased pay (a result the Union had predicted in its circulars would follow upon organization of the plant) coupled, as it was, with the references to the fact that at the time there were 15,000 unemployed in Syracuse, and to the com- plete or partial closing of other foundries, inferentially due to employees' deci- sions regarding unions, to Respondent's statement that it appeared it had work for every employee unless it had to raise prices to its customers with whom it was working in order to keep all its employees at work, to the pointed repetition con- cerning the closing of other foundries in the vicinity, and the equivocal inquiry as to the cause therefor and the concluding positive declaration that its employees, best interests would be served by voting against the Union. These statements must be appraised as of the time and environment of their issuance. In view of the circumstances under which the statements were made, the reference, under the guise of exercising the right of free speech, to employees' losses of employ- ment must be considered as a thinly veiled threat of economic reprisal as the price of adherence to the Union' I conclude, as alleged in paragraph VII of the complaint, that Respondent has interrogated employees concerning their union membership and activities, has interrogated employees concerning the union membership and activities of their fellow employees, has stated to employees that it would close its plant down rather than bargain with the Union, and has requested employees to keep under surveillance the meeting places, the meetings, and the activities of the Union. It is also alleged in three clauses of paragraph VII of the complaint that Respondent stated to employees they would be discharged or disciplined if they joined the Union, or if they engaged in concerted activities and were warned not to so join or engage. In my opinion neither the established facts nor such inferences as may reasonably be drawn from Respondent's interrogations and requests of employees concerning their own and their fellow employees' union activities and to keep under surveillance union activities or its warnings it would close the plant down (as finely distinguished from threats of discharge or discipline of employees joining the Union) rather than deal with the Union, warrant a conclusion that these particular specific allegations of independent 8 (a) (1) violations have been separately sufficiently proven Neither do I find that the General Counsel has maintained the burden of proving the allegation that Respondent offered employees economic benefits if they would not become members of the Union or vote for the Union. I regard an offer of economic I Joy Silk Mills v. N. L. R B., 185 F. 2d 732 (C. A. D. C.) enfg. 85 NLRB 1263. SYRACUSE FOUNDRY, INC. 415 benefits as a promise of something in the nature of a positive reward rather than, as here, Respondent's merely negative statement to the effect its employees' status quo would remain unchanged if they opposed the Union but might deteriorate if they favored it' Interrogation concerning union activities is per se violative of the Act and I so find . It is well settled that statements warning or threatening employees with loss of employment or to go out of business if a union should gain collective bargaining authority, regardless of how they may influence an individual em- ployee, constitute interference , restraint, and coercion within the meaning of the Act and independent violations of Section 8 (a) (1) thereof, and I so find. I therefore conclude and find that by this conduct, Respondent has interfered with , restrained, and coerced its employees in the exercise of the rights guaran- teed in Section 7 of the Act, more particularly Section 8 ( a) (1).thereof. E. The alleged discriminatory discharges and failures to reinstate 1. Vincent Smith Vincent Smith was first employed by Respondent as a molder on July 10, 1944. He was later transferred to the core room after 3 weeks. He was a versatile worker , praised by his employer for his adaptability in performing many kinds of nonroutine jobs. He resigned in March 1948 on account of poor health and went into business for himself. Smith returned to Respondent's employ as a coremaker in November 1949, under Foreman Lostumbo . On Janu- ary 13, 1950, he was requested by employees Lacona and Lesczynski to sign a union application card. He complied with the request and gave the signed card to Lacona. Smith was discharged at 4 p. in. January 16, 1950, by Foreman Lostumbo who, as appears above, said, "I've got to fire you . . . for talking too much .. . talking union too much." Lostumbo added he had Smith 's pay and started to pull it out of his pocket and while holding it said that if Smith could tell him who were the ringleaders of the Union , he would try to hold his job for him. Upon Smith's saying that he did not know who they were and furthermore if he did, he would not tell Lostumbo , the latter handed him his pay. Smith has not been reinstated. The General Counsel contends that Smith was discharged because the Re- spondent believed he was interested in and talking in favor of the Union . Respond- ent contends he was discharged for not staying at his place of work and for visiting around his department. General Manager Miller testified that on the morning of January 16, 1950, he saw Miller visiting another coremaker named Kyanka ( one of the employees Lostumbo told Stevenson on January 14, was prob- ably destined for discharge on account of the Union ) in the core room, and that he instructed Foreman Lostumbo to order him to leave ( I. e., return to his place of work about 40 feet away ). Miller further testified that when he returned to the same vicinity 15 minutes later, Smith was still there and there- upon he ordered Lostumbo to discharge Smith. Smith's version of the incident was that Mr. Miller had come into the core room about 3:45 at a time when a molder ( referred to only as "Black John") was at Smith's place of work inquiring if Smith had made certain cores the molder required the following ' There was also testimony concerning an alleged surveillance of a union meeting by a supervisory employee which if proven might have constituted interference , restraint, and coercion in violation of Section 8 (a) (1). But it was not alleged in the complaint and no findings with respect to it or any other conduct which was neither alleged nor litigated as such have been made. 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD morning and that Miller ordered the molder to go back into the foundry and when told by the molder that he was only asking Smith about cores, Miller told him that made no difference as the molder had a foreman to ask about cores. After that Lostumbo paid him off. Smith further testified that probably Mr. Miller saw him talking with Kyanka at the other end of the core room at a time when he was assisting Kyanka or Joe Duszak in drawing a box and helping him patch his core, that he then went back to work at his own horses and at the end of 15 minutes went up to the other end of the core room again to procure rods for his core. Although Miller testified that the only reason why Smith was discharged was because of his visiting this Mr. Kyanka on January 16, Respondent presented other evidence through Superintendent Samoroy that Smith, during both periods of his employment, wandered around the shop all the time, that he was always in conversation with somebody, that all he did was just walk up and down, stop and talk, and never stay permanently in one place. Whether Samoroy's testi- mony in this regard is true or false,' it is clear that he never warned Smith against walking around or talking, that there was no plant rule, written or other- wise proscribing such conduct, and that no one else in a position of authority had criticized Smith's purported delinquencies. Miller who testified that Smith was a good mechanic admitted that at the time of Smith's discharge he had heard rumors of union activities in the plant and that he did not know whether Lostumbo had told Smith, whe he rehired him in November 1949, that Miller had stated he should stay on the job. I am satisfied and find on Smith's evi- dence that neither Lostumbo nor any one else in a position of authority criticized or cautioned Smith about leaving the immediate vicinity of the horse upon which he worked on his cores or talking with other employees. Furthermore, there is ample evidence, not only from Smith but from Miller himself, and I find, that Smith could go to the other end of the core room to get rods if he wanted to, and that if a man did not have any rods and the foreman did not see that they were supplied, coremakers would probably go outside the core room to get them themselves. I find on the virtually undisputed testimony of Smith and Lacona that it was a customary practice for molders to come into the core room to procure or talk about cores. Superintendent Samoroy admitted that coremakers worked with partners in drawing boxes and I find on his testimony and that of Smith that each -coremaker helped others in drawing boxes and in patching cores when cores broke. As Smith was practically the only coremaker paid on a day-work basis, he was called upon a little more than were the pieceworkers to assist others in drawing boxes. Thus it appears, and I find, that the very nature of Smith's work involved some circulation throughout the core room as well as outside the core room to procure rods and some conversation with other core- makers while assisting them in drawing boxes as well as with molders in con- junction with the preparation and supply of cores to be used by the molders. I find that when Miller first saw Smith talking to Kyanka on January 16, 1950, Smith was engaging in or preparing to engage in the act of assisting Kyanka draw a box,' that when Miller saw Smith some 15 minutes later, the latter 'It is difficult to believe that if Smith had engaged in the utter ubiquity Samoroy ascribed to him throughout the periods when he was employed from 1944 to 1950, Re- spondent should have waited some 6 years before taking the drastic action of discharging him, without any previous warning throughout that entire time, for talking to Kyanka who himself was being considered by Respondent as a subject of discharge because of his suspected union adherence. 6 Even if Smith was not helping Kyanka at the time Miller saw him and was merely conversing with Kyanka , Smith was not violating any company rule or engaging in any conduct for which he had ever been criticized or against which he had ever been warned. SYRACUSE' FOUNDRY, INC. 417 probably was engaging in the act of going to procure rods and that Miller saw him also at a time when "Black John" was talking to Smith about cores he needed the following day. Although Smith did not attend any regularly scheduled meetings of the Union, he was present at informal gatherings in the homes of employees where the Union was discussed. At the time of Smith's discharge Miller admittedly was aware of the fact that the organization of a union was being agitated in the shop, and Knaus had some idea that the leaders in the organizational movement were in the group, including Smith, who testified at the hearing. After he was seen talking to Kyanka,' who himself was on Respondent's "suspect list," Smith, whose ability both as a coremaker and as an all-round mechanic and utility man was well regarded by his employers, was abruptly discharged. I have no hesitancy in concluding, and I find, in view of Respondent's open opposition to the unionization of its plant, that Smith's precipitate discharge, 3 days after he joined the Union, after having been in Respondent's employ for about 51/2 years (with an interruption of about 18 months), was occasioned by General Manager Miller's belief, as evidenced by Lostumbo's remark to Smith after Miller had talked to him, that Smith was a proponent of unionization, and his suspicion that he was advocating the rumored organizational activities in his contacts with other employees, and that his talking with Kyanka is an unten- able explanation and merely a pretext for his discharge. I am convinced that the real reason for this discharge was a desire to control, discourage, and prevent union activity. Accordingly, I find that Respondent discriminatorily discharged Vincent Smith on January 16, 1950, and has since failed and refused to reinstate him and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act. 2. Nicholas Lesczynski Nicholas Lesczynski was first employed by Respondent as a molder on July 1, 1944. His trade was that of a coremaker and shortly after being hired, his request to be transferred to the core room was granted. He quit in December 1945 and returned to work July 1, 1947, remaining until September 6 of that year. He was again hired as a molder on November 14, 1949, and remained at work until he was discharged by Superintendent Samoroy on January 20, 1950. Lesc- zynski has not been reinstated. The General Counsel contends Lesczynski was discharged because of his union activities. Respondent insists he was discharged because he produced too much defective work or scrap. At Lacona's behest, Lesczynski attended the union meeting on January 13, 1950, and signed a membership application card. He also was present and'voted at the union meeting held on January 15. At noon on January 20, President Knaus came into the washroom and over- heard him talking about the Union (a fact undenied by Knaus) ; Knaus said nothing, glared, and walked out into the office. That afternoon around 3: 30 to 4: 30, Superintendent Samoroy said to Lesczynski, "I'll have to let you go. The old man is burned up because you are talking too much." To Lesczynski's reply "What, about the meeting we held last Friday?" Samoroy responded, "Yes." Samoroy said nothing about Lesczynski's alleged over-production of - scrap when he discharged him. Lesczynski admitted that he had been criticized for inefficient molding and that since his trade was core-making rather than Miller testified that although he requested. Foreman Lostumbo to tell Smith to leave Kyanka , he did not know whether Lostumbo had spoken to Smith . I find on Smith's credited testimony that Lostumbo did not speak to him about leaving Kyanka. 418 'DECISIONS OF NATIONAL LABOR RELATIONS BOARD molding, due to his inexperience as a molder (a fact I find was well known to Re- spondent),8 he was not able to control a mold that is going to be set Samoroy testified that Lesczynski's percentage of scrap was exceedingly high and although comparative records of scrap production had been kept he did not know where the records might be at the time of the hearing. Although I am entirely satisfied that Lesczynski was not a highly efficient or experi- enced molder, I am unable to conclude in the absence of Respondent's having gone forward with the proof, solely in its possession, of showing that his record of defective workmanship was worse than that of all or most other molders who were not discharged for faulty work, that unsatisfactory work was the only reason for his having been discharged. Samoroy testified that Lesczynski's scrap production had been excessive throughout the entire period of his em- ployment. As early as shortly after July 1, 1944, Respondent knew Lesczynski was not an expert molder, he had admitted it, and for a time up until December 1945 had been given core work in which he excelled. Despite this knowledge Respondent, presumably because of the shortage of good foundry men, was willing to put him back on, and did put him back on molding on July 1, 1947, and again on November 14, 1949. On all the evidence, Lesczynski was no worse a molder or produced no more scrap on or about January 20, 1950, than on July 1, 1944, July 1, 1947, or November 14, 1949. It is therefore difficult for me to believe that on January 20, 1950, Lesczynski, who was on Respondent's "suspect list" as destined for possible discharge for union activities as early as January 14, was by mere coincidence for the first time, 7 days after he joined the Union and 5 days after he had attended a meeting, found to be so intoler- ably poor a molder as to require his being discharged during the course of the union campaign within about 4 hours of the time Respondent's president had overheard him talking about the Union. It may well be that despite the shortage of good foundry men, Respondent in the exercise of good business judgment could have decided Lesczynski merited discharge for inefficiency at any time, even on January 20, 1950. But even if inefficiency were one of Respondent's reasons for firing him when it did get around to taking such action, it is obvious to me and I find, in view of Respond- ent's clearly apparent as well as self-proclaimed opposition to the Union, that another, if not the sole reason for the discharge of Lesczynski was his union interest and activity. Accordingly, I find that a reason for this discharge was Respondent's desire to control, discourage, and prevent union activity, that Respondent discriminatorily discharged Nicholas Lesczynski on January 20, 1950, and has since failed and refused to reinstate him and has thereby engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act. 3. John Lacona John Lacona was first employed by Respondent as a grinder on April 8, 1939. He became a molder in March 1940, and continued to work as such under Foreman Sam Fichera until September 12, 1945, when he quit. He returned to work on September 27, 1948, and continued until December 3, 1948, when he had a "run-in" with Respondent's then Superintendent Wilbur Priester who fired him. His last period of work with Respondent was from January 12, 1949, until March 16, 1950, when he was laid off by Superintendent Samoroy who told him General Manager Miller had told him that Lacona would know why he was laid off. Lacona has not been reinstated. 8 Miller testified that for years except in 1949 there had been a shortage of help of good foundry men and that the help situation in the foundry was such that Respondent must salvage everybody it could. SYRACUSE FOUNDRY, INC. 419, Although Superintendent Samoroy testified at the hearing he did not-know why Lacona was discharged, General Manager Miller testified Lacona was laid off "because he was going into the core room and bothering the piece work core makers." The General Counsel contends that Lacona was discharged because of his union activities. Lacona was regarded by Respondent as a first-class molder. He had been able to earn as high as $172 a week at piecework rates. At one time Respondent had considered promoting him to foreman but Lacona did not desire the position. Lacona was the Union's chief protagonist among Respondent's employees. It was he who on January 2, 1950, after consulting with fellow employees, com- municated with the Union's Field Representative Martin, seeking assistance in organizing a union in Respondent's shop. He became the Union's temporary president on January 15, 1950, and continued to act in that capacity up to the time he was discharged. He was active throughout the entire election cam- paign and "signed up" many employees. About a week or two before the elec- tion Lacona undeniably talked about signing an application card and his own union activity with Frank Sarnuto who became a foreman on February 10, 11 days before the election. General Manager Miller admitted that it probably was generally known throughout the plant that Lacona was one of the leaders in the Union's organizational campaign. Foreman Frank Fischer interrogated him concerning the Union a week or two before the election. After the election, President Knaus told Lacona he heard he was a leader and upon Lacona's stating he was, asked him why he wanted a third party in the plant. Lacona continued to talk with employees about union affairs after the election was held and the Union lost on February 21. Although Samoroy told Lacona at the time he discharged him that his work was satisfactory and that he had not refused any work and Miller testified that at the time Lacona was discharged his work was satisfactory and on a par with that of anyone else in the plant, and that the reason for his discharge was his going into the core room to bother the piece coremakers.° Respondent's case was, for a time, tried on the theory that another reason for Lacona's being discharged was his selling lottery tickets during working hours.3°. In argument Respondent abandoned the contention that the selling, of lottery tickets constituted a cause for Lacona's discharge but argued that the conflicting evidence as to whether he sold or distributed tickets to his fellow workers (including several supervisory employees) on order or request and as a convenience to them without gain to himself or whether he vended them outright as a profit-making venture, should be resolved in such a way as to impugn Lacona's credibility. Although there is some doubt upon consideration of the case in its entirety, whether the ticket selling incident is sufficiently ° Miller also testified that the only employee who complained about being bothered by Lacona was John , Sobolewskl , that he did not know how many times he went into the core room to talk to employees and that he never requested or warned Lacona not to dis- turb employees in the core room. 10 The following colloquy took place between counsel and the Trial Examiner : TRIAL EXAMINER BEAN: As I understand it the Respondent has said nobody was discharged for selling lottery tickets . . . Mr. GROSSMAN : I want to show, when the time comes , that Mr. Lacona was very active in the sale of lottery tickets , which was taking him away from his employment. TRIAL EXAMINER BEAN : He wasn 't discharged for that, according to your own testimony. MR. GROSSMAN : As I understand, that was one of the causes of his discharge: MR. CAVERS : . . . it is my impression . . . that the Respondent's general manager testified that Mr. Lacona was not discharged for selling lottery tickets . Now, [are] you going to change your mind? MR. GROSSMAN : I am not changing my mind at all. . . . 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD closely associated with the issues involved, to warrant or require considering any evidence related thereto in connection 'with the impeachment of the credi- bility of any witness who testified thereon , in order to preserve the record, I And that the arrangement under which Lacona distributed weekly treasury balance lottery tickets was a combination whereby he made direct sales for his own profit to some of his fellow workers and made by prearrangement without personal gain, delivery to other fellow workers of tickets, he procured from an outside source. I further find that insofar as Lacona , in an adscititious inquiry importing suggestions of criminality , strained factual implications. respecting his distribution of lottery tickets, such distortions in no way detract from the credence to be accorded his testimony concerning the facts upon which the ultimate findings in these proceedings are made. Edward Sobolewski , of whom it will be recalled Foreman Lostumbo" made inquiries relative to union activities , and who was the only employee in the core room whom Lacona was shown to have talked to after the election, was an observer at the election . He testified that almost daily for 2 or 3 days after the election Lacona came up to him and talked about the Union and that he told Lacona that he thought the election was fair and square and he didn't want to have anything to do with it, that he had been told by his boss that he should not visit so he told the boss that something should be done to, keep Lacona away as he could not do anything about it himself and that after the last time he told Lacona that he did not want to have anything to do with union affairs, Lacona did not bother him any more. Despite the general manager's statement that Lacona's discharge resulted from his annoying the coremakers after the election ( Sobolewski was the only coremaker whom Lacona was shown to have talked to after'the election), testimony was introduced seeking to show , and it has been argued by counsel, that Lacona's work became inferior and defective after the election and belatedly charged in Respondent's brief that he was guilty . of attempted sabotage. There is no evidence that Lacona was criticized for his alleged shortcomings after the election, or that he was blamed for turning name plate cores around on the last job he did before his discharge . In view of General Manager Miller's testimony that at the time of his discharge Lacona's work was satisfactory and on a par with that of anyone else in the plant and of Super- intendent Samoroy's testimony that he did not know why Lacona was discharged and his statements that Lacona's work was satisfactory , I reject the con- tentions that he was discharged because his work became inferior and defective or because when his efforts as leader of the organizational movement fail ed,'he- attempted to sabotage his work. Nor do I believe that the real cause for Lacona's discharge was the fourth of the four shifting reasons, to wit: that he annoyed the coremakers. When this contention is analyzed it appears that the only coremaker that Lacona annoyed , assuming that talking to him constituted an "annoyance ," was Sobo- lewski, and that he talked to him no more than "almost daily" for 2 or 3 days after the election and then when requested desisted from further conversation. There is no doubt, and I find, that Sobolewski told his boss that Lacona had talked to him about union affairs and that this information came -to General Manager Miller 's attention. Nor is there doubt of the fact, and I find, that Miller's real objection to Lacona talking to Sobolewski was not that he was "annoying" him in the core room where the molders were frequently accustomed to go, but that he was talking to him about the Union which Respondent had successfully encountered and, did not wish soon to contend with again. SYRACUSE FOUNDRY, INC. 421 It would be to close one's eyes to realities to conclude that a molder of such outstanding ability as Lacona's, who had been almost constantly in Respondent's employ for a period of about 11 years except for 3 years from September 1945 to September 1948, should be discharged without warning, from a job for which there was a recognized shortage of qualified workmen, for such a flimsy and in- adequate reason as talking no more than once a day for no more than 2 or 3 days to an employee who appealed to his boss to have him stay away. If Lacona really had been fired for this reason (and of course an employer may discharge an employee for any reason, good or bad, adequate or inadequate, justifiable or unjustifiable, or for no reason at all, without violating the Act, provided the reason is not premised upon a discrimination proscribed by the Act), it is incon- ceivable'tb me that Superintendent Samoroy was not aware of the reason. In view of Respondent's hostility to the unionization of its plant and all of the facts relating to this discharge, I am convinced and find that the real reason for the discharge of John Lacona, of whom Respondent revealingly stated in its brief "it became impossible for the respondent to put up with this Union Presi- dent," was his union interest and activity. Accordingly, I find that the reason for this discharge was Respondent's desire to control, discourage, and prevent union activity, that Respondent discriminatorily discharged John Lacona on March 16, 1950, and has since failed and refused to reinstate him and has thereby engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act. 4. Leon Ploski Leon Ploski was first employed by Respondent as a laborer in the core room on October=7, 1942. He left to enter military service on February 13, 1943,. and returned to the same work in February 1946 under Foreman Kenneth Bacon. He remained at the plant for 1 month, quit, returned to work on April 26, 1948, and quit again in July 1948. He returned to Respondent's employ August 10, 1949, and was trained to make cores on machines until he was laid off, on Jan- uary 27, 1950, for poor work. He was rehired a week later following his father's appeal that he be given one more chance and resumed work on February 4, continuing until he was discharged on March 17, 1950. Ploski has not been reinstated. Respondent contends Ploski was discharged because of poor work and ren- dering a dishonest count. The General Counsel alleges that he was discharged because of his, union activities and interest. Ploslfi-attendgd the union meeting held on January 13, 1950, and signed a membership application card. On February 15, 1950, he met with a Board field examiner at the union hall and so advised Assistant Superintendent Morgan. As appears above, Foreman Lostumbo asked Ploski if lie knew about the Union, requested him to ask his father, employee John Ploski and employee Sobolewski if they knew about the Union, and if he wanted to go, to take down the names of attendants at a union meeting to be held on February 13." 11 Ploski did not attend the meeting held on January 15. His testimony with regard to the time Lostumbo asked him to procure the names of union meeting attendants was somewhat confused. I have found that such request was made. Whether it referred to a meeting projected for February 13 or announced for some other date does not affect my ultimate conclusions herein. Respondent has made considerable point of the fact that it was,.uhlikely that,Lostumbo on February 10 reggested Ploski to attend the meeting v hieh the Union notified the employees would be held on Monday, February 13, because February 10 was the last day Lostumbo worked. It is not clear, however, that the request or suggestion may not have been made earlier than February 10, in view of Ploski's testimony which was only that "I think it was on Friday " In any event there was ample time for Lostumbo to have talked with Ploski on Friday, February 10. 986209-52-vol. 97-28 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ploski admitted Respondent told him he was being discharged on account of his poor work and that he had previously been criticized for poor work, but denied that he was also told he was being discharged for dishonesty as well. Frank J. Sarnuto, who had been recently elevated to foreman, testified that he had dis- covered Ploski was making a false count (thereby being credited for and receiving more pay than he was entitled to), that he did not want to see Ploski fired and 'that he told him on four different occasions that he was to see that he could do the right thing and that he also appealed to Ploski's father (a veteran em- ployee who had been instrumental in inducing Respondent to give his son another chance and rehire him after he had been discharged for poor work on January 27, 1950) to talk to Ploski for him. Albert Morgan, an assistant to Foreman Sarnuto, testified that together with Sarnuto he checked the actual number of cores Ploski produced against the number he reported on slips as having made and found a number of times that the figures on the slips were incorrect, that he warned Ploski two or three times and that on March 17, 1950, the day Ploski was fired, he found that although Ploski had produced only 60 cores, he credited himself with having made 120. Morgan further testified that he then recom- mended to Foreman Sarnuto that Ploski be fired because he had warned him a number of times before after having been caught the same way. There is little question that quite aside from the question of Ploski's having made false counts, his work was not satisfactory. Apart from Ploski's virtual admission that his work was faulty,' and his definite admission that his work had been criticized, there is abundant evidence from every witness who was interrogated on the subject that he was a poor workman. It may well be in- quired why Respondent did not discharge him long before March 17, if he were so inept. However, it does appear that he was given 5 months' training from August 10, 1949, until he was first discharged and I feel that Respondent prob- ably concluded at that time that he, after having been given an adequate trial, could not be developed into a satisfactory coremaker and accordingly let him go. I also conclude that he was given one more trial after February 4, largely due to his father's intercession with management, that his work did not improve and that when it became apparent that in addition to unsatisfactory workman- ship, Ploski was also cheating, Respondent accepted its assistant foreman's recommendation and discharged Ploski, as it claims, for the dual reasons of poor work and rendering a dishonest count. In view of Respondent's antiunion campaign, Ploski's known interest in the Union,' and Respondent's questioning him about the Union, every action of Respondent which might be construed as a part of a plan to get rid of this man is naturally suspect. However, after full consideration of this aspect of the proceedings, I conclude that it is more likely that Ploski was discharged for the reasons asserted by Respondent than because of discriminatory motives. I accordingly find that the General Counsel has not proven that Respondent discriminated against Leon Ploski within the meaning of the Act and therefore shall recommend dismissal, of that portion of the complaint which relates to him. " - 12 Ploski attributed his poor work to a faulty machine It is true that the machine upon which he was required to do part of his core making was old and that it was a difficult piece of apparatus for an unskilled person to operate. Yet other employees, in- cluding his father, were successful in turning out satisfactory cores on the same machine. " I do not rely on the incident described by Ploski of Lostumbo's presence in an automo- bile in the vicinity of the union meeting place to which Ploski was proceeding, in reaching this conclusion. SYRACUSE FOUNDRY, INC. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE 423 The activities of the Respondent as set forth in Section III, above, occurring in connection with its operations described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and 'obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirm- ative action designed to effectuate the policies of the Act. Having found that the Respondent has discriminated in regard to the hire and tenure of employment of Vincent Smith, Nicholas Lesczynski, and John Lacona, it will be recommended that Respondent offer to each immediate and full reinstatement to his former or substantially equivalent position 14 and make each whole for any loss of pay he may have suffered as a result of the Respondent's discrimination against him by payment to each of a sum of money equal to that which he would have earned as wages from the date of the dis- crimination 16 to the date of offer of reinstatement. Loss of pay shall be com- puted on the basis of each separate calendar quarter or portion thereof during the period from Respondent's discriminatory action to the date of a proper offer of reinstatement. The quarterly periods, herein called quarters, shall begin with the first day of January, April, July, and October. Loss of pay shall be determined by deducting from a sum equal to that which each would normally have earned for each quarter or portion thereof, his net earnings, if any, in other employment during that period. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other quarter." In accordance with the Woolworth decision, it will be recommended that Respondent, upon reasonable request, make available to the Board and its agents all records pertinent to an analysis of the amounts due as back pay. The unfair labor practices found including those concerned with threats, interrogation, and surveillance, reveal on the part of Respondent such a funda- mental antipathy to the objectives of the Act as to justify an inference that the commission of other- unfair labor practices may be anticipated. The pre- ventive purposes of the Act may be frustrated unless Respondent is required to take some affirmative action to dispel the threat. It will be recommended, therefore, that Respondent cease and desist from in any manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed by the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following : CONCLUSIONS OF LAW 1. International Union of Electrical , Radio and Machine Workers, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Vincent Smith , Nicholas Lesezynski, and John Lacona , thereby discouraging 14 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827 16 In the case of Smith , January 16,- 1950 ; of L esczynski, January 20, 1950; of Lacona, , March 16, 1950. 16 P. W. Woolworth Company, 90 NLRB 289. -- • ` 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD membership in and activities on behalf of a labor organization, the Respond- ent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8 (a) (1) and (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2 (6) and (7) of the Act. 5. The Respondent has not engaged in unfair labor practices within the meaning of Section 8 (a) (1) or (3) of the Act by discharging and thereafter failing and refusing to reinstate Leon Ploski. 6. The Respondent did not violate' Section 8 (a) (1) of the Act by stating to employees that they would be discharged or disciplined if they became members of the Union, by stating to employees that they would be discharged or disci- plined if they engaged in concerted activities for the purpose of collective bargaining or other mutual aid or protection, by warning employees not to become members of the Union, or to engage in union or concerted activities for the purpose of collective bargaining or other mutual aid or protection or by offering employees economic benefits if they would not become members of the Union or vote for the Union. [Recommended Order omitted from publication in this volume.] THE ;TRUSTEES OF COLUMBIA UNIVERSITY IN THE CITY OF NEW YORK 1 anC1 COMMUNITY AND SOCIAL AGENCY EMPLOYEES, LOCAL 1707, CIO, PETITIONER, Case No. 2-RC-2428. December 11, 1951 Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Merton C. Bernstein, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board makes the following findings The Petitioner seeks to represent a unit consisting of all clerical employees in the libraries of Columbia University, excluding all pro- fessional employees and supervisors, as defined in the Act. The Petitioner contends that the Employer, herein called Columbia Uni- versity, is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act for the Board to assert its jurisdiction in this proceeding.: Columbia University contends that it is not engaged in commerce within the meaning of the Act and that, even if the Board does have jurisdiction over its activities, the The petition and other formal papers-were amended at the hearing to show the correct name of the Employer. 97 NLRB No. 72.