The Office Towel Supply Co., Inc.

THE OFFICE TOWEL SUPPLY COMPANY, INCORPORATED 449 employees as defined in Section 2 (3), I reject the employer's contention that the district agents are supervisors within the meaning of the Act. Great Lakes Sugar Company, 92 NLRB 209. Responding further to the Board's Order of Remand, I find. (1) As noted in an earlier portion of this Supplemental Report, the Board, by its Decision and Direction of Election issued on April 16, 1946 (67 NLRB 363), held that "circulation and district managers in the circulation division of the Company constitute a unit appropriate for the purpose of collective bargain- ing within the meaning of Section 9 (b) of the Act." The evidence is undisputed that the district agents employed by Respondent at the time of Erger's termina- tion are the same type of employees, and perform the same services as the cir- culation agents referred to in the above decision. The district managers alluded to in the Board's Decision are admittedly salaried employees of the Respondent, approximately three or four in number, whose principal function is to substitute for district agents when the latter are on vacation or are otherwise incapacitated. It was in behalf of this unit that Erger conducted the Guild activities described in the Intermediate Report. Indeed, the principal objects of his solicitation for Guild membership were district managers (2) Circulation supervisors," according to the uncontradicted testimony of Rippeto, "direct the activities" of district agents and district mmnacers, and devote their full time to "working with the district agents and district managers." It was from the circulation supervisors that the district agents received "almost all of what supervision they had in the conduct of their woi k." They "worked all the time toward getting the delivery service improved " While they had no authority to hire or fire district agents or managers, they made reconmienda- tions concerning such action to Rippeto and sometimes handled "the mechanics" of termination. El rger consulted his supervisor daily "about different problems [he] may have had " According to Erger's undisputed testimony the supervisors "would come around-every once in a while-to check whether the paper was being delivered correctly" ; they kept a daily record of complaints and prepared charts and bulletins showing the relative standing of the agents. Significant, too, is the fact that these men were referred to by all witnesses as supervisors, and that each of them had from 10 to 20 agents under his supervision Accord- ingly, I find that Barrett, Salisbury, Oehl, and Holmes are supervisors within the meaning of the Act. In light of the foregoing findings, I find no occasion to alter or amend the sections of the previously filed Intermediate Report entitled "The Remedy," "Conclusions of Law" and "Recommendations," and hereby reincorporate said sections as a part of this Supplemental Report. 6 Included in this group are supervisors Barrett, Salisbury , Oehl, and Holmes TILE OFFICE TOWEL SUPPLY COMPANY , INCORPORATED and CONGRESS OF INDUSTRIAL ORGANIZATIONS TIIE OFFICE TOWEL SUPPLY COMPANY, INCORPORATED and THERESA JENIFER. Cases Nos. 3-CA-3.48 and 3-CA-344. December 12,1951 Decision and Order On June 27, 1951, Trial Examiner Robert E. Mullin issued his Intermediate Report in the above-entitled proceeding, finding that the 97 NLRB No. 71. 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent had not engaged in unfair labor practices as alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Inter- mediate Report and a supporting brief. The Board 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 Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, only insofar as they are consistent with this Decision and Order. 1. We find, in agreement with the Trial Examiner, that the Respond- ent is engaged in commerce within the meaning of the Act. Unlike the Trial Examiner, however, we do not rely on the fact that the Re- spondent does business with Loblow, a retail grocery firm. 2. The Trial Examiner's dismissal of the discharge of Theresa Jenifer because of the absence of evidence of unlawful motivation by the Respondent, indicates a failure to consider the applicability of settled law that once it is made to appear from primary facts than an employer has violated the express provisions of the Act, then his mo- tives are not relevant.' In this posture, the crucial issue is whether the conduct for which Jenifer was discharged was protected by the Act. The pertinent circumstances surrounding Jenifer's discharge are as follows : From July 1950 to the end of September 1950, the Respond- ent's plant was surveyed by a firm of efficiency engineers who took time studies of the various operations in order to improve the utilization of the Respondent's personnel. An incentive pay system was put into effect to replace an hourly rate mode of pay. Jenifer, as well as other employees, expressed dissatisfaction among themselves at the presence of efficiency engineers in the plant. On August 18, 1951, the date of Jenifer's discharge, during a morning recess which took place on the sidewalk in front of the plant, a group of five employees, including Jenifer, discussed various sources of employee dissatisfaction and con- cluded that a union was needed at the plant.2 During this discussion, 'See American Shuffleboard Co. v. N. L. R. B, 190 F. 2d 898 (C. A. 3 ) enforcing 92 NLRB 1272 , where the court stated that to hold otherwise "would materially weaken the guarantees of the Act , for the extent of employees' protected rights would be made to vary with the state of the employer 's mind." See also N. L. R. B. v. Gluck Brewing et at., 144 F. 2d 847 ( C. A. 8) enforcing as modified 47 NLRB 1079; N. L. R. B . V. Hudson Motor Car Co., 128 F. 2d 528 (C A. 6) enforcing 34 NLRB 815. 2 Respondent's President McDonald,s version as to the effect of the efficiency engineers was as follows : "Well, frankly, it was confusion. It was during the summer which is primarily a vacation period throughout the plant and at which time we had temporary girls hired for vacation fill-ins, and as the engineers got along and put various departments on incentive , why, of course , as soon as the girls grasped what it was all about and increased their tempo it left extra people standing around, and although [it] had been explained that [we] were going to see what could be done, they were confused and they were startled as to whether they were going to lose their jobs." THE OFFICE' TOWEL SUPPLY COMPANY, INCORPORATED 451 Jenifer made the following statement to the group : "This is a hell of a place to work. They expect one girl to do the work of five and a girl doesn't even get time to go to the ladies' room." The Respondent's president, through his office manager, learned of Jenifer's remark to' the other employees, but was not informed of any reference about a union. That afternoon, he called Jenifer to his office and told her' she was discharged because of her expressed dissatisfaction .3 We think it clear, as found by the Trial Examiner, that the group discussion between Jenifer and the other four employees, involving protests against working conditions and the need for unionization, constituted concerted activity for mutual aid and protection within the meaning of Section 7 of the Act 4 Jenifer's statement to the group was itself a complaint against existing conditions of employment, cal culated to induce group action by the employees to correct a grievance. Such activity by Jenifer was an "indispensable preliminary step to, employee self-organization" and therefore enjoyed the protection accorded concerted activity under the Act.5 Any other view concern-, ing Jenifer's discharge would permit an employer to frustrate con- certed activity at its inchoate stage and make a mockery of the guarantees of Section 7 of the Act. In view of the foregoing, and upon the entire record, we find that Jenifer was discharged because she engaged in protected concerted activity and that the Respondent thereby interfered with, restrained, and coerced its employees in the rights guaranteed in Section 7 of the Act, in violation of Section 8 (a) (1) thereof. Because such a discharge also amounts to a discrimination in regard to hire and tenure of employment, thereby discouraging membership in any labor organization, the Respondent also violated Section 8 (a) (3) of the Act.e Whether the discharge be regarded as a violation of Section 8 (a) (1) or 8 (a) (3), the remedy hereinafter provided as to rein- statement and back pay is the same. 3. The Trial Examiner also found, and we agree, that there is not a preponderance of evidence in the record to support the allegation that the Respondent discriminatorily refused to rehire certain em- ployees who engaged in an economic strike. Accordingly, we shall dismiss the complaint with respect thereto. 6 At the hearing, McDonald stated that part of the reason for Jenifer's discharge was that she had previously complained about the presence of the engineers , but admitted that the "crux of this whole thing" was her statement to the other employees about the ladies' room. 4N L. R. B. v. Phoenix Mutual Life Insurance Co., 167 F. 2d 983 (C. A. 7), enforcing 73 NLRB 1463 , cert. denied , 335 U. S. 845 ; N. L. R. B. v. Kennaanetal, Inc., 182 F. 2d 817 (C. A 3), enforcing 80 NLRB 1481 ; Root-Carlin, Inc., 92 NLRB 1313. 6 See Root-Carlin, Inc, supra. 6 N. L. R . B. v Tovrea Packing Company, 111 F 2d 626 ( C. A. 9), enforcing as modified, 12 NLRB 1063 , cert. denied 311 U. S 668 ; The Ohio Oil Company, 92 NLRB 1597. 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The Respondent's foregoing unfair labor practices, occurring in connection with the operations of the Respondent, have a close, in- timate, and substantial relationship to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the- free flow thereof. The Remedy Having found that the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act, we shall order the Respondent to cease and desist therefrom and take the following affirmative action designed to effectuate the policies of the Act : (1) Offer Theresa Jenifer immediate and full reinstate- ment to her former or substantially equivalent position,' without prejudice to her seniority or other rights and privileges; and (2) make Theresa Jenifer whole for any loss of pay she may have suffered by reason of the Respondent's unlawful discharge, by payment to her of a sum of money equal to the amount she would normally have earned as wages, during the period from the date of her discharge to June 27, 1951, the date of the Intermediate Report herein, and during the period from the date of this Decision and Order to the date of the Respondent's offer of reinstatement, less her net earnings 8 during said periods. We shall also order the Respondent to make available to the Board, upon request, payroll and other records to facilitate the checking of the amount of back pay, which shall be computed in_ accordance with the Board's customary formula.9 Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Board makes the following: SUPPLEMENTAL CONCLUSIONS OF LAW 11. By discriminating in regard to the tenure of employment of Theresa Jenifer, the Respondent interfered with, restrained, and co- erced its employees in the exeicise of rights guaranteed in Section 7 of the Act, and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 2. By engaging in such discrimination, thereby discouraging the formation of or membership in any labor organization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. ' The Chase National Bank of the City of New York, San Juan, Puerto Rico Branch, 65 NLRB 827. $ Crossett Lumber Company, 8 NLRB 440 ; Republic Steel Corporation v. N. L. R. B, 311 U. S. 7. 9 F. W. Woolworth Company, 90 NLRB 289. THE OFFICE, TOWEL SUPPLY COMPANY, INCORPORATED 453 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 4. The Respondent has not engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act, by refusing to reinstate employees Brown, Brownson, Ciszak, Cryankowska, Gasiewicz, Lacombe, Ratusny, and Wild. Order Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, The Office Towel Supply Company, Incorporated, Buffalo, New York, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in any labor organization of its em- ployees by discharging or otherwise discriminating against any of its employees because of their concerted activities. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organiza- tion, to' form or join labor organizations, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act, 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. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Offer to Theresa Jenifer immediate and full reinstatement to her former or to a substantially equivalent position, without prejudice to her seniority and other rights and privileges. (b) Make whole Theresa Jenifer in the manner set forth in the section entitled "The Remedy" for any loss of pay she may have suffered by reason of the Respondent's discrimination against her. (c) Upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security pay- ment records, time cards, 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. 9 8 6 2 0 9- 5 2-v o l 9 7-- 3 0 454 DECISIONS OF NATIONAL-LABOR RELATIONS BOARD (d) Post at its plant in Buffalo, New York, copies of the notice attached hereto marked "Appendix A." 10 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 a period of sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are custom- arily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the 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 be, and it hereby is, dis- missed insofar as it alleges that the Respondent discriminated in regard to the hire and tenure of employment of Eleanor G. Brown, Veda E. Brownson, Adeline Ciszak, Anna Cyrankowska, Hellen Gasiewicz, Clara Lacombe, Adeline Ratusny, and Lorraine Wild. CHAIRMAN HERZOG, dissenting : I would affirm the Trial Examiner and dismiss the complaint in its entirety. I cannot believe that Jenifer's remarks constituted the sort of concerted activity which Congress intended this Board to protect. MEMBER MURDOCK took no part in the consideration of the above Decision and Order. Appendix A NOTICE To ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT discourage membership in any labor organization of our employees by discharging or refusing to reinstate any of our employees or in any other manner discriminating in regard to their hire or tenure of employment, or any term or condition of their employment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights 1° In the event this Order is enforced by decree of a United States Court of Appeals, there shall be inserted before the words, "A Decision and Order " the words, "A Decree of the United States Court of Appeals Enforcing." THE OFFICE, TOWEL SUPPLY COMPANY, INCORPORATED 455 to self-organization, to form, join, or assist any labor organi- zation, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL OFFER to Theresa Jenifer immediate and full rein- statement to her former or substantially equivalent position, with- out prejudice to any seniority or other rights and privileges previously enjoyed, and make her whole for any loss of pay suf- fered as a result of our discrimination against her. All our employees are free to form, join, or assist any labor organi- zation, and to engage in any self-organization and other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from such activities except to the extent that such right is affected by an agreement made in conformity with the proviso to Section 8 (a) (3) of the Act. THE OFFICE TOWEL SUPPLY COMPANY, 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 STATEMENT OF THE CASE Upon charges duly filed by the Congress of Industrial Organizations (herein called C. I. 0.) in Case No. 3-CA-348, and Theresa Jenifer in Case No. 3-CA-344, the General Counsel for the National Labor Relations Board,' by the Regional Director for the Third Region (Buffalo, New York), March 6, 1951, issued an order consolidating the cases, a complaint, and notice of hearing. In this com- plaint it was alleged that by discharging an employee on August 18, 1950, by refusing to reinstate eight other employees subsequent to a strike, and by other conduct, the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein called the Act. In its answer, duly filed, the Respondent admitted certain facts with respect to its business operations but denied that it had committed the alleged unfair labor practices. Pursuant to notice, a hearing was held on March 20 to 22, 1950, inclusive, at Buffalo, New York, before the undersigned Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel and the Respondent were rep- resented by counsel and the CC. I. 0. by a field representative. All parties were I The General Counsel and the attorneys representing him at the hearing are referred to as the General Counsel ; the National Labor Relations Board as the Board (or National Board). 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD afforded opportunity to be heard, to examine and cross -examine witnesses, and to introduce evidence bearing on the issues. At the close of the General Counsel' s case-in-chief the Respondent moved to dismiss the complaint. This motion was denied . At the close of the hearing when it was renewed by the Respondent , ruling thereon was reserved by the undersigned. It is disposed of in accordance with the findings of fact and con- clusions of law set forth below. Likewise at the conclusion of the hearing the Respondent also renewed a motion, previously denied, to dismiss the C. I. O. as a party to the proceeding in Case No. 3-CA-348 for failure of interest since the record contained no reference to any organizational efforts of that union on behalf of the Respondent's employees. This motion is again denied. Even as a stranger to the dispute between the Respondent and its employees the C. I. O. would still be free to file a charge (Section 102.9, Rules and Regulations ; cf. N. L. R. B. v. Indiana & Michigan Electric, 318 U. S. 9 at 17-18) and thereafter be a party to any subsequent proceeding arising out of such charge. Sections 102 8 and 102.38, Rules and Regulations! After the receipt of the evidence opportunity was afforded all parties to argue orally. Argument was had by both the General Counsel and the Respondent. All parties were likewise advised that they might file briefs with the Trial Examiner. Subsequent to the hearing a brief was received from the Respondent. Upon the entire record in the case, and from his observation of the demeanor of the witnesses , the Trial Examiner makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Office Towel Supply Company, Incorporated, Respondent herein, is a New York corporation with its principal office and only plant located in Buffalo, New York, where ft processes laundry and operates a linen service. In the conduct of its business the Respondent uses raw materials valued at approximately $100,000 annually; over 70 percent is purchased, delivered, and transported in interstate commerce from and through States other than the State of New York to its Buffalo plant. Its income amounts to approximately $500,000 annually and is derived from the supply of uniforms, towels, and related materials,. serviced and processed at its plant, to a large number of business firms in the- Buffalo area. In excess of 20 percent of this income is received from the supply of such items to railroads, steamship lines, freight handling companies , public utilities, industrial plants, and business firms engaged in interstate commerce 8- From one of these patrons, Loblow's, a retail grocery chain with outlets through- out New York and Pennsylvania, the Respondent receives in excess of $50,000 annually for its services . The Respondent concedes , and upon the foregoing- facts the undersigned finds, that The Office Towel Supply Company is engaged in commerce within the meaning of the Act. Hollow Tree Lumber Company, 2 Section 10 (b) of the Act provides , in relevant part, "Whenever it is charged that any person has engaged in . . . any . . unfair labor practice , the Board . . shall have power to issue . a complaint . . " In construing identical language in the Wagner Act the Board stated : "The type of person or organization making the charge or the relationship between such person or organization and the individuals involved in the acts complained of are not limited by the Act." Pennsylvania Greyhound Lines, Inc., 1 NLRB 1 at 45., The Board has given the same construction to the above -quoted language from Section 10 (b) of the present Act . - Wine, Liquor, & Distillery Workers- Union, Local 1, et at., 78 NLRB 504 at 506 , enforced 178 F. 2d 584 (C. A 2). 3 A list of such customers appears as an exhibit in the record. THE OFFICE TOWEL SUPPLY COMPANY, INCORPORATED 457 91 NLRB 635; New York Steam Laundry, Inc., et at, 80 NLRB 1597 ('Supple- mental Decision) and 81 NLRB 591 (Second Supplemental Decision) ; Indian, o;polis Cleaners and Launderers Club, 87 NLRB 472. II. THE LABOR ORGANIZATIONS INVOLVED The C. I. O. and,the United Mine Workers of America, District 50 (herein called UMW) are labor organizations within the meaning of Section 2 (5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and sequence of events During the period in question the Respondent had about 85 employees at its Buffalo plant In this group there were some 55 women and 15 men employed in production and maintenance operations. In addition, the Respondent had approximately 15 men employed as truck drivers in its service department. Until the occurrence of the events out of which the instant proceedings arose the production and maintenance employees were unorganized. In 1946 the International Brotherhood of Firemen and Oilers sought to represent them but lost an election conducted by the New York State Labor Relations Board (herein called State Board)' The truck drivers, on the other hand, have been repre- sented for over 13 years by Local 449, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL. Throughout this period the Respondent and Local 449 have maintained contractual relations without incident. Prior to the initiation of the present proceeding no unfair labor prac- tice charges had ever been filed against the Respondent. During the summer of 1950 the Respondent engaged the management en- gineering firm of Stevenson, Jordan & Harrison to conduct a survey of the laundry operations in the plant, make recommendations for the more effective utilization of the Respondent's personnel,,and put into effect an incentive plan. Representatives of this firm came to the Respondent's plant in July and left on September 16. The organizational activity and the incidents out of which the charges in this case arose occurred late in the summer of 1950. On August 18 the Respondent discharged Theresa Jenifer. The following day Jenifer contacted a representa- tive of the UMW and shortly thereafter this union initiated a campaign to organize the production and maintenance employees. On about August 23, representatives of Dry Cleaners, Laundry and Linen Workers, AFL (herein called Dry Cleaners), appeared outside the Respondent's plant and distributed organizational pamphlets to the employees. On August 24, Charles C McDonald, president of the Respondent, called a meeting of the employees at which he spoke to them on the current union campaign and asked them to compare their wages and working conditions with those in organized laundries and to consider both the advantages and disadvantages' of unionization. On August 25, the UMW filed with the State Board a representation petition asking that it be designated the majority representative of the Respondent's production and main- tenance employees. Four days later that agency notified the Respondent and the Dry Cleaners of this action by the UMW. On September 1, the Respondent filed a petition with the Third Regional Office of the National Board in a pro- ceeding designated Case No. 3-RM-54. On September 7, following a conference of the parties at the offices of the State Board, McDonald spoke to his employees S The election was held pursuant to a consent agreement entered into between the Respondent and that union. 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD again. On this occasion he stated that two different unions claimed to repre- sent them , that the Respondent felt that any election to resolve the question should be handled by the National Board, that the UMW was opposed to this posi- tion, and that the entire problem was then before the State and National Boards for decision.' On September 13, the UMW notified McDonald-that unless it was granted recognition as the representative of the Respondent's employees a strike would be called the following morning. McDonald refused this request and later in the day again spoke to the employees . In explaining the Respondent's position, the plant president, stated that the entire, recognition controversy should be settled by either the National or State Board without resort to strike action. He also told the employees that because of the dispute which had arisen plans to give the employees extra holiday pay were being delayed. He added, how- ever, that "when this matter is settled , union or no union you will be paid an extra day's pay for six legal holidays throughout the year plus your regular weekly wage."' The following morning the UMW placed a picket line about the plant. At the outset of 'the strike most of the female employees re- mained away from their jobs and from 25 to 30 were in the picket line. The male employees, on the other hand, reported for duty throughout the course of the strike. The plant remained open and many of the strikers returned to work within a few days after the picketing began . In order to keep operating, however, the Respondent hired a number of replacements. On September 21 picketing was discontinued. According to Nicholas R. Patterson, field repre- sentative of the UMW, the strike- was "officially called off" on September 25. Of the 8 employees named in the complaint as having been discriminatorily re- fused reinstatement, 1 requested her former job on September 23 and the other 7 made similar requests on September 25. At the outset of the hearing the General Counsel conceded that the strike had neither been caused nor prolonged by unfair labor practices on the part of the Respondent' ' B. The discharge of Jenifer Theresa Jenifer began work for the Respondent in 1947 as a sorter in the soiled linen department. In March 1950 she was, reclassified as a lead girl in that de- partment and from then until her discharge she had three girls working under here On August 18 she was discharged. With respect to the events preceding her dismissal Jenifer testified substan- tially as follows : For a number of days before August 18 she discussed with her coworkers the need for a union in the plant and that several told her they were relying on her to get an organizational movement under way ; about 3 days before her discharge she sought, without success, to contact by telephone a representative of the C. I. O. but had no contact with that organization there- after ; in the meantime, on various occasions while in the ladies' rest room at the plant, she compiled a list of over a dozen employees who were interested in organizing a union ; during the morning recess on August 18, when most a on September 15 the Respondent and the Dry Cleaners entered into a consent election agreement in Case No 3-RM-54, but on March 6, 1951, the Regional Director dismissed the petition therein because of the pendency of the present unfair labor proceeding. 8 The General Counsel did not allege that McDonald exceeded the bounds of protected free speech in any of the three talks delivered to the employees. 7 A contrary allegation set forth in the complaint was withdrawn at the hearing by the General Counsel. e Although Jenifer was carried on the Respondent 's personnel records as a "forelady," the parties stipulated that her duties and authority were not such as would give her a supervi- sory status within the meaning of the Act. THE OFFICEi TOWEL SUPPLY COMPANY, INCORPORATED 459 of the women employees were standing on the sidewalk outside the plant, Helen Finkelstein, one of her coworkers, chided Jenifer for not having accomplished anything toward getting a union started and Jenifer replied that she was doing everything she could ; and late that afternoon McDonald called her into his office before closing time, told her he was discharging her and, during the course of the conversation, stated "if we keep you around here with the talk you are telling the girls, eventually the girls won't know what to do." It is clear that after her dismissal Jenifer became active in a drive to organize the Respondent's plant. She testified, and in this Jenifer was corroborated by one other witness, Veda E. Brownson, that late on the afternoon of August 18, and after she had been discharged, she stationed herself at a point some distance removed from the plant and there, by soliciting the employees leaving the laundry, sought to obtain a list of those interested in a union. On the day following her discharge, pursuant to the suggestion of an acquaintance that she contact the UMW, Jenifer met Patterson, with whom she discussed the prospects for an organizational campaign by his union. Thereafter, she took part in the drive for members which the UMW initiated among the Respondent's employees. When the strike began on September 14, she joined the employees on the picket line. On September 19, she filed a charge with the Board alleging that she had been discharged on August 18 because of her membership in, and activities on behalf of, the UMW. The General Counsel alleged in the complaint that Jenifer was discharged in order to discourage membership in the UMW or C. I. O. and because she had joined or assisted the UMW, the C. I. O , or engaged in other concerted activities. This was denied by the Respondent. McDonald testified that for some time prior to her discharge Jenifer had failed to cooperate with the efficiency engineers who were doing time-studies in her department, and as a result, on August 18, when Senn, his office manager, reported to him that during the recess period Jenifer had expressed great dissatisfaction with the plant and her job 9 he decided upon her dismissal. McDonald denied that at the time he had any knowledge of Jenifer's alleged sponsorship of a union movement. The undersigned is not convinced that prior to her discharge Jenifer engaged in any organizational efforts. Jenifer was not a persuasive witness and from the manner in which she testified and from her demeanor on the stand the undersigned is unable to accord any weight to her testimony on purported con- certed activities prior to her dismissal. The record is clear, and the General Counsel concedes, that it was not until the day after her discharge that she first met with an organizer for the UMW. According to her own testimony, apart from having made an unsuccessful attempt to reach an agent of the C. I. O. by telephone, she had not endeavored to contact any union representatives prior to August 19. Of course, "the 'concerted activities' protected by the Act are not limited to cases where the employees are acting through unions or are otherwise formally organized." Joanna Cotton Mills Company v. N. L. R. B., 176 F. 2d 749 (C. A. 4) ; N. L. R. B. v. Phoenix Mutual Life Ins. Co., 163 F. 2d 963 (C. A. 7) ; N. L. R. B. v. Peter Cailler Kohler Swiss Chocolates Co., Inc., 130 F. 2d 503 (C. A. 2) ; Root-Carlin, Inc., 92 NLRB 1313. Consequently any efforts which Jenifer put forth merely to lay the ground work for an organizational campaign were clearly protected under the Act. Several other employees, Adeline Ratusny, Veda Brownson, and Adeline Ciszak, testified that during the morning recess on August 18, Jenifer and Finkelstein discussed various sources of employee dis- According to McDonald , his office manager told him that Jenifer had stated during the recess : "This is a hell of a place to work. They expect one girl to do the work of five and a girl doesn't even get time to go to the ladies' room." 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD satisfaction, in particular the work of the time-study personnel, and concluded that a union was needed at the plant. But apart from this there was no other corroboration for Jenifer's testimony as to her predischarge organizational efforts. The Respondent denied having any knowledge of Jenifer's desires or plans to organize -the employees and McDonald, who testified in this connection, im- pressed the Trial Examiner as an honest and straightforward witness. This conclusion is based upon his demeanor and forthrightness on cross-examination as well as direct examination and his cooperation with the General Counsel throughout an extended cross-examination. As noted above, the undersigned found Jenifer an unreliable witness. For this reason he is not convinced that she engaged in any concerted activities prior.to the morning recess on August 18 and it is his conclusion that before that date the Respondent was unaware of any efforts on Jenifer's part to promote the organization of its employees. On the other hand, McDonald may have learned on that day when Senn reported the remark to which McDonald took exception that Jenifer and the other em- ployees, in discussing their mutual dislike for efficiency engineers, had broached the subject of unionization. Since the conversation in which Jenifer and her coworkers participated on this occasion dealt, in part, with the need for a union in the plant, in this respect, at least, it represented "concerted activity." When Jenifer was discharged later that day, McDonald's explanation for this action, by itself, would be rather implausible if Jenifer had become prominent in a move to organize the plant and if there were present a background of antiunion hostility on the part of the Respondent. Here, however, neither of these factors was present. Furthermore, McDonald's testimony with regard to Jenifer's antipathy toward the time-study engineers was borne out by her own testimony on the subject. Accordingly, it does not seem unlikely that this attitude on the part of a lead girl, from whom the Respondent might have expected a higher degree of cooperation and assistance than from the rank-and-file employees, and her expressed dissatisfaction with the plant, in fact, provoked McDonald to discharge her, rather than any remarks she may have made at the morning recess on the subject of unionization. Whether this was "A good reason, a poor reason or no reason at all" is immaterial "so long as the provisions of the Act are not violated." Budd Mfg. Co. v. N. L. R. B., 138 F. 2d 86, 90 (C. A. 3), cert. den. 321 U. S. 773. Consequently, although the issue is not free from doubt, the undersigned concludes and finds that on the record presented here a preponder- ance of the evidence does not support the allegation that Jenifer was discharged in violation of Section 8 (a) (3) and (1) of the Act. C. The issues with respect to the Respondent's failure to reemploy the eight alleged discriminatees subsequent to the strike; conclusions with respect thereto Since the work stoppage which began on September 14 was neither caused nor prolonged by any unfair labor practices on the part of the Respondent it must be considered an economic strike. During its course the Respondent kept the plant in operation and hired a number of new employees. McDonald credibly testified, without contradiction, that the replacements were hired as regular em- ployees on a permanent basis. On September 23, Adeline Ratusny, and on Sep- tember 25, Eleanor G. Brown, Veda E. Brownson, Adeline Ciszak, Anna Cyran- kowska, Helen Gasiewicz, Clara Lacombe, and Lorraine Wild, all striking-em- ployees, applied for their former jobs and were informed by the Respondent that they had been replaced. In an economic strike the employer has a "right to protect and continue his business by supplying places left vacant by strikers ; and he is not bound to discharge those hired to fill the places of strikers, upon THE OFFICE, TOWEL SUPPLY COMPANY, INCORPORATED 461 the election of the latter to resume their employment, in order to create places for them." N. L. R. B. v. Mackay Radio & Telegraph Co., 304 U. S. 333, 345-346. Consequently, the immediate issue to be determined is whether the positions formerly held by these eight strikers had been filled during the period they remained away from work. The five departments in which they were employed prior to the strike will now be considered. 1. Linen seamstress department Prior to the strike three girls, Helen Gasiewicz, Eleanor Brown, and Barbara Kolb, worked as seamstresses in this department. The first two joined in the strike but Kolb appears to have been one of the few employees who did not. On September 25 when Gasiewicz and Brown sought reemployment, McDonald told them that he had no work available 1o In explanation of the Respondent's refusal to take back these two employees, McDonald credibly testified that in their report the efficiency engineers " recommended that the Respondent employ only one linen seamstress, that this recommendation was adopted, and that since the strike the Respondent has had only Kolb as the one employee in this department. In. the light of the foregoing the undersigned concludes that at the time of their application for reemployment on September 25 the jobs formerly held by Gasie- wicz and Brown were no longer in existence. 2. Route girl department Before the strike Anna Cyrankowska and five other girls were employed in this department. Cyrankowska joined in the strike and on September 25 sought reem- ployment. In an interview with her on that date McDonald told her that she had been replaced." From the record it appears that during the month of September the route girl department had the following composition : Employees before strike Employees after strike First day worked after being hired or re- employed Jane Wojcik Emma Durshordwe Elsie Kibler Emma Durshordwe Elsie Kibler September 15 Mary Dorothy Murray Mary Dorothy Murray 18 Jean Dio 19 Natalie Galus Natalie Galus 22 Geraldine Lukowski 25 Emily Przewleckly 25 Anna Cyrankowska Total 6 'Never on strike. 7 McDonald credibly testified that both Lukowski and Przewleckly, the two employees listed above as having reported for work on and after September 25, had been hired the preceding week. As to ' Lukowski, McDonald further tes- tified that she was a minor and due to her age could not be put to work ]U Brown testified that at the time McDonald told her that her job had been filled, he also told her that if he needed a girl "he would either send me a card or send a driver for me." McDonald denied making any such commitment . His denial is credited. Oasiewiez, who impressed the undersigned as a sincere and credible witness, did not testify as to McDonald's having made any such promise in his conversation with her. " The management engineering firm completed its work at the plant on September 16. 12 Cyrankowska's further testimony that on this occasion McDonald told her that "if he needed me he would send for me" was denied by McDonald . His denial is credited. 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD until September 25 when the necessary work permit was obtained for her from the local authorities. From these facts it is apparent, and the undersigned ends, that on September 25 when Cyrankowska applied for reemployment there were no vacancies in the route girl department. 3. Press department Ciszak and Wild were employed in this department before the strike. On September 25 when they asked McDonald to take them back he told them that their jobs had already been filled and that there was no work available." During the month of September, the press department had the following personnel: (1) Employees before strike (2) Employees after strike (3) First day worked after being hired or re- employed Pearlina Johnston Alf A Alf* Anne Jean Piatek Emily Dychowski nne Jean Piatek * Emily Dychowski September 15 Helen Finkelstein Grace Miller Helen Finkelstein Grace Miller `I 15 II 15 Louise Butler II 20 Wilhelmina Witkop Wilhelmina Witkop II 21 Florence Whitson 21 Earline Carter II 21 Johnnie Cranin ii 21 Susanne Machajewski II 21 Jessie Keenon Jessie Keenon On vacation, week Dora Matthews Dora Matthews of September 25 September 25 Lurline McClain Lurline McClain 'C 25 Elvana Staton Elvana Staton 25 Frances Gwerski Frances Gwerski if 26 Pauline Smolarek Pauline Smolarek u 26 Jeannette Epps Jeannette Epps II 27 Adeline Ciszak Lorraine Wild Total 16 *Never on strike. 18 McDonald testified'that no one was hired during the week of September 25, but that several who were hired the preceding week did not report for several days because they were not needed immediately. During the strike the Re- spondent had been compelled to contract with competitors to do much of its work. According to McDonald, when the picket line was withdrawn on September 21, several days elasped before the plant operations could be returned to normal, -due to the Respondent's inability to break off -all such contractual arrangements at once. As a consequence of this, McDonald stated that several of the strikers who sought work immediately after September 21 were told they could have their old jobs but that they need not report for work until various dgtes fixed in the following week. McDonald testified -that all of those listed in }e Wild also testified that in her conversation with McDonald on this day, he told her "if he needed me he would call me." This was denied by McDonald. His denial is credited. Ciszak, who spoke to McDonald the same day ,- did not claim that he made any I)ronidse to contact her in the event a vacancy arose. THE OFFICE TOWEL SUPPLY COMPANY, INCORPORATED 463 column (2), above, who came to work on and after September 25, had asked for reemployment at various times during the preceding week, that he had promised these employees that they could return, and that as a result when Ciszak and Wild contacted him for the first time on September 25 he already had a full complement for the press department. It is significant that those who came to work in the department during the week of September 25 had participated in concerted activities to the same degree as both Ciszak and Wild. Keenon, Matthews, McClain, and Staton were out on strike and Ciszak testified that Smolarek, Gwerski, and Epps had been on the picket line with her. Since McDonald's testimony in regard to this department was uncon- tradicted and, further, impressed the Trial Examiner as being credible, it will be accepted. Accordingly, on the foregoing facts the undersigned concludes .and finds that at the time Ciszak and Wild sought reemployment their former jobs had been filled. 4. Ironing department Prior to September 14, Lacombe was employed in this department. On that date she joined the strikers and participated in the picketing. On September 25, she returned to the plant and asked for her old job. McDonald told her that she had been replaced" From the record, it appears that during the month of September the following were employed in the ironing department : First day worked Employees before strike Emyees after strike after betny hired or reemployed Stella Blodzinski Jane Bujnicki Florence Drdul M G ary reen Bernadine Iwinski Genevieve Waz Alice Cora Cecilia Seltz- lice Cora* Cecilia Seltz eptember 15 Jean Badgett Mildred Hawkins Jean Badgett Mildred Hawkins It 18 II 18 Rosalind Bianchino it 19 Norma Piatek Norma Piatek it 19 Edna Piscitello it 19 Mary Pezzino tt 19 Alice Babicz tt 20 Mary Braymiller it 20 Lorraine Ignatowska It 21 'Shirley Fay Shirley Fay tt 25 Frances Golda Frances Golda tt 25 Agnes Wojchichowski Agnes Wojchichowski it 25 Mary Romanko Mary Romanko tt 26 Hattie Kruczynski Hattie Kruczynski tt 27 Bertha Surdy Bertha Surdy tt 27 Clara Lacombe Total 18 'Never on strike. 17 1' Lacombe testified that the plant president told her at this time that "if he needed me he would call me." McDonald denied that he ever gave her any such assurance. Lacombe's account of this conversation was not convincing to the Trial Examiner. Ac- cordingly, McDonald's testimony in this connection is credited. 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD McDonald credibly testified that the management engineering firm, in its re- port, recommended that the work in this department could be handled more efficiently with only 16 employees. Consequently, the number of permanent employees was reduced from 18- to that level " By reference to the chart above it will be seen that on September 25, 26, and 27, Fay, Golda, Wojchichowski,' Romanko, Kruczynski, and Surdy came back to, work. According to McDonald, all had asked for reemployment during the preceding week and had been promised their former jobs. If McDonald's testimony is accepted then one must conclude that when Lacombe applied on September 25 there were no vacancies. In weighing the allegation that La- combe was discriminated against for her concerted activities it is noteworthy that according to her own testimony Golda was among the strikers and Fay, Wojchichowski, Romanko, Kruczynski, and Surdy had been with Lacombe on the picket line. In the light of these facts, and McDonald's testimony, the undersigned concludes and finds that Lacombe was not reemployed on Sep- tember 25 because there were no vacancies in the ironing department and not because of any desire to discriminate against her for participating in the strike. 5. Laundry seamstress department Prior to the strike Bronson and Ratusny worked as seamstresses in the. laundry. Ratusny testified that on September 23 she telephoned Duerr, superintendent of the laundry, to ask whether she could return to work, and that he told her, "No, because you had no business in the picket line." Ac- cording to Ratusny, Duerr added, "What do you want to do? Get these racketeers in here and help them run this place?" and concluded the conversa- tion with the remark that Ratusny's reemployment was out of his hands and up to McDonald. Ratusny testified that she then called McDonald and that he told her, "Adeline, you don't know how much you have hurt me through the strike," and that when asked about her job he said, "Well, we have another girl in your place. If this girl don't pan out I will call for you." Duerr did not take the stand but McDonald denied the accuracy of Ratusny's testimony as to her, conversation with him almost in its entirety. According to McDon- ald his only response to her request at the time she telephoned was "Well, I am sorry, Adeline, but you have been replaced." Ratusny was not a per- suasive witness, and in the opinion of the undersigned lacking in candor.16 As has been noted above, McDonald impressed the Trial Examiner as a credible witness. Consequently, McDonald's testimony as to this conversation is ac- cepted as the more accurate version. Brownson returned to the plant on September 25. In an interview that morning, McDonald told her that her job, had been filled." 35 Wojchichowski who came back to the plant on September 25 worked only 1 day. Upon her departure the number of employees in this department was down to 16. 39 Because of this lack of confidence in Ratusny's credibility the undersigned is likewise unable to accord any weight to her testimony an the purported conversation with Duerr. 37 Brownson testified that McDonald also told her that "if he needed me he would call me." McDonald denied that he made any such promise Brownson's manner on the witness stand was neither candid nor convincing Consequently, McDonald's denial is credited THE OFFICE TOWEL SUPPLY COMPANY, INCORPORATED 465 The record discloses the following as to the personnel in the laundry seam- stress department: Employees before strike Employees after strike First day worked after being hired or reemployed Sophie Iwinski Ida Davis September 21 Anna Varga 11 21 Kathleen Hunter 22 Stella Nowatka Stella Nowatka 22 Francis Rosinski Francis Rosinski It 25 Veda Brownson Adeline Ratusny Total 5 5 McDonald testified that subsequent to the withdrawal of the picket line and before September 25 the Respondent acquired a full complement of employees, that no one was hired on September 25, and that the old employees who came back to work for the first time on that day had been promised their former jobs during the preceding week and after the cessation of the picketing. Sep- tember 25 was Rosinski's first day of work after the strike. Brown testified that at the time she, Brownson, Wild, and Lacombe went to the plant on that morning Rosinski was with them. Other than stating that Rosinski ac- companied them into the plant, however, nothing further, such as whether she also asked McDonald for reemployment on that occasion or went to work pur- suant to a previous arrangement, appears in Brown's testimony. Since there is no clear evidence as to when Rosinski was promised reemployment, it is impossible to determine the precise time on September 25 or prior thereto that the prestrike complement of five laundry seamstresses was reached. However, if McDonald's testimony is accepted it is plain that on September 25 when Brownson applied, her job had been filled. As for Ratusny, although McDonald testified that he told her on September 23 that another person had her job, at the hearing he could not recall which employee had replaced her. On the other hand, the record does not bear out the allegation that at the time Ratusny sought reinstatement, the Respondent discriminated against her for having gone on strike. At the very most there could not have been more than one job open on September 23, for prior to that date three replacements had been hired and Nowatka had returned. Apart from having been on strike and having partici- pated in the picketing, neither Ratusny nor Brownson had engaged in any other, significant union activities nor had they done anything which would distinguish them from all the rest of the employees who had joined in the UMW strike. Both testified that Nowatka and Rosinski were on strike with them and, according to Brownson, -both Nowatka and Rosinski were on the picket line. On the record here there seems no basis for concluding that Rosinski was given preferment for the one remaining job in order to penalize either Ratusny or Brownson for their participation in the strike. Consequently, the under- signed accepts as credible McDonald's testimony that Ratusny had been replaced before she called on September 23, and that there was no vacancy in the laundry seamstress department when she applied on that day, or for Brownson when the latter came to the plant on September 25. Concluding Findings From the facts set forth above it is the conclusion of the undersigned that by the time the eight employees named in the complaint sought reemployment 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from the Respondent their jobs had already been filled. A further question remains, however, with respect to whether the Respondent discriminated against this same group in not hiring them for vacancies which arose in the months thereafter. The General Counsel presented evidence that six new employees were hired in October," three in November, and one in December, and further, that on November 21, the Respondent advertised in a Buffalo newspaper for employees in the ironing department. However, no evidence was presented which would indicate that the vacancies arising in the 3 months subsequent to the strike were unusual in number or caused by any factor other than normal turnover. McDonald conceded that he never asked any of the eight employees in question to come back even though some of them could have filled certain of the jobs which became available in the 3-month period following the strike. The General Counsel argued that in the normal course of events the Respondent would have rehired at least some of these employees and that it did not do so only because it had determined never to reinstate any of them because of their participation in the strike. The Respondent denied that its treatment of the members of this group differed in any manner from that customarily afforded all former employees. McDonald credibly testified that the Company had no settled practice for filling vacancies, that no reemployment lists of any kind were ever kept, and that when an opening arose the matter of a replace- ment was left entirely to the department head involved. He further testified that he informed the department heads that this group of eight people would be available for employment and he denied that he ever instructed any supervisory personnel to pass them over in filling vacancies. Once it appears that economic strikers have been replaced before they make application for reemployment an employer is not obligated to provide further job opportunities for them. Of course, he is not free, in filling vacancies that arise thereafter, to place strikers in a special category because of their protected concerted activity so as to discriminate in favor of other job applicants, nor may he deny them any consideration that he would customarily give to former employees. Normally, it would seem that a plant management would prefer to have experienced former employees rather than new and untried personnel. The record here, however, does not bear out the General Counsel's contention that but for their concerted activities these eight employees would have been recalled at least to fill some of the openings which became available in the 3-month period subsequent to the strike. Although occasionally the Respondent had recalled laid-off employees it is clear that the Company had no established procedure for recall of former employees on a seniority basis or otherwise. As has been found above, at the time these eight employees applied to McDonald in September he gave them no assurance that they would be hired as work became available. And after September 25 none of them ever again applied for work at the Respondent's plant.18 Furthermore, there is nothing in the record which would indicate that the members of this group were any more prominent in union activities during the strike than any of the other strikers who were reemployed prior to September 25 or that the Respondent at any time manifested a fixed resolve to penalize them for their support of the UMW during this period. Consequently, the undersigned concludes and finds that there is not a preponderance of evidence in the record in this case to support the allegation that the Respondent discriminatorily refused to consider Brown, Brownson, Ciszak, Cyrankowska, Gasiewicz, Lacombe, Ratusny, and Wild, for vacancies which arose in the months subsequent to the strike. 18 One of this number, however, worked only 3 days. 19 None of them testified to having seen the Respondent's "Help wanted" advertisement which appeared in the Buffalo papers on November 21. KEESHIN POULTRY COMPANY 467 D. The alleged interference, restraint, and coercion The complaint alleged that the Respondent had "threatened and warned its employees to refrain from assisting, supporting, becoming members of, or remaining members of the UMW." 20 The General Counsel conceded that this allegation was based largely upon the evidence relating to the discharge of Jenifer and the refusal to reinstate the eight other employees named in the complaint. In view of the findings and conclusions set forth above, however, the under- signed concludes and finds on the record herein that the Respondent did not interfere with, restrain, or coerce its employees in violation of the rights guaranteed in Section 7 of the Act. Upon the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW 1. The Respondent, The Office Towel Supply Company, Incorporated, is en- gaged in commerce, within the meaning of Section 2 (6) and (7) of the Act. 2. The C. I. O. and the UMW are labor organizations within the meaning of Section 2 (5) of the Act. 3. The Respondent has not engaged in unfair labor practices as alleged in. the complaint, within the meaning of Section 8 (a) (1) and (3) of the Act. Recommendations Upon the basis of the foregoing findings of fact and conclusions of law, the- undersigned recommends that the complaint be dismissed in its entirety. R0 At the hearing, the undersigned granted a motion by the General Counsel to delete from the complaint an allegation that the Respondent had "coerced, persuaded and solicited employees individually to return to work and abandon their concerted activities and desert the UMW." KEESHIN POULTRY COMPANY and AMALGAMATED MEAT CUTTERS AND- BUTCHER WORKMEN OF NORTH AMERICA , AFL. Cases Nos. 32-CA-156 and 32-RC-299. December 12, 1951 Decision, Direction and Order On June 8, 1951, Trial Examiner David F. Doyle issued his Inter- mediate Report in the above-entitled consolidated proceedings, find- ing that the Respondent had engaged in and was engaging in certain unfair labor practices in violation of the Act, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate 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 this allegation of the complaint. The Trial Examiner recommended, further, that the challenge to the ballot of Charles P_ Herd be overruled and his ballot opened and counted, and that, if the Union did not thereafter withdraw its objections to the election held on December 6, 1950, among the Respondent's employees, 97 NLRB No. 70.