Technical Porcelain and Chinaware Co.

TECHNICAL PORCELAIN AND CHINAWARE COMPANY 21 nical employees, survey crew, watchmen, guards, pipe connection crew pushers, workover rig pushers, roustabout pushers, rig builders subforemen, rotary drillers, and all other supervisors as'defined in the Act, constitute a unit appropriate for purposes of collective bargain- ing within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication in this volume.] MEMBERS STYLES and PETERSON took no part in the consideration of the above Supplemental Decision and Direction of Election. ANTONE PAGLIERO, JOHN PAGLIERO, AND ARTHUR J. PAGLIERO, CO-PARTNERS, D/B/A TECHNICAL PORCELAIN AND CHINAWARE COM- PANY and CHEMICAL WORKERS UNION, LOCAL 266, MINE, MILL AND SMELTER WORKERS UNION. Case No. 20-CA--566. May 9, 1952 Decision and Order On November 1, 1951, Trial Examiner Irving Rogosin issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudical error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following additions and modifications. The Trial Examiner has found, and we agree, that the Respondent furnished aid and assistance to Local 165, National Brotherhood of Operative Potters, AFL, in violation of Section 8 (a) (1) and (2) of the Act. Like the Trial Examiner, we base our finding in this respect upon the fact that the Respondent accorded continuing effect, after November 19, 1950, to a contract with Local 165 containing illegal union-security provisions. In the usual case of this sort the Board, as the Trial Examiner has recommended, orders that the respondent cease giving effect to such a contract, and withhold recog- .99 NLRB No. 4. 215233-53-3 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nition from the labor organization involved unless and until such labor organization shall have been certified by the Board. However, since the hearing herein certain events have transpired which now render the usual remedy inappropriate. A month before the Trial Examiner issued his Intermediate Report, the charging party, Chemical Workers Union, Local 266, Mine, Mill and Smelter Workers Union, filed a petition for certification of rep- resentatives covering the Respondent's production and maintenance employees. After the issuance of the Intermediate Report, the Chem- ical Workers waived its right to protest any election conducted by the Board on any grounds set forth in the instant case. In its waiver the Chemical Workers further agreed that the Operative Potters be permitted a place on the ballot and be eligible for certification in the event it won the election. Acting upon this waiver and the Chemical Workers' request for an early election, the Board on February 28, 1952, directed an election in the representation case before reaching a decision in the instant case, a procedure which would not normally be followed absent such a waiver and request. Of the 197 eligible voters, 133 voted for the Operative Potters, 53 for the Chemical Workers. Accordingly, on March 21, 1952, the Operative Potters was certified as bargaining representative for the Respondent's production and maintenance employees. In the circumstances, an order that the Respondent cease recognizing the Operative Potters until certified by the Board would be inapposite. We shall therefore confine our Order, with respect to the violation of Section 8 (a) (2), to a general interdiction that the Respondent not enter into or continue in force any collec- tive bargaining agreement which contains union-security provisions beyond the scope of those authorized in Section 8 (a) (3) of the Act. Order Upon the entire record in this case and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that Antone Pagliero, John Pagliero, and Ar- thur J. Pagliero, co-partners, d/b/a Technical Porcelain and China- ware Company, El Cerrito, California, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Entering into or according continuing effect to any collective bargaining agreement which contains union-security provisions not authorized by Section 8 (a) (3) of the Act. (b) Discouraging membership in Chemical Workers Union, Local 266, Mine, Mill and Smelter Workers Union, or any other labor or- TECHNICAL PORCELAIN AND CHINAWARE COMPANY 23 ganization, 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. (c) Interrogating its employees concerning their union affiliation, activities, sympathies, or attendance at union meetings, or in any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organi- zations, to join or assist Chemical Workers Union, Local 266, Mine, Mill and Smelter Workers Union, 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 protec- tion, or to refrain from any and all such activities except to the extent that such right may be affected by an agreement requiring member- ship in a labor organization as a condition of employment, as author- ized 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 Margueritte Hoyt immediate, and full reinstatement to her former or substantially equivalent position without prejudice to her seniority or other rights and privileges, and make her whole for any loss of pay she may have suffered by reason of the discrim- ination against her, in the manner provided in the Intermediate Report. (b) Upon request make available to the National Labor Relations Board or its agents, for examination and copying, all payroll records, social security payment records, time cards, personnel records and re- ports, and all other records necessary to analyze the amount of back pay due. (c) Post at its plant in El Cerrito, California, copies of the notice attached hereto marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Twentieth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Twentieth Region, in writing, within ten (10) days from the date of this Order what steps the Respondent has taken to comply herewith. 'In the event this Order is enforced by a decree of the United States Court of Appeals, there shall be inserted in the notice before the words "A Decision and Order ," the words "A Decree of the United States Court of Appeals Enforcing." 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, as amended, we hereby notify our employees that: WE WILL NOT enter into or accord continuing effect to any collective bargaining agreement which contains union-security provisions not authorized in Section 8 (a) (3) of the National Labor Relations Act. WE WILL NOT discourage membership in CHEMICAL WORKERS UNION, LOCAL 266, MINE, MILL AND SMELTER WORKERS UNION, or any other labor organization of our employees, nor will we en- courage membership in any labor organization of our employees, by discriminatorily discharging or in any other mannep discrim- inating in regard to the hire or tenure of employment or any term or condition of employment of our employees. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist CHEMICAL WORKERS UNION, LOCAL 266, MINE, MILL AND SMELTER WORKERS UNION, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in collec- tive bargaining or other mutual aid or protection, or to refrain from any or all 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, to the extent per- mitted by Section 8 (a) (3) of the Act. WE WILL offer MARGUERITE HoYT immediate and full reinstate- statement to her former or susbtantially equivalent position with- out prejudice to any seniority or other rights and privileges pre- viously enjoyed, and make her whole for any loss of pay suffered as a result of said discrimination. All our employees are free to become or remain, or refrain from becoming or remaining, members of Chemical Workers Union, Local 266, Mine, Mill and Smelter Workers Union, or any other labor organ- ization, except to the extent that such right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act. We will not discriminate in regard to the hire and tenure of employment or 'TECHNICAL PORCELAIN AND CHINAWARE tCOMPANY 25 any term or, condition of employment against any employee because of membership in or activity on behalf of any labor organization. ANTONE PAGLIERO, JOHN PAGLIERO, AND ARTHUR J. PAGLIERO , CO-PARTNERS, D/B/A TECHNICAL PORCELAIN & CHINA- WARE COMPANY, 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 This complaint, based upon a first amended charge, filed May 18, 1951, by Chem- ical Workers Union, Local 266, Mine, Mill and Smelter Workers Union, affiliated with International Union of Mine, Mill and Smelter Workers, herein called the Union, was issued on June 8, 1951, by the General Counsel of the National Labor Relations Board, herein called the General Counsel' and the Board, respectively, against Antone Pagliero, John Pagliero, and Arthur J. Pagliero, co-partners, doing business as Technical Porcelain and Chinaware Company, herein collectively called the Respondent. A copy of the original charge, filed March 8, 1951, was served on the Respondent ; copies of the first amended charge, the complaint, and notice of hearing, were served upon all the parties. The complaint alleges, in substance, that the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1), (2), and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, as amended (61 Stat. 136), herein called the Act by: (1) Executing a memorandum agreement, under date of December 1, 1949, with Local Union No. 165, National Brotherhood of Operative Potters, AFL, herein called Local 165, or the Operative Potters, extending, with certain modifi- cations not here material, to December 1, 1951, a collective bargaining agree- ment between the Respondent and the Operative Potters, dated October 9, 1946, by the terms of which all new and/or inexperienced production and main- tenance employees were required to affiliate with said unit not later than the thirty-first day of their employment, or immediately upon acceptance of em- ployment with the Respondent, at the option of said union, notwithstanding that said union had not been authorized by an election among the Respondent's production and maintenance employees, pursuant to Section 9 (e) of the Act, to enter into an agreement requiring membership in such labor organization as a condition of employment. (2) Continuing in effect the said union-security provisions, at all times since November 19, 1950, a date 6 months before the filing and service of the first amended charge, until December 1, 1951. (3) Interrogating its employees, during February 1951, concerning their activities on behalf of the Union. 1 Unless otherwise indicated or required by the context , all references to the General Counsel herein are to his representative at the hearing. 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (4) Discharging Marguriette Hoyt on February 19, 1951, because of her activities on behalf of the Union, thereby discriminating in regard to her hire or tenure of employment to discourage membership in a labor organization. (5). By the foregoing conduct, interfering with, restraining, and coercing its employees in the exercise of rights guaranteed them by Section 7 of the Act. The Respondent, appearing at the outset of the hearing without counsel, through one of the copartners, and having failed to file a formal answer, was permitted, with the consent of the General Counsel, to state his answer to the allegations of the complaint orally on the record. In this informal answer, the Respond- ent admitted generally the material allegations of the complaint, including the discharge of Marguriette Hoyt on or about February 19, 1951, denying how- ever, that the discharge was because of her activities on behalf of the Union, and asserting that the reason therefor was her failure to carry out orders and instructions. Further answering, the Respondent denied generally that it had engaged in any unfair labor practices. After the conclusion of the General Counsel' s case, the Respondent decided to retain counsel, who thereupon entered his appearance and moved to amend the Respondent's answer to allege affirmatively that the union-security pro- visions of the contract had at no time been enforced. The motion was granted. Pursuant to notice, a hearing was held at San Francisco, California, on July 17, 18, 23, and 24, 1951, before the undersigned duly designated Trial Examiner. The General Counsel and the Union were represented by counsel ; the Respondent, at first, by one of the copartners, later, by counsel ; and the Operative Potters, by one of its representatives 2 All parties participated in the hearing, were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence relevant and material to the issues involved. The General Counsel and the Respondent availed themselves of the opportunity afforded all parties to argue orally on the record at the close of the evidence, but all declined the opportunity to file briefs and proposed findings of fact and conclusions of law. At the close of the hearing, motion of the General Counsel to conform the pleadings to the proof with respect to formal matters not affecting the substantive issues was granted without objection. Upon the entire record in the case, and upon. his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Antone Pagliero, John Pagliero, and Arthur J. Pagliero, copartners, doing business as Technical Porcelain and Chinaware Company, are engaged at their plant and principal place of business at El Cerrito, California, in the manu- facture and sale of chinaware for use in hotels and restaurants. During the year 1950, the Respondent manufactured and sold chinaware valued in excess of $300,000, of which more than $40,000 in value was shipped from its plant at El Cerrito to purchasers outside the State of California. The Respondent concedes that it is engaged in commerce within the meaning of the Act. 8 Although indicating initially that he was appearing merely as an observer on behalf of the labor organization which he represented , this union representative later moved to intervene. The motion was granted to the extent of the Operative Potters' interest in the contract involved in this proceeding. TECHNICAL PORCELAIN AND CHINAWARE COMPANY II. THE ORGANIZATIONS INVOLVED 27 Chemical Workers Union , Local 266 , Mine, Mill and Smelter Workers Union, affiliated with International Union of Mine, Mill and Smelter Workers, and Local Union No. 165, National Brotherhood of Operative Potters, AFL, affiliated with the American Federation of Labor , are labor organizations admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Background; support and assistance to the Operative Potters Although there is no showing in the record as to the manner in which the Operative Potters achieved its status, the Respondent has recognized that labor organization as collective bargaining representative of its production and maintenance employees since 1921. The father of the individual copartners, and- predecessor of the present firm, had accorded that labor organization recognition as early as 1914. Collective bargaining agreements have been executed between the Respondent and the Operative Potters at least since 1929. Although not a member of the United States Potters Association, an employer organization of pottery manufacturers, herein called the Association, the Respond- ent and the Operative Potters have for many years adopted, and incorporated by reference, in separate collective bargaining agreements, with modifications, the wage rates, denominated as the "Wage Scale and Size List," and other terms and conditions contained in the master agreement between the Association and the Operative Potters. Since 1938, the collective bargaining agreements between the Respondent and the Operative Potters have contained union-security provisions similar to those under attack here. Under date of October 9, 1946, the Respondent and the Operative Potters executed a new collective bargaining agreement for a term of 2 years from October 1, 1946, to correspond with the duration of the collective bargaining agreement between the Association and the Operative Potters, and adopting the wage scale and size list contained in the master agreement, effective October 1, 1946, except as qualified by the separate agreement between the parties. With respect to union security, the contract, referred to herein as the 1946- 1948 contract, provided : It is hereby agreed by the parties hereto that all new and/or inexperienced production and maintenance employees after having completed a thirty (30) day service period with the said COMPANY and thereafter are still retained in the employment of said COMPANY they shall affiliate with the UNION not later than the thirty-first day of their employment service record with the COMPANY, this clause specifies the maximum period of time an employee may work for the COMPANY without affiliating with the UNION. However, the UNION shall be privileged to insist upon individuals affiliating with the UNION immediately they accept employment with the COMPANY. Also contained was a provision for voluntary written checkoff of all dues and fines owed the Operative Potters by the employee members, as shown by a list to be submitted by the financial secretary of said union. For this service, the Respondent was permitted to retain 10 percent of the amount collected. The 1946-1948 contract, the latest completely rewritten contract between the parties, was amended several times to conform to wage adjustments and holiday pay arrived at by negotiations between the Association and the Operative Potters. 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The basic provisions of the 1946-1948 contract, including the union-security provisions and the term of the contract, however, remained unchanged. The successive amendments were attached to the contract as "appendices." Under date of December 1, 1949, the existing agreement between the parties was further amended, by an "addition to the 1946-1948 contract," to conform to wage adjustments provided for in the outstanding collective bargaining agreements between the Association and the Operative Potters for the term October 1, 1949, to October 1, 1951. By the terms of this amendment the parties agreed to "recognize and comply" with the said industry agreements during the stated period with relation to "piece work and day wage rate of pay, hours of employment and working conditions." The amendment, effective December 1, 1949, for a term of 2 years, until December 1, 1951, and subject to reopening by either party at any time upon 30 days' written notice, left the union-security provisions, quoted above, as well as the remaining provisions of the 1946-48 contract, undisturbed. On November 11, 1950, the parties negotiated a further general wage increase, effective December 1, 1950, which was reduced to writing. At the time of the hearing, the 1946-48 contract, as amended and extended by the memorandum of agreement, dated December 1, 1949, and modified by the memorandum, dated November 11, 1950, was in full force and effect, and governed the collective bargaining relations of the parties. It is, therefore, clear that at all times material herein there was in effect at the Respondent's plant a collective bargaining agreement with the Operative Potters providing for union security, notwithstanding that, as has been conceded, no election had ever been held or petitioned for under Section 9 (e) of the Act, authorizing the Operative Potters to make an agreement with the Respondent requiring membership in that labor organization as a condition of employment 8 In its informal answer, stated orally for the record, the Respondent admitted the allegations of the complaint that the Respondent, at all times since November 19, 1950, a date 6 months before the filing of the first amended charge, had con- tinued in effect the union-security provisions contained in the collective bar- gaining agreement, dated October 9, 1946. Antone A. Pagliero, copartner, in charge of sales and supervision, testified to substantially the same effect, when called as an adverse witness by the General Counsel. After retaining counsel in this proceeding, however, the Respondent amended its answer to allege that the union-security provisions had never actually been enforced. Later, when called as a witness for the Respondent, Pagliero testified, in effect, that the union-security provisions had not in fact been enforced for a period of 5 years before August 1947, or since. No employee, according to him, had been discharged, laid off, suspended, or terminated during either period because of non- 3 Inasmuch as the 1946-1948 agreement was renewed or extended after the effective date of the Act, the Respondent cannot rely on the immunity afforded by the savings provisions of Section 102 of the Act, which provides : No provision of this title shall be deemed to make an unfair labor practice any act which was performed prior to tbe,date of the enactment of this Act which did not constitute an unfair labor practice prior thereto, and the provisions of section 8 (a) (3) and section 8 (b) (2) of the National Labor Relations Act as amended by this title shall not make an unfair labor practice the performance of any obligation under a collective-bargaining agreement entered into prior to the date of the enactment of this Act, or (in the case of an agreement for a period of not more than one year) entered into on or after such date of enactment, but prior to the effective date of this title, if the performance of such obligation would not have constituted an unfair labor practice under section 8 (3) of the National Labor Relations Act prior to the effective date of this title, unless such agreement was renewed or extended subsequent thereto. TECHNICAL PORCELAIN AND CHINAWARE COMPANY 29 membership in Local 165, and, he testified, the union had never requested him to do so. George Pace, national representative of the Operative Potters, and a wit- ness for the Respondent, also testified that at no time since 1946 had the Union requested the Respondent to enforce the union-security provisions of the col- lective bargaining agreement, and that, to his knowledge, those provisions had never been enforced by the Respondent. Rowland V. ("Rip") Van Winkle, a shop committee man since the effective date of the Act, called as a witness by the Respondent, testified, however, that Local 165 maintained a shop steward at the plant, designated for the purpose by the president of the Local, who notified new employees at the end of 30 days of the requirement of union membership, and solicited them to join. Nevertheless, according to Van Winkle, no action was taken by the Respondent, to his knowledge, and none was requested by Local 165, with respect to the tenure of employment of employees who failed or declined to join the Union at the end of the prescribed period. Furthermore, Van Winkle testified, neither the requirement of union membership nor the question of en- forcement of the union-security provisions was ever discussed at union meetings. Singularly, Union Representative Pace also testified that he had never discussed with the Respondent the question of enforcement of the union-security provisions from the time the contract was executed, and that the Union had never, to his knowledge, notified the Respondent of the dues delinquencies of its members who were employed by the Respondent. Conceivably, the occasion for notifying the Respondent of such delinquencies may never have arisen , especially in view of the provision in the contract for voluntary checkoff. Nevertheless, the testimony of the Respondent's witnesses, that the subject of enforcement of the union- security provisions was never discussed between the Respondent and Local 165, strains one's credulity. According to Antone Pagliero , there were approximately 200 nonsupervisory production and maintenance employees in the Respondent's employ at the time of the hearing. With the exception of the latter part of 1946, when operations were interrupted by a fire at the plant, the complement of employees was about the same, on the average , from 1946 to 1948. Of the 200 employees in the Re- spondent's employ at the time of the hearing, Pagliero estimated, 2 to 5 percent had been hired during the preceding 30-day period. Shop Committeeman Van Winkle testified that at the time of the hearing there were about 125 members in Local 165. Thus, it would appear that, assuming that all the members were employees of the Respondent , there were approximately 75 employees who were not members of Local 165, disregarding the 4 to 10 employees, according to Pagliero's estimate , who were then employed less than 30 days. In addition, Pagliero testified that he knew of employees who had been work- ing for the Respondent for more than 2 years without having been required to join Local 165. Pressed for the identity of such employees , Pagliero was able to name only one, a maintenance employee in the clay shop , who had voluntarily terminated his employment on May 11, 1951. Pagliero testified that he had questioned this employee when he hired him on December 30, 1945, and learned that he had not been affiliated with any union. The employee did not thereafter, according to Pagliero , join Local 165 during his, employment with the Respond- ent. Pagliero further testified that although this was the only employee who had not been a member of the union , of whom he had a record at the hearing, he could produce the names of others if time permitted . Neither he nor Re- spondent's counsel, however, made any request or application for an opportunity to do so before the close of the hearing. The undersigned has considered the evidence regarding the alleged failure to enforce the union-security provisions here involved , but concludes that it 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is insufficient to overcome or nullify the effect of the plain provisions of the contract, of which new employees undoubtedly learned, at least through the union shop steward, upon the expiration of 30 days after their initial employ- ment. Significantly, despite the Respondent's contention that the union-security provisions of the contract had not been enforced, the Respondent at no time notified its employees that they might disregard those provisions without Jeop- ardy to their jobs, or that the Respondent had no intention of observing or enforcing the provisions in question. The Board has said, in a comparable situation, As the union-shop provision does not-satisfy the conditions laid down in the proviso to Section 8 (a) (3), it is illegal, even if no action has been taken pursuant to it. The mere existence of such a provision acts as a restraint upon those desiring to refrain from union activities within the meaning of Section 7 of the Act, and is evidence that the [Union] and the Employer are in accord in denying employment to those who refuse to join the Union within the required time.' Such conduct has the necessary effect of coercing employees into becoming or remaining members of the contracting union. Moreover, it should be noted that the union-security provisions here involved, apart from their illegality by reason of the failure to conform to the requirements of the proviso to Section 8 (a) (3), exceeded the permissible limits of the Act, by permitting the union, as its option, to insist that employees join the Union immediately upon accepting employment with the Respondent. It is, therefore, found that, by renewing and extending from December 1, 1949, to December 1, 1951, the collective bargaining agreement with Local 165, dated October 9, 1946, containing illegal union-security provisions, the Re- spondent has, since November 19, 1950, restrained and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act, thereby violating Section 8 (a) (1) thereof. It is further found that, by assenting to the unlawful union-security provisions during said period, the Respondent has furnished aid and support to said Local 165 in recruiting and maintaining its membership, thereby violating Section 8 (a) (2) as well. Although the collective bargaining agreement between the Respondent and Local 165 also provided for the deduction of union dues and fines, such deduc- tions were made conditional upon the receipt of written authorization from the employees. The record is silent as to whether such authorization was ir- revocable for a period of more than 1 year and, in the absence of any allegation in the complaint that the deduction of such union dues was unlawful, no finding is made regarding such deduction. B. Interference, restraint, and coercion Emerick Sulpizio, a printer in the decorating shop under the supervision of Foreman William Hoyt,' and a member and financial secretary of Local 165, had been in the Respondent's employ for about 14 months at the time of the hearing. He had been a member of Local 165 intermittently over a period of 10 years. Early in February 1951, in a conversation with Foreman Hoyt, Sulpizio re- marked that the Operative Potters had spent many years establishing prices 4 Julius Resnick, Inc., 86 NLRB 38, 40 , citing Hager and Sons Hinge Manufacturing Company, 80 NLRB 163. " It is conceded that, at all times material herein, Hoyt was a supervisor with authority to hire and discharge employees in his department. TECHNICAL PORCELAIN AND CHINAWARE COMPANY 31 with pottery manufacturers throughout the United States, and that he doubted that the CIO could "step in and do that overnight." Hoyt agreed, observing that he had been a member of the Operative Potters for many years and realized the difficulty involved. It is thus evident from this discussion that Foreman Hoyt was aware at the time of the impending. organizational attempt by the Mine, Mill and Smelter Workers, referred to in the discussion as the CIO. On about February 12, 1951, about a week before her discharge, Marguriette Hoyt secured Sulpizio's membership application in the Mine, Mill and Smelter Workers Union. Several days later, Foreman Hoyt stopped at Sulpizio's press and engaged him in conversation. Hoyt asked him whether any of the girls were interested in the CIO, and asked him to identify them. Sulpizio told him that he did not know which of the girls were interested-that possibly all of them were. During this conversation or another one at or about this time,' Foreman Hoyt asked Sulpizio if he "was CIO too." Sulpizio told him that he belonged to the CIO, and showed him a CIO membership card.' According to Sulpizio, Hoyt laughed, but made no further comment. A day or so later, Arthur J. Pagliero, one of the copartners, in charge of pro- duction and research,' approached Sulpizio and asked, "How is the CIO?" Sul- pizio replied, "Fine," adding "I am CIO." Sulpizio testified that Pagliero laughed, and that he then showed Pagliero the membership card he had shown Hoyt earlier. Pagliero remarked that he did not believe that the Mine, Mill and Smelter Workers was "the same union " because it was no longer affiliated with the CIO. According to Sulpizio, the whole tone of his conversations with both Foreman Hoyt and Arthur Pagliero was bantering and jocular-"more or less kidding"- and that he regarded the incidents as "more or less a joke." Sulpizio 's attempt at the hearing to dismiss these exchanges in this fashion appeared strained, if not contrived. That he was ill at ease, and undoubtedly embarrassed by his conflicting allegiance to two labor organizations, of one of which he was an officer, as well as the necessity for giving testimony which might prove damag- ing to his employer, was evident from his entire demeanor on the witness stand. Moreover, it is apparent from the testimony of both Foreman Hoyt and Arthur Pagliero that they did not regard their conversations with Sulpizio in a spirit of levity. Foreman Hoyt testified that he first learned of the so-called CIO organiza- tional activity on the Thursday or Friday before Marguriette Hoyt's discharge, which occurred the following Monday. He testified that he mentioned to Sul- pizio that he had heard that the Negro employees were in favor of the CIO, but that he doubted it. Sulpizio said that some of them undoubtedly were and added that there were adherents in the decorating shop as well. In answer 6 Sulpizio was vague and uncertain as to when these conversations occurred. At one point in his testimony he fixed the time of one of the conversations as about a week after Margurlette Hoyt's discharge At another, several days before her discharge. As will presently be seen, however, Foreman Hoyt fixed the time of his conversation with Sulpizio as the Thursday or Friday before Marguriette Hoyt's discharge , and the undersigned finds that the conversation in question occurred at about that time. 7 The membership card which Sulpizio produced at the hearing bore on its face the name "International Union of Mine, Mill and Smelter Workers" and on the reverse side the initials " CIO." The card related, however , to Sulplzio's former membership in that organization , before the affiliation of the labor organizations had been served and while Sulpizio had been in the employ of another company. 8 Antone Pagliero, who appears to have been the managing partner, was at the Respond- ent's Los Angeles office from February 1 until the morning of Sunday, February 18, 1951, the day before Margurlette Hoyt's discharge. During Antone Pagliero' s absence, his brother, Arthur, was in complete charge of the plant. 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to a question from Hoyt, Sulpizio told him that the employees were about to change their affiliation to the CIO. Hoyt asked, "Do you think so." Sulpizio replied, "Oh yes, it's all over the Shop." Hoyt admitted that he asked Sulpizio whether he knew of anyone else in the department who belonged to the CIO. Sulpizio said that he did not, but. volunteered that he himself belonged, and produced the membership card referred to earlier. With respect to Arthur Pagliero, although he denied that he had ever ques- tioned Sulpizio regarding his union membership, he testified that in a general conversation during the early part of the year, Sulpizio, after discussing his former employment history, volunteered that he had been a member of the CIO while in the employ of another company, and showed him his member- ship card. The undersigned was not favorably impressed by Anthony Pagli- ero's attitude and demeanor on the witness stand and his evident lack of candor. He denied that he had questioned Sulpizio about his membership in the CIO, although Sulpizio did not testify that Pagliero had done so. What Sulpizio did testify to was that Pagliero had asked him, "How is the CIO?" Pagliero did not deny that he had asked Sulpizio this question, which was ob- viously calculated to elicit information as to how the Mine, Mill and Smelter Workers was faring in its organizational campaign. In view of the Respondent's contention that unfounded rumors had been circulating in the plant that Antone Pagliero had been favoring a change in affiliation to the so-called CIO union, it is apparent that Arthur Pagliero was not making the inquiry in a spirit of jocularity. In any event, in determining whether the interrogation of Sulpizio by Fore- man Hoyt and Arthur Pagliero was violative of the Act, it is immaterial that Sulpizio may have regarded it as a joke, and may not himself have been coerced. For, as the Board and the courts have recognized, the test of interference, restraint, or coercion under the Act does not turn on the employer's motive, or on whether the coercion succeeds or fails. The test is whether the employer has engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of employee rights under the Act 0 The record, here, fairly establishes that the Respondent, through its foreman, an admitted supervisor, and one of the copartners, interrogated an employee regarding the union activities of its employees. Such conduct constitutes an unlawful invasion of "the employees' right to privacy in their union affairs," carrying with it as it does, a "subtle but cffective psychological restraint on employees' concerted activities" by arousing in them a natural fear that the employer seeks the information in order to use it to their detriment 10 Frank Elliott, a jiggerman in the clay shop, had been in the Respondent's employ for about 9 years, a member of Local 165 since 1939, a shop committeeman, and former president of the Local. In February 1951, about a week before Marguriette Hoyt's discharge, he was requested by a fellow employee to attend a meeting of the Mine, Mill and Smelter Workers Union. Shortly after 4 o'clock that afternoon, he attended the meeting, at which Bert Westerman, business agent of the Union and five employees, including Frank Davis and Marguriette Hoyt were present. Hoyt was the only female employee who attended that meeting. About a week later, Arthur Pagliero approached Elliott in the plant and, in the presence of employees Alta Davis and Frank Davis, asked Elliott if he had 9 N. L. R . B. v. IliinoirTool Works, 153 F. 2d 811 (C. A. 7), and cases cited. 10 Standard-Coosa-Thatcher Co., 85 NLRB 1358, 1362, quoted with approval in Joy Silk Mille v. N. L. R. B., 185 F. 2d 732 (C. A. D. C.), cert. den., 341 U. 8 914. TECHNICAL PORCELAIN AND CHINAWARE COMPANY 33 attended the meeting of the Mine, Mill ind Smelter Workers Union. When Elliott admitted that he had, Pagliero asked him how many employees had been present. Elliott told him that there had been five. At Pagliero's urging, Elliott divulged the names of Frank Davis and Newell Williams, and mentioned one of his helpers, a Negro, as employees who attended." He did not, however, name Marguriette Hoyt or refer to her in any other manner. Several days later, Pagliero again approached Elliott, and asked him "What kind of worker the colored boy was." Elliott replied that he was "o. k." and the conversation ended on that note." Pagliero denied that he had discussed any union activities with Elliott, but testified that several weeks after Marguriette Hoyt's discharge, he overheard a conversation in the laboratory of the plant between Elliott and three or four other employees concerning Elliott's attendance at the union meeting. According to Paglie_o, Elliott had been a potter "all his life," a member of the Operative Potters, a labor organization of long standing in the industry, and a past presi- dent. Pagliero testified that he was, therefore, "surprised" to learn that Elliott had attended the Mine, Mill and Smelter Workers' meeting, but that he said nothing to him. To the extent that Pagliero's testimony may have been intended as a denial that he had interrogated Elliott regarding his attendance and that of other employees at the union meeting, the denial is not credited. The under- signed finds that Pagliero's attempted explanation of the manner in which he learned of the attendance of employees at the union meeting utterly fails to overcome the specific, positive, and credible testimony of Elliott regarding his interrogation by Pagliero. Upon the basis of the foregoing, and upon the entire record, the undersigned concludes and finds that , by the interrogation of Sulpizio by Foreman Hoyt and Arthur Pagliero, regarding the union membership or adherence of employees in the plant, and by the interrogation of Elliott by Arthur Pagliero regarding the attendance of employees at the union meeting in mid-February 1951, the Re- spondent has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act, thereby violating Section Q (a) (1) 13 C. Discrimination in regard to hire and tenure of employment • Marguriette Hoyt was employed by the Respondent on April 11, 1950, as a sink girl . In February 1951, her job was that of print girl at table No. 1 in the decorating department under Foreman Hoyt. At the expiration of 30 days from her original employment , she joined Local 165 , and presumably continued her membership thereafter. On the morning of February 15 before work,14 Frank Davis, another employee, Invited her to assist in organizing the employees in the Mine, Mill and Smelter Workers Union. She consented, and went to her department where she at- tempted to enlist the three female employees at her table, as well as others in the department. Shortly afterward , Frank Davis and another employee , Newell 11 Although the original charge, filed March 8, 1951, alleges that, in addition to Mar- guriette Hoyt, Williams and Davis were discriminatorily discharged on February 15 and 10, respectively, the complaint contains no such allegation with respect to them 42 According to Elliott's uncontradicted testimony, this Negro employee was discharged about a week before the hearing. The record does not disclose the circumstances under which he was discharged, but it is not alleged or contended herein that the discharge was discriminatory. 23 Standard-Coosa-Thatcher Co., supra. 14 The hours of work were from 7: 30 a. in. to 4 p. in., with a 5-minute clean up period at 5 minutes of 4. 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Williams, joined the group. Eliciting,some interest in that organization, Davis invited the group of employees to attend a meeting that night at the union hall. The meeting was sparsely attended, only five employees, including Marguriette Hoyt being present. Hoyt was furnished with membership application cards and, during the course of the next day, approached the girls at their tables in her department and obtained their signed applications, which she kept in the bip pocket of her "jeans." At about 8 minutes to 4 that afternoon, February 16, 1951, Marguriette Hoyt left her work table and, with three other girls from her department, waited at the head of the stairs for the 4 o'clock whistle. As soon as the whistle sounded, these girls left the plant. At about 5 minutes after 4, Marguriette Hoyt met Frank Davis outside the plant and handed him the signed membership applica- tions. According to Hoyt, Arthur Pagliero was standing in the warehouse, some 10 or 12 yards away, at the time, looking in their direction, as she handed Davis the cards " February 16, 1951, fell on a Friday. Apparently the plant was not in opera- tion Saturday. On Monday, February 19, Marguriette Hoyt reported for work as usual, went to her work table, and when the 7:30 starting whistle sounded was ready to begin work. Almost immediately, Foreman Hoyt handed her a discharge slip to sign and said, "That's all. You have to go downstairs and get your time." Marguriette asked the reason for this action, but, according to her, Foreman Hoyt said that he did not know-that he had his orders. He told her to go downstairs for her check and left for the office himself, intending to turn in the duplicate discharge slip so that her pay check could be prepared. Dis- covering that the office help had not yet arrived, Foreman Hoyt started back upstairs. He encountered Marguriette on the stairs , and again she asked him the reason for her discharge. He replied by asking "Where were you Friday afternoon when the 4: 00 o'clock whistle blew?" She said that she had been standing at the top of the stairs, but that she had not been the only one there. Foreman Hoyt rejoined, "That's all. That's it." Except for denying that he had told her that he had had his orders to dis- charge her, Foreman Hoyt generally corroborated her testimony as to the exchange between them at the time of her discharge. Foreman Hoyt testified additionally, however, that Marguriette asked him if the two trips she had made downstairs a few days earlier had had anything to do with her discharge. He testified that she told him that she had gone down to obtain some member- ship applications for the Smelters' Union, the first intimation, according to him, that she had had anything to do with the organizational activities. He asked her whether she got the applications. She said that she had, that they were intended for the girls upstairs, and produced a booklet containing application 15 Denying that he saw Hoyt hand Davis any cards, or that he saw her when she left the plant, Pagliero testified, on direct examination , that he was not on the scene where Hoyt placed him at the time. On cross-examination , he testified that he had no recollection of where he had been, and that he might have been standing outside the plant when Hoyt left, but that he did not see her. The undersigned was not favorably impressed with Pagliero's testimony, which was generally equivocal and evasive. In contrast, Hoyt's testimony was characterized by forthrightness and candor, as illustrated by her willing- ness to admit frankly that she had violated a company rule by quitting before the final whistle. The undersigned finds, therefore, that Pagliero was in the immediate vicinity when Holt handed Davis the cards and that Pagliero observed the occurrence. Although it is unlikely, in view of the distance from which he made the observation, that he knew with certainty what Hoyt had handed Davis, it is reasonable to infer, on the basis of the information lie had obtained from Elliott regarding Davis' attendance at the union meeting, and the general union activity at the plant, that Pagliero concluded that her encounter with Davis related to the union activity. TECHNICAL PORCELAIN AND CHINAWARE COMPANY 35 cards. She also showed him her own card with her name on it. He read the card, remarking that she had it all filled out. Marguriette continued downstairs and met Arthur Pagliero near the kiln. She asked him if he could tell her why she had been discharged. He told her to go to his brother Antone's office, where he would meet her. She went there, waiting until about 9 o'clock in the morning, when Antone Pagliero finally appeared. She asked him why she had been discharged. He replied, according to her, "Even though I have been gone, I have had boys take care of my work." Marguriette protested that even though she may have been at the top of the stairs, she had not been the only offender. Pagliero ignored her protest, and remarked that her time would be ready shortly. About 5 minutes later, Antone Pagliero returned, accompanied by his brother, Arthur, with Hoyt's pay check. She told them that before she accepted the check, she wanted them to tell her why she was being discharged. Arthur said, "You were seen at the top of the stairs at 4:00 o'clock last Friday." Again she reiterated that she had not been alone there at the time. He retorted, "That's all right. We will get them, too." She went upstairs for her personal belong- ings, accompanied by Antone Pagliero. On the way down, she spoke to "Rip" Van Winkle, a Local 165 shop committee man, and asked him to take up the matter of her discharge with management. Van Winkle told her he knew of nothing that could be done and suggested that she see Phil Eckley, one of the other members of the shop committee who was out of the plant and not expected until 3 o'clock that afternoon. Van Winkle concluded, "I don't know anything more for'you to do." Hoyt left the plant and was joined by Frank Davis, who was waiting outside, and the two left for San Francisco. Van Winkle, chairman of the shop committee of Local 165, testified that after Marguriette Hoyt told him that she had been discharged, he questioned Arthur Pagliero, who confirmed that she had been discharged for quitting early. Van Winkle asked for a meeting of the committee with Pagliero, and- the latter consented. A meeting was held in the company office after work that day. Although, according to Van Winkle, he was uncertain whether Antone Pagliero, as well as Arthur, was present, Antone testified that he was. It appears, how- ever, from Antone Pagliero's testimony, that the primary purpose of the meet- ing was to scotch rumors which had allegedly been circulating in the plant that he favored a change in union affiliation to the CIO. It was not until after this discussion had been concluded, Antone testified, that the question of Marguriette Hoyt's discharge was considered and, he continued, "we cut the conversation very short, quick and snappy," with a reading of the rules and regulations from the contract between the Association and the Operative Potters." Antone Pagliero's testimony, however, was in direct conflict with his state- ment in a letter, dated March 14, 1951, to the Regional Office, in reply to notice of the filing of the original charge, alleging that the Respondent had discriminated against Newell Williams, Frank Davis, and Marguriette Hoyt. In that letter Pagliero had stated that the Operative Potters shop committee had at no time approached the Respondent "on any complaint originating from either of these three persons." When confronted with this letter, Pagliero testified that the statement was erroneous, that the letter was intended to refer only to Williams and Davis, and that his secretary had misunderstood his instructions. He, himself, however, had signed the letter. 16 The pertinent provisions read All hourly wage employees shall continue at their work until quitting time signal is given. There shall be no change in current allowance for cleanup time 36 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD Assuming that the meeting was held, and that Marguriette Hoyt's discharge was actually considered, it is evident that her grievance received summary treatment, at most, and that no genuine effort was made to consider the grievance on its merits. In view of Hoyt's organizational efforts on behalf of a rival union, it is not surprising that her grievance received no more than perfunctory presentation at the hands of the shop committee, if that. The Respondent contends that Marguriette Hoyt was discharged solely for having quit work early on Friday, February 16, 1951, in violation of an estab- lished company rule requiring employees to remain at their work until 5 minutes of 4, when the first whistle is sounded, and to devote the remaining 5 minutes to necessary cleanup work. Hoyt admitted frankly, that although she was aware of the rule, and that the employees had frequently been warned that they would be discharged for violation of this rule, she left her work table without permis- sion this day several minutes before the 5-minute warning signal. On this occasion, however, she and the girls at her table had completed the job on which they had been working, and had finished their cleanup work several minutes before the 5-minute whistle sounded. In addition, Foreman Hoyt, who regularly distributed the time cards for the employees to sign at the 5-minute whistle, had brought the employees their time cards at about 10 minutes of 4. Marguriette had signed her own card at about 6 or 7 minutes of 4, after she and the other girls at her table had finished their work. She testified credibly, and without substantial contradiction, that not only had she and the girls at her table stopped working, and prepared to leave the plant, but that the girls at tables No. 2 and No. 4 had done so as well.14 Marguriette and three other girls, Ina Atwell, Margaret Hait, and Alvina Zebe, proceeded to the bead of the stairs, where they waited for the 4 o'clock whistle. Two, other employees, Myrtle Begley and Fern Pierce, had stopped mid-way between -table No. 1 and the stairway to chat with Foreman Hoyt. The first group, which had passed him on their way to the stairway, did so without any comment or reproach from their foreman. No objection was made at the time by him to their leaving their work tables several minutes early and, with the exception of Marguriette, none of the other girls who left early was later discharged, reprimanded, or otherwise disciplined. It is, of course, axiomatic that, so far as the Act is involved, an employer may discharge an employee for any reason or, indeed, for no reason at all, pro- vided only that he is not motivated, in whole or substantial part, in effecting the discharge, by considerations of the employee's union or concerted activities. In determining what actually motivated the respondent in discharging Mar- guriette Hoyt, however, the following facts are significant. The record clearly establishes that the Respondent had for many years encountered considerable difficulty in enforcing the rule against early quitting. Frank Elliott, a Local 165 shop committeeman, and former president, employed by the Respondent for some 9 years, testified that he had frequently discussed this problem with members of his crew after complaints by the Respondent to the shop committee. As late as the time of the hearing, however, he was still meetng with slight success in obtaining obedience to the rule. Nevertheless, he testified, no employee had been discharged for violating the rule, with the exception of Marguriette Hoyt. According to Elliott, and Van Winkle, the rule, embodied in the agreement between the Association and the Operative Potters, had been discussed at various union meetings, and read on more than one occasion. Yet, Elliott admitted that "everybody quits early at the plant." 11 Table No. 3 had not been in use during the period here involved. TECHNICAL PORCELAIN AND CHINAWARE COMPANY 37 • Foreman Hoyt, himself, testified that he had never discharged any employee, prior to Marguriette Hoyt's discharge, for quitting work before the final whistle. Despite this testimony, Antone Pagliero testified, without particularizing, that during the past 10 years some 50 employees in all departments had been dis- charged for that reason, and an equal number for reporting to work late. Reminded of Foreman Hoyt's testimony, Pagliero 'stated that Hoyt would not necessarily have been aware of the facts, and that Hoyt was obviously mistaken in his testimony. In view of the credible, persuasive, and mutually corroborative testimony of Elliott and Foreman Hoyt that no employee had been discharged for quitting early before, and the testimony of Marguriette Hoyt and other female employees in her department that, with the possible exception of a Negro who, Antone Pagliero had told them, had been discharged several months earlier, no other employee had been discharged for that reason, 8 the undersigned does not credit Antone Pagliero's testimony on this point. - Significantly, Foreman Hoyt testified that if the Respondent had been busy at the time Marguriette Hoyt was discharged, she would have been disciplined by a mere reprimand rather than a discharge. It should also be noted that Foreman Hoyt testified that he reached the decision to discharge Hoyt at the moment he saw her leave on the day in question. Yet, he made no attempt to deter or prevent her from leaving, and did not immediately notify her that she was discharged. Instead, he permitted her to leave without saying anything to her. He conceded that she had been a good worker, and that he had never experienced any difficulty with her before. Only a week earlier, she had achieved a new production record. It is undisputed that Foreman Hoyt had authority to discharge employees under his supervsion without prior consultation with management. He had decided to discharge her when he saw her leave, yet, according to him, he delayed notifying her of her discharge until she reported for work the following Monday. He denied that he did so then on instructions from management , and maintained that he did not consult with any of the partners between Friday and Monday, when she was discharged. It will be recalled that Antone Pagliero had been absent from the plant from February 1 until February 19, the day of Marguriette Hoyt's discharge, returning to his home the day before, Sunday. Antone ad- mitted that he telephoned his brother on Sunday, but denied that he had dis- cussed the organizational activities at the plant with him until the afternoon of Monday, February 19, shortly before the meeting with the shop committee. In view of the Respondent's obvious concern regarding the rumors, which it claimed had been circulating in the plant, that Antone Pagliero was favoring a change of union affiliation, Antone's testimony that the subject was not even mentioned in the telephone conversation with his brother, after Antone's absence of nearly 3 weeks, strains one's credulity. These circumstances give rise to the inference that Foreman Hoyt had not, in fact, decided to discharge Marguriette Hoyt when he saw her leave early on Friday but that, despite his denials, the 18 Although Theresa Carrera, who apparently replaced Marguriette Hoyt, testified, as a witness for the Respondent, that she thought another female employee had been discharged for quitting early, she admitted that her testimony was based solely on rumor in the plant. Moreover, her testimony on this point was successfully impeached by an affidavit she had given a field examiner of the Board , on March 29, 1951, in which , after reciting that Foreman Hoyt had sometimes scolded girls for starting to clean up before the 5-minute whistle , she stated , "But as far as I know, no one has ever been fired for doing this." In her oral testimony, she affirmed the truth of this statement, and testified that it is quite common for the girls to start cleaning up their tables and getting their coats on before the 5-minute whistle, so as to be ready to leave when the 4 o'clock whistle is sounded. 215233-53-4 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD decision was reached after consultation with either or both of the copartners, and after he had reported the incident to them. It is unnecessary to speculate about this, however, because the record sufficiently establishes that the Respondent had been aware of the Mine, Mill and Smelters organizational campaign, to which it was obviously opposed, and of the extent of Marguriette Hoyt's participation therein, before it determined on her dis- charge. Thus, through Foreman Hoyt and Arthur Pagliero, it had interrogated employees regarding their interest in the Union and the attendance of employees at a union meeting. The relatively small complement of employees at the Re- spondent's plant, and the extent of the organizational activity, alone, afford sufficient basis for a finding that the Respondent was cognizant of both the organi- zational activity, and Marguriette Hoyt's participation therein. The record fairly establishes that her solicitation of members among the employees was open and notorious, rather than surreptitious, quite apart from the credible evidence that she was observed by Arthur Pagliero, on February 16, the very day on which she had engaged in conduct for which she was allegedly dis- charged, in the company of Frank Davis, a known adherent of the Mine, Mill and Smelter Workers, as she was turning over membership cards to him. In a belated attempt to justify the obviously disparate treatment of Marguriette Hoyt, and the failure to discipline the other female employees in her depart- ment who had also clearly violated the rule against early quitting, Foreman Hoyt testified that Marguriette had been "head of the table," that her work determined the amount of production at her table, and, inferentially, that the Respondent considered it necessary to make an example of her. There is no evidence in the record, however, that Foreman Hoyt or any other management representative had ever advised her that she occupied any such special status. She received the same rate of pay as the other employees at her table, she pos- sessed no supervisory duties, and such duties as she performed were of a routine and repetitive nature. No satisfactory reason was otherwise shown as to why she should have been held to a higher standard of conduct than the other em- ployees who had violated the same rule with impunity. Moreover, it is sig- nificant that neither Foreman Hoyt nor any other management representative informed her prior to her discharge that that was a factor in the decision to discharge her. The entire setting in which this evidence was adduced convinces the undersigned that it was contrived as an afterthought to meet the evidence of patent discrimination, which the Respondent realized it would be required to justify by some plausible excuse. Upon the basis of all the relevant, reliable, substantial, and probative evidence, on the record as a whole, the undersigned concludes and finds that the Respond- ent discharged l`farguriette Hoyt on February 19, 1951, not because she had violated the rule against early quitting, but because of her organizational ac- tivities on behalf of the Mine, Mill and Smelter Workers Union, and that it seized upon the infraction of the rule as a pretext to eliminate a known adherent of a union to which it was opposed. By so doing, the Respondent has discrimi- nated in regard to the hire and tenure of her employment, thereby discouraging membership in the Mine, Mill and Smelter Workers Union, in violation of Sec- tion 8 (a) (3), and' interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7, in violation of Section 8 (a) (1) of the Act. IV. The effect of the unfair labor practices upon commerce The activities of the Respondent set forth in Section III, above, occurring in connection with the operations of the Respondent described in Section I, above, TECHNICAL PORCELAIN AND CHINAWARE COMPANY 39 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 ob- structing commerce and the free flow of commerce. V. The remedy It has been found that the Respondent has engaged in certain unfair labor practices. It will, therefore, be recommended that it cease and desist there- from and take certain affirmative action in order to effectuate the policies of the Act. It has been found that the Respondent, by assenting to an unlawful union- security provision, has furnished support and assistance to Local 165 in recruit- ing and maintaining membership, thereby violating Section 8 (a) (2), and restraining and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act, thereby violating Section 8 (a) (1) of the Act. It will, therefore, be recommended that the Respondent withdraw and withhold rec- ognition from Local 165 , and cease giving effect to its contract with that labor organization, dated October 9, 1946, as renewed and extended by the amend- ment dated December 1, 1949, or to any modification , extension , supplement, or renewal thereof, unless and until said labor organization shall have been cer- tified by the Board. Nothing herein, however, shall be deemed to require the Respondent to vary or abandon those wage, hour , seniority, or other substantive features of its relations with its employees , established in the performance of said contract, as amended, or to prejudice the assertion by the employees of any right they may have under such agreement , as amended. It has also been found that the Respondent has discriminated in regard to the hire and tenure of employment of Marguriette Hoyt by discharging her on Febru- ary 19, 1951, thereby discouraging membership in a labor organization . It will, therefore, be recommended that the Respondent offer said Marguriette Hoyt im- mediate and full reinstatement to her former or substantially equivalent posi- tion," without prejudice to her seniority and other rights and privileges . It will also be recommended that the Respondent make said Marguriette Hoyt whole for any loss of pay she may have suffered by reason of the Respondent 's discrimi- nation against her, by payment to her of a sum of money equal to the amount she normally would have earned as wages from the date of her discriminatory discharge to the date of the Respondent's offer of reinstatement, less her net earnings during said period .20 Loss of earnings shall be determined in accord- ance with the Board's formula in F. W. Woolworth Contpanv ,21 and , as provided in said decision , it will be further recommended that the Respondent, upon rea- sonable request, make available to the Board and its agents all pertinent records necessary to an analysis of the amount due as back pay. The unfair labor practices found reveal a determination on the part of the Respondent to defeat the fundamental objectives of the Act , and justify an inference that commission of unfair labor practices in the future may be an- ticipated from its conduct in the past . The preventive purposes of the Act may, therefore, be frustrated unless the Respondent is required to take some affirmative action to redress this possibility . It will, therefore , be recommended that the Respondent cease and desist from in any manner interfering with, re- straining, or coercing its employees in the exercise of the rights guaranteed by the Act "Chase National Bank of the City of New York , San Juan, Puerto Rico, Branch, 65 NLRB 827. ° Crossett Lumber Co , 8 NLRB 440 =' 90 NLRB 289 21 See May Depai tnient Stat es Company, Inc v N . L. R. B, 326 U. S 376 40, DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following : Conclusions of Law 1. Chemical Workers Union, Local 266, Mine, Mill and Smelter Workers Union, affiliated with International Union of Mine, Mill and Smelter Workers, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By renewing and extending, from December 1, 1949, to December 1, 1951, the collective bargaining agreement, dated October 9, 1946, containing illegal union-security provisions, the Respondent has, since November 19, 1950, furnished support and assistance to Local Union No. 165, National Brotherhood of Operative Potters, AFL, in recruiting and maintaining membership, thereby violating Section 8 (a) (2) of the Act. 3. By the foregoing conduct and by interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. By discriminating in regard to the hire and tenure of employment of Mar- guriette Hoyt, thereby discouraging membership in a labor organization, the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. ' 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication in this volume.] BUZZA-CARDOZO COMPANY and PRINTING SPECIALTIES AND PAPER PROD- UCTS UNION No. 388, INTERNATIONAL PRINTING PRESSMEN & ASSIST- ANTS UNION OF NORTII AMERICA, AFL, AND SIGN & PICTORIAL PAINTERS UNION No. 831, BROTHERHOOD OF PAINTERS, DECORATORS, AND PAPER HANGERS OF AMERICA, AFL, PETITIONERS. Case No. 21-IBC-2267. May 9, 1952 Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Arthur Hailey, hear- ing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Houston and Murdock]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain employees of the Employer. 99 NLRB No. 19.