Richardson Manufacturing Co.

136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the foregoing findings of fact and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. The operations of the Respondent occur in commerce within the meaning of Section 2 (6) of the Act. 2. Local No. 52, United Tool and Die Makers of America, affiliated with the National Independent Union Council, is a labor organization within the meaning of Section 2 (5) of the Act. 2. The Respondent has not engaged in unfair labor practices, as alleged in the complaint, within the meaning of Section 8 (a) (1), (3), and (5) of the Act. [Recommendations omitted from publication.] LLOYD F. RICHARDSON, SR., LLOYD F. RICHARDSON, JR.,1 AND WILLIAM L. RICHARDSON, D/B/A RICHARDSON MANUFACTURING COMPANY and LODGE No. 628, INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL. Case No.13-CA 1361. July 9,1954 Decision and Order On September 30, 1953, Trial Examiner Horace A. Ruckel 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 and the General Counsel filed exceptions to the Intermediate Report and sup- porting briefs. 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 briefs, and the entire record in the case, and finds merit in the Respondent's exceptions. 1. The Trial Examiner found that the Respondent, by discharging employees Bartolomucci, Hambleton, and Hurley, who composed the Union's shop committee, violated Section 8 (a) (3) and (5) of the Act. We do not agree. On the afternoon of January 27, 1953, Richardson instructed Bar- tolomucci to place his cut pieces of steel on pallets rather than directly on the floor. The following morning, Richardson observed that Bartolomucci was continuing to stack the cut pieces directly on the floor. He asked Bartolomucci why he had not followed his instruc- tions and Bartolomucci replied the night shift had not placed the cut 1 Lloyd F. Richardson, Sr., is a partner and principal figure for the Respondent In this case and Is herein called Richardson. 109 NLRB No. 5. LLOYD F. RICHARDSON, SR., ETC. 137 pieces of steel on pallets and he didn't see why he should 2 Richard- son replied that "The next time I tell you to do something and you don't do it I am going to fire you." Bartolomucci, followed by Richardson, proceeded to where Hambleton was working and stated that he had a grievance. Although there was considerable conflict in the testi- mony as to what Richardson said, the Trial Examiner credited the testimony of Bartolomucci and Hambleton that Richardson said "All right, clock out." Richardson returned to the Respondent's office. Bartolomucci and Hambleton, who were joined by Hurley, the third shop committee member, proceeded to leave the Respondent's premises without further discussion of the matter with any of Respondent's supervisors. The three were absent from the plant for about an hour during which time they discussed the incident over the telephone with a union representative. When they returned to the plant, Rich- ardson met them at the door, tendered their checks, and stated "You quit, you walked off the job." The employees denied that they had quit, and left without taking their checks. At the hearing, the Respondent contended that the three employees were discharged for cause, i. e., leaving their job during working hours without permission, in violation of established company rules. About 2 weeks before the discharges, 1 of the partners instructed the shop committee members that "anytime when anyone had a grievance or there was any union business to be conducted . . . to come to the office and check out with Mr. Gray and then go ahead and discuss it and when you finish to check back in." Richardson testified that this rule was promulgated to eliminate the congregating of employees on the plant floor during working hours and to assist management in keeping an accurate record of actual time spent in production 3 The Trial Examiner found that Richardson's statement to "clock out" constituted permission to quit work. He then reasoned that when the three employees left the plant to confer with the union representa- tive, their departure was at most a technical violation of the Respond- ent's rule (to check with Mr. Gray in the office before discussing a grievance or conducting union business and to check back in after its completion) since the purposes of the rule were served. The Trial Examiner found further that the Respondent's reasons for the termi- nation of these three employees, as stated at the time of their termi- 2 Richardson testified without contradiction that the employees of a relieving shift con- tinued the operating procedures of the prior shift unless contrary instructions were given and that none had been given to the night shift. Thus, if Bartolomucci had followed the instructions given him on the afternoon of January 27, the night shift employees would have also placed the cut pieces of steel on pallets instead of directly on the floor. 8 The practice when an employee wished to absent himself from the plant for personal reasons was to get permission from one of the partners before leaving and to make a nota- tion of the time absent on his work slip at the end of the day. This rule does not appear to be involved in the instant proceeding however , as a grievance was involved and it was not contended that either of these three employees requested permission from either of the partners to leave the plant for personal reasons. 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nation and at the hearing, were inconsistent. He thus concluded that the reasons advanced by the Respondent were mere pretexts, that the real reason for their terminations were union membership and acti- vities, and that their discharges, therefore, were in violation of Section 8 (a) (3) of the Act. We do not agree. In his analysis of this issue, the Trial Examiner appears to have overlooked certain factors. There is no doubt that the granting of permission to clock out for personal reasons would constitute per- mission to quit work and leave the plant, and to make a notation of the time absent on the employee's work slip upon his return. None of the three dischargees, however, requested permission to leave the plant for personal reasons. Instead, a grievance was to be discussed ,or union business conducted. We must, therefore, look to the rule that had recently been promulgated at the plant concerning grievances and conducting -union business to determine the meaning of the words {`clock out" as used by Richardson. As already indicated, the 3 dischargees were informed about 2 weeks before their terminations that they must check out in the office with Mr. Gray before discussing a grievance or conducting union business and check back in after its completion. Thus with respect to grievances and conducting union business, the words "clock out" could have meant nothing else but to follow the requirements of this plant rule. The three dischargees (lid not do so. Instead, they walked directly past the office and left the Respondent's premises, without telling Gray or anyone else why they were leaving, where they were going, or when they would return. In these circumstances, Nye believe that the violation of the Company's rule was not merely technical, as the Trial Examiner termed it. Nor •do we find the reasons advanced by the Respondent for their dis- charges; at the time of their termination and at the hearing, to be inconsistent. At the time of the discharges, Richardson said "You quit, you walked off the job." At the hearing, the Respondent's defense was that the men were discharged for the violation of a com- pany rule. In our opinion, Richardson's statement, "You quit, you walked off the job," in the circumstances in which it was made, had direct, clear, and unmistakable reference to the plant rule against leaving on union business without first checking out with Mr. Gray as they had previously been instructed to do. Nor is this opinion weakened by the excerpts from the Illinois unemployment compensa- tion hearing which are quoted by our dissenting colleague. Indeed, Richardson's quoted testimony shows that Bartolomucci, Hambleton, and Hurley were supposed to check out with Gray to handle the alleged grievance, and although he stated that lie would have let them go if they had asked him, the fact remains that he told them to "clock out" and that they did not do so. LLOYD F. RICHARDSON, SR., ETC. 139 .The-facts.in this case cannot be viewed in isolation. Bartolomucci, the key figure in the case, had been instructed by Richardson to place cut pieces of steel on pallets rather than directly on the floor. He failed to follow instructions. When Richardson, the following morning, called his attention to his failure, Bartolomucci answered in an insubordinate manner. Bartolomucci then and there dropped his work to speak to another employee, who was also on the shop committee, about an alleged "grievance." When Richardson asked him why he did so, he said he had a "grievance." Instructed to take up the matter as a "grievance," he again showed an insubordinate attitude by leaving the plant premises in concert with the other two shop committeemen in violation of the plant rule. They absented themselves for an hour without disclosing to management the reason for their absence. Thus, when they returned, after this unexplained conduct, Richardson's statement to them about their leaving the plant was an obvious reference to a chain of events characterized not only by acts of insubordination but also by a violation of a plant rule. Viewed thus, the facts, and the obvious inferences derived from the facts, can lead to only 1 conclusion, and that is that the 3 employees were discharged, as we have already indicated, for cause, and not in violation of Section 8 (a) (3) of the Act. We note that our dissenting colleague places particular emphasis on "manifestations of the Respondent's animosity towards the Union." In doing so, he refers to occurrences of more than a year before the events giving rise to this proceeding. It is, of course, in direct contravention of Section 10 (b) of the Act to rely on conduct occur- ring prior to the 6-month statutory period as evidence of unfair labor practices. We would call attention to the fact that there is far more immediate evidence as to events that occurred-not more than a year earlier-but the very morning of the discharges which are much more material and relevant in appraising this situation. Bartolo- mucci's failure to follow instructions on January 27 and January 28, his insubordination when reprimanded, his leaving the plant premises with the other 2 in violation of the plant rule, and the absence of the 3 men for an hour without apprising management-all on January 28-cast, in our opinion, considerably more light on the reasons for the discharges than the occurrences of more than a year earlier. Accordingly. we shall dismiss the Section 8 (a) (3) allegations of the complaint. The Trial Examiner found that by discharging these three em- ployees, the Respondent destroyed the effectiveness of the shop com- mittee of which they were members, thereby also violating Section 8 (a) (5) of the Act. However, as we have found that these em- ployees were discharged for cause, we, necessarily, find that their 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharge did not constitute a violation of Section 8 (a) (5) of the Act, and shall accordingly, dismiss this portion of the complaint.4 2. During the hearing, the complaint was amended to allege that the Respondent refused to bargain in violation of Section 8 (a) (5) by unilaterally granting a wage increase to its employees on February 13, 1953, when collective-bargaining negotiations were in progress. The Trial Examiner did not mention this allegation in his Inter- mediate Report and made no findings based thereon. The General Counsel excepted to the Trial Examiner's failure to find a violation of Section 8 (a) (5) based on this allegation. The issue was fully litigated at the hearing. The Union's proposed contract, forwarded to the Respondent on November 14, 1952, provided for a wage increase. This proposal was discussed at the initial bargaining session on January 19, 1953, but no agreement was reached. On February 13, at 2: 30 p. in., Richard- son requested Alternate Shop Committeeman Moss to approve a 6-per- cent general wage increase to all employees and merit increases to some. Moss had no objection to the'increases but stated that he would have to get in touch with the union representative or 1 or 2 of the other committeemen. Thereupon Moss attempted to reach the union repre- sentative and Hambleton and Hurley, but was unable to do so. He did, however, get in touch with Bartolomucci, who stated that he had no objection to the proposed wage increases. The Respondent there- upon distributed the checks reflecting the wage increases. At the next bargaining session, the union representative stated that the granting of the wage increases was a violation of the Act. However, no protests were made by the Union at any of the subsequent bargain- ing sessions, and, indeed, at these meetings with management the union representative even sought an additional wage increase. The General Counsel contends that the Respondent did not give the Union adequate notice of the proposed wage increases, thus denying the Union an opportunity to bargain concerning this matter, and points to the fact that some checks reflecting the wage increases had been made out in the office before Richardson requested Moss' approval for the increases. It is undisputed, however, that none of these checks were distributed prior to the approval by Moss and Bartolomucci and it would be mere speculation to surmise what action the Respondent would have taken if their approval had not been received. Not only were Moss and Bartolomucci notified of the proposed increases by the Respondent but they gave their approval to the increases without ever requesting additional time to discuss the matter. Furthermore, 4 As we have found that the three individuals were discharged for cause, we cannot agree with our dissenting colleague that by the discharges the Respondent destroyed the Union's effectiveness as the bargaining representative . Indeed, as we view the facts of this case , the three committeemen in conducting themselves as they did on January 28, rather than the Respondent , must bear the full brunt of responsibility. LLOYD F. RICHARDSON; SR., ETC. 141 there is no showing that the Respondent, at any time before or after the increases, failed or refused to bargain in good faith. In view of these facts, we believe that the Union acquiesced in the Respondent's decision to grant wage increases and that therefore the Respondent did not thereby violate Section 8 (a) (5) of the Act. We think that the facts in this connection are clearly distinguish- able from those in the Crown Zellerbach case cited in the dissent. In that case, the Board found that effective notice of proposed piece-rate changes had not been given to the union nor had the changes been established through bilateral action because the only committeeman who had knowledge of and had approved the piece-rate changes was the sole employee affected by those changes. In the present case, how- ever, all employees, and not just Alternate Committeeman Moss, were affected by the proposed increases, and Committeeman Bartolomucci, who was no longer an employee of the Respondent, could not receive any financial benefit from the increases. Nor can we agree with him that the Tomlinson and Tower Hosiery cases are apposite. In those cases, the employer did not wait for the reply of the bargaining repre- sentatives but forthwith put into effect changes in terms and condi- tions of employment. Here, not only were Moss and Bartolomucci notified of the proposed changes, in person and by telephone, but they actually gave immediate approval to them. Furthermore, as we view these facts and circumstances, it would be utterly unrealistic for the Board to adopt a rule that bargaining representatives may acquiesce in proposed changes, make no assertion that the notice given them was insufficient, and later allege the commission of unfair labor prac- tices because of these very changes in terms and conditions. Finally, we can perceive no sound basis whatever for prescribing that notice of proposed changes must be given to "the most skilled union representa- tive at the bargaining table," as our dissenting colleague apparently suggests. To establish such a rule would place an employer in the wholly impossible position of having to determine whom, among the union's representatives, he regards as the most effective or important. We shall, therefore, also dismiss this portion of the complaint.5 In accordance with the foregoing, we shall dismiss the complaint in its entirety. [The Board dismissed the complaint.] 5 The complaint also alleged a refusal to bargain in good faith in violation of Section 8 (a) (5) in that the Respondent refused to meet with the Union after March 17, 1953, by conditioning further bargaining on the presence of the union committee ; and by making a secret recording of one of the bargaining sessions . The Trial Examiner found no merit in these allegations . As no exceptions were filed with respect thereto, we shall adopt the Trial Examiner's finding. The Trial Examiner likewise found no merit in the allegation that Bartolomucci was discriminated against in violation of Section 8 (a) (3) by a reduc- tion in his hours of work and job content. No exceptions were filed thereto, and , accord- ingly, we also adopt this finding. 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD MEMBER PETERSONtconcunrnIYg : I concur in the result reached by Chairman Farmer and Member Rodgers, but I do not join in the entire content of their opinion. ~A4though the case is•an extremely close one, I am not,pensuaded, as is Member Murdock, that upon the entire record the evidence pre- ponderates in favor of finding that the Respondent violated Sections 8 (a) (1), (3), and (5) of the Act. I therefore agree that the com- plaint should be dismissed in its entirety. MEMBER MURDOCK, dissenting : In my opinion, the record amply supports the Trial Examiner's find- ings that Bartolomucci, Hambleton, and Hurley, members of the Union's shop committee, were discharged because of their union ac- tivities in violation of Section 8 (a) (3) of the Act, and that the Respondent's action in doing so was calculated to, and in fact did, subvert the Union's effectiveness as the bargaining representative of the Respondent's employees in violation of Section 8 (a) (5). I also, believe that the record refutes the majority's finding that the Respond- ent's granting of a wage increase to its employees was made in good faith and did not come within the proscriptive ambit of Sec- tion 8 (a) (5). Like my colleagues, I heartily agree that the "facts in this case can- not be viewed in isolation." The pertinent facts, as disclosed by the record, establish that in the fall of 1951 the Union commenced its initial drive to organize the Respondent's employees. Coincident thereto,. f our employees were discharged. Shortly thereafter the Independent Employees Association was formed, with the assistance of the Re- spondent, and a.contract was executed on January 2, 1952, between the Independent and the Respondent. Bartoloinucci, who was active in forming the Independent and later became its first vice president, testified without contradiction to a conversation with Lloyd Richard- son, one of the Respondent's partners. Richardson,. referring to the four dischargees, stated "Well, we got rid of these fellows. There won't be no union coming in here." Bartolomucci further testified again without refutation, that with respect to the contract with the Independent, Richardson commented that "Well, this will keep them [the Union] out for three years." In spite of these manifestations of the Respondent's animosity towards the Union, which my colleagues apparently ignore, but which I believe the Trial Examiner properly considered as background evidence in assessing the Respondent's sub- sequent unlawful conduct," the Union later won an election and ob- tained a Board certification on September 18, 1952, as the bargaining representative of the Respondent's employees. See N. L. R B v. Frederica Clausen, d /b/a Luzerne Hide & Tallow Co, 188 F. 2d 439 (C. A. 3), cert. denied 342 U. SS. 868; Gagnon Plating and Manufacturing Company, 97 NLRB 104. LLOYD F. RICHARDSON, SR., ETC. 143 Bartolomucci was instrumental in the Union's successful organiza- tional campaign. At a meeting of the Union held at his home in June 1952, notice of which was posted on the Respondent's bulletin board, Bartolomucci, as well as Hambleton, was selected as temporary union- shop committeeman. The Union immediately apprised the Respond- ent of this selection. On November 5, 1952, after the Union's certi- fication, Bartolomucci, Hambleton, and Hurley were selected by the Respondent's employees as permanent shop committeemen, and again the Respondent was so notified. These three committeemen, together with Grand Lodge Representative LaFont, represented the Respond- ent's employees at the initial bargaining conference held on January 19, 1953,.and at a succession of conferences held: thereafter. On January 15, 1953, some 4 days prior to the first scheduled con- ference between the Respondent and the Union, Richardson informed the committee of the rule which the Respondent would henceforth maintain governing absences from work occasioned by union business. No such rule obtained when the Respondent's employees were active in the Independent. Richardson repeatedly admitted at the hearing, and the majority fully acknowledges, that the reason for the rule was two- fold : to permit the Respondent to keep a record of the employees' pro- ductive working time, and to prevent the employees from congregating on the production floor to discuss union business during working hours. On the morning of January 28, 1953, Richardson admonished Bar- tolomucci for failing to follow the instructions given him the previous day. Bartolomucci thereupon proceeded to where Hambleton was working and informed the latter that he had a grievance. Richardson approached and asked Bartolomucci what he was doing talking to Hambleton. Both replied that Bartolomucci had a grievance. Ac- cording to the testimony of Bartolomucci and Hambleton, Richardson stated, "All right, clock out." Richardson testified that he said "Get your Committee and come to the office." The Trial Examiner credited Bartolomucci and Hambleton. Following this conversation, Richardson walked to the office. Bar- tolomucci and Hambleton, accompanied by Committeeman Hurley, proceeded to a passageway next to the office where they commenced a discussion in full view of Richardson. Deciding that the matter was one for consideration of the Grand Lodge representative, LaFont, the three men left the plant and drove to a local establishment to tele- phone LaFont. Approximately an hour later, the men returned to the plant where they were met by Richardson with their paychecks already drawn. Richardson proffering the checks to the men, in- formed them, "You quit, you walked off the job." After unsuccess- f ully attempting to reassure Richardson that they had not quit, and refusing to accept their pay, the men left the plant. 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD My colleagues apparently do not question the propriety of the Trial Examiner's resolution of the issue of credibility presented by Richard- son's statement that Bartolomucci and Hambleton should "clock out" to consider the grievance. Instead, the majority quarrels with the Trial Examiner's finding that the violation of the rule was at most technical because its purposes were served, contending that he ap- parently "overlooked certain factors" in assessing just what Richard- son meant when he used the term "clock out." The majority notes that the Respondent had in effect at the time of the discharges a companion rule governing absences for personal reasons. Pursuant to this rule, an employee's absence would be excused if he obtain prior permission to leave the plant from one of the Respondent's partners, such as Rich- ardson. Reasoning that the three men did not leave the plant on business of a personal nature, my colleagues conceive that Richardson's permission to quit work could not possibly operate to excuse their absence because "with respect to grievances and conducting union business, the words `clock out' could have meant nothing else but to follow the requirements of this plant rule [by notifying bookkeeper Gray]." Then, observing that the men did not do so, the majority concludes that "they walked directly past the office and left the Re- spondent's premises, without telling Gray or anyone else why they were leaving, where they were going, or when they would return," and that this conduct "was not merely technical, as the Trial Ex- aminer termed it." Apart from the obvious fact that the Trial Examiner considered these "certain factors" at length in making his findings in this con- nection, I am satisfied that Richardson's recorded testimony, to which the majority nowhere adverts, vindicates the Trial Examiner's obser- vation that Richardson's permission to "clock out," given in the knowledge that the men were discussing a grievance, satisfied the com- pany rule and excused the committeemen's absence from work. On April 16, 1953, Richardson testified before the Division of Unemploy- ment Compensation of the State of Illinois concerning the discharges of Bartolomucci, Hambleton, and Hurley. That testimony, which was read into the record in this proceeding, and which is properly before us,' reads as follows : The REFEREE: Let me ask you, suppose they [Bartolomucci, Hambleton, and Hurley] had clocked out, as you suggested and were told, and they decided on their own to go to see Mr. LaFont. Would there have been any objection by you if they told you about it in advance? Mr: RICHARDSON : If they had asked me, I would have let them go. 7 See Aerovo® Corporation, 104 NLRB 246, and. 211 F. 2d 640 (C. A D. C.). LLOYD F. RICHARDSON, SR., ETC. 145 The REFEREE : Suppose they didn't ask you and they had clocked out. Would you have felt that was the wrong thing to do? Mr. RICHARDSON : That is a hypothetical thing. The REFEREE : I am trying to determine whether it was the failure to clock out and the fact that they left without Mr. RICHARDSON : The fact that they failed to clock out, to distinguish the time they were on their grievance from the time they were working. The REFEREE : In other words, the company wants to pay them only for productive time? Mr. RICHARDSON : Right. And by checking out this way, we never have any argument as to whether they are neglecting or attending to grievance procedure or whether they are working. In other words, it is clear cut. The REFEREE : I understand. If having clocked out they spend their own time, in effect, whether outside the door or two blocks away from the door, the company wouldn't be too vastly concerned? Mr. RICHARDSON : Not vastly concerned because in this case, the fact that they check out separates their work time from their other time. That is what we are interested in. The REFEREE: That was the gist of the thing, so you weren't paying them for idling on company business. Mr. RICHARDSON : Either their idling or anybody that wants to talk to them. The REFEREE :... The point was made by Mr. Hurley, I think that you, as co-owner, being well aware of what was transpiring, it was in effect notice to the company there should be a difference in handling time. In other words, telling you was as good as telling Gray. Mr. RICHARDSON : I told them to check with the office. ,Some- times I am not there. [Emphasis supplied.] The foregoing testimony convinces me that Richardson's direction to "clock out" conveys a meaning distinctly at odds with the inter- pretation placed upon the phrase by the majority and entirely in consonance with that drawn by the Trial Examiner. In this testi- mony, Richardson stated with positive clarity that the Respondent would not have been concerned by absences due to union business, regardless of where they took place, so long as the Respondent was apprised of the time thus consumed and the absences did not entail disruption of productive work. Moreover, Richardson's response to the referee's question concerning whether notice to him was as effec- tive as notice to Gray in satisfying the Respondent's rule is clearly inconsistent with the majority's assertion that the phrase "clock out" 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD could have meant nothing else but inform bookkeeper Gary, and Gray alone, of the intended absences." In light of this testimony, the inconsistency between the Respondent's defense at the time of the hearing that the three committeemen were -discharged for failing to heed the Respondent's rule, and Richardson's statement at the time of their separations that the men were discharged because "You quit, you walked off the job," becomes readily apparent. In my opinion, the entire community of facts in this case, includ- ing as they do the Respondent's unconcealed animosity towards the Union expressed a little over a year prior to the discharges, its assist- ance to the Independent, its knowledge that the committeemen had transferred their allegiance from the Independent to the Union, and the summary discharge of the three elected representatives of the employees when the Respondent knew they were processing a griev- ance, fully justified the inferences drawn by the Trial Examiner that Bartolomucci, Hambleton, and Hurley were in fact discharged be- cause of their activities on behalf of the Union in violation of Section 8 (a) (3) of the Act. Viewing the case in this posture, it seems manifest that the Re- spondent's discharge of the committeemen was calculated to, and did in fact, destroy the Union's effectiveness as the bargaining representa- tive of its employees in violation of Section 8 (a) (5). Certainly, if further evidence be needed to fortify this conclusion, a brief recapitu- lation of the bargaining history should suffice. The entire committee attended the bargaining conferences on January 19 and 28, the date on which they were discharged. They continued to attend the con- ferences during February and the early part of March. On March 30, the Union's Grand Lodge representative appeared alone at the bargain- ing conference. In response to a question from one of the Respond- ent's representatives, the Union's delegate informed the Respondent that he was unable to obtain any employees to serve on the shop com- mittee with him. During conversations in the first week in April, and again on May 4 when negotiations collapsed, the Union's rep- resentative once more informed the Respondent of his singular lack of success in procuring employee representation on the bargaining committee. These circumstances clearly demonstrate the awesome impact of the Respondent's discharge of the committeemen upon the hinds of its employees. As the Trial Examiner observed, the im- pression plainly left with the employees was that if the committee could not help itself in obtaining reinstatement, it surely could not help 8 The majority's assertion that the Respondent's rule governing absences on union busi- ness could only be satisfied by checking out with Gray meets with further contradiction by Richardson 's testimony concerning what bad occurred on Febiuaiy 13, 1953, the date on which the Respondent awarded its employees a wage increase Richardson testified that, lie called Nloss into his office to discuss the increase and later sent Moss to poll the em- ployees about the matter Theie is no suggestion that Moss (lid, of was required to, "clock out" with Gray In fact, Moss was paid for the time thus spent LLOYD F. RICHARDSON, SR., ETC. 147 them as their bargaining representative. Certainly, it requires no stretch of the imagination to discern that the employees' disinclina- tion to serve on the shop committee reflected their belief that they, like the turtle, might also survive longer if they did not stick their necks out. In its attempt to undermine and discredit the Union, the Respondent did not merely stop at discharging the employees on the bargaining committee. At 2: 30 p. in. on February 13, 1953, without further dis- cussion of wages at a bargaining session, Richardson called employee Moss into his office. According to Moss, who was called as a witness on behalf of the Respondent, Richardson first inquired whether Moss was an alternate committeeman. Receiving an affirmative reply, Rich- ardson asked Moss whether he had any objection to a specified wage in- crease which the Respondent was going to grant to its employees that day. Moss said that he did not. Richardson then stated that Moss should contact "Bartolomucci or Hambleton or Hurley," and "also LaFont." At Richardson's suggestion, Moss called LaFont. Receiv- ing no answer, Moss telephoned Bartolomucci. Informed of the pro- posed increase, Bartolomucci, who had been discharged some 2 weeks previously, stated that he had no objection to the increase. Moss then telephoned Hambleton and Hurley without success. Thereupon, Rich- ardson requested Moss to poll the men in the plant to ascertain if they had any objection to the wage increase. This having been done, Rich- ardson instructed Moss to proceed to the homes of Hurley and Hamble- ton to obtain their approval. Moss could find neither of the men at home, and returned to the plant. Within 5 to 10 minutes after Moss' return, the Respondent commenced distributing its paychecks reflect- ing the wage increase. According to Richardson, these checks had been drawn prior to his requesting Moss' approval of the increases. At the next bargaining conference on February 25, Richardson for the first time presented LaFont with a wage schedule of job classifica- tions which reflected the increases granted on February 13. LaFont replied, "Don't you know that that is a violation of the law to put a wage increase into effect, especially during the period of negotiations without the approval of the union?" His question went unanswered. At subsequent bargaining conferences, the Union proposed that wage schedules reflecting greater increases be agreed upon. The majority finds that the Respondent's granting of the wage in- creases was made in good faith and was not violative of Section 8 (a) (5). In doing so, they find that because the Respondent notified Moss and Bartolomucci of the proposed increases, the Union was thereby adequately apprised of the matter before the increases were actually put into effect. Accordingly, they conclude that because Moss and Bartolomucci did not request additional time to discuss the increases, 334811-55-vol. 109-11 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and because LaFont protested against the increases only once and later additional increases were sought, the Union thereby acquiesced in the Respondent's earlier action. My colleagues do not dispute that on November 5, 1952, the Union informed the Respondent that Bartolomucci, Hambleton, and Hurley had been elected as the shop committeemen for the Respondent's em- ployees. Nor do they dispute that these three men, together with Grand Lodge Representative LaFont, were the only authorized rep- resentatives certified to the Respondent as such, and were the only representatives to appear on behalf of the employees at the bargaining conferences preceding the increased wage award. The Respondent therefore knew with whom it had to deals Moreover, the record plainly demonstrates that the Respondent had established a pattern for notifying the Union about impending bargaining conferences and the matters to be considered. This pattern, from which the Respond- ent never deviated prior to the wage increases, shows the Respondent as addressing its communications exclusively to the Grand Lodge representative. In fact, on February 13, the date on which the wage increases were granted, Richardson insisted that Moss contact LaFont concerning their award. This course of conduct clearly suggests that the Respondent was fully aware that notice to LaFont, certainly the most skilled union representative at the bargaining table, was neces- sary in order to enable the Union to respond effectively to the wage proposal. Its failure to apprise LaFont is, in my opinion, but an- other of the many instances of the Respondent's determination to circumvent the authorized bargaining representative and deprive him of any voice in establishing the employees' wage structure io But even assuming, as the majority assures us, that the Respondent's notice to the Union was properly directed, I fail to perceive how my colleagues can seriously contend that the Union's duly authorized bargaining committee was afforded sufficient time to consider the wage matter, or that the Union subsequently acquiesced in the Respondent's unilateral action. The Respondent conceded that its decision to grant the wage increases was reached prior to February 13, and acknowledged that the paychecks reflecting these increases were drawn up before the Respondent made its colorable and in- effectual attempt to obtain the Union's approval. Both the amount of the increases, and the manner in which they were to be distributed, unilaterally predetermined by the Respondent during a period in which the Union had presented wage proposals for bilateral con- sideration, were made known by the Respondent for the first time at 2: 30 p. in. on the day on which the increases were made effective. The first person whose consideration and approval was sought was 9 See Cruwn Zellerbach Corporation, 95 NLRB 753. 20 Ibid LLOYD F. RICHARDSON, SR., ETC. 149 Moss, an employee with whom the Respondent had never before dealt concerning its employees' terms and conditions of employment. Solicited in the presence of several of the Respondent's officials, Moss' approval was quickly given. Significantly, Moss was then instructed to contact LaFont, Hambleton, Hurley, and Bartolomucci for their consideration and approval. Only Bartolomucci was reached. Moss then was directed to poll the employees. This was done. Moss was then-instructed to visit the homes of Hambleton and Hurley. Neither one was home. Upon Moss' return, the increases were distributed, less than 2 hours after their award was proposed. What was the Respondent's purpose in attempting to contact LaFont, and later attempting to contact Hambleton and Hurley after Bartolomucci had manifested his assent, and after Moss had telephoned Hambleton and Hurley without success, unless the Respondent was aware that only LaFont and the entire shop committee was the proper agency to consider and approve the Respondent's wage plan? Why did the Respondent, with such precipitate haste, effectuate the increases when it might have contacted LaFont and the committeemen later that day or the next, or even at a bargaining conference scheduled by the parties for February 25, less than 2 weeks hence? Why did the Respondent poll the employees without first permitting their skilled, authorized representative to advise them of the impact of these proposals upon the Union's bargaining strategy? These ques- tions go to the very heart of the Respondent's bona fides in granting the increases. They beg for answers. Summarily finding that the Respondent acted in good faith, my colleagues supply none. In my opinion, these questions suggest but one answer : The Respondent, having gone through the motions of attempting to notify the authorized union representative concerning a wage increase which it had unilaterally predetermined, was intent upon avoiding any genuine bargaining with those representatives with respect to the issue and , for no cogent reason, so timed the wage award as to pre- clude any effective consideration of the proposal by the Union. The cases are too numerous to require extensive citation in which the Board and the courts have found that an employer fails to bargain in good faith where proposed changes in the terms or conditions of employment are placed in effect without affording the employees' bargaining representatives sufficient time in which to consider the matters 11 In Tower Hosiery Mills, Inc., with court approval, the Board ruled that notice of a proposed wage increase received by the union only 2 days before the effective date of the increase, those 2 days being Saturday and Sunday, "served merely to notify the Union of a fait accompli." I submit that notice to the Union herein, I 'E. g, Tower Hosiery Mills, Inc., 81 NLRB 658, 662, enfd . 180 F. 2d 701 (C. A. 4), cert. denied 340 U. S. 811 ; Tomlinson of High Point, Inc., 74 NLRB 681, 687. 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such as it was, given but 2 hours before the increases become effective, served the same purpose. Although I believe the tactics of the Respondent completely negatives the Respondent's asserted good faith, I would further note that the majority's finding of good faith is not dispositive of the issue of a violation. In the Tower Hosiery and Tomlinson 12 cases cited, it was held that the failure to give adequate notice of such proposed action is a per se violation of Section 8 (a) (5). To further support their finding that the Respondent did not offend Section 8 (a) (5) of the Act by granting the wage increases, my colleagues observe that the Union acquiesced in the Respondent's action by the failure of Moss and Bartolomucci to ask for additional time to consider the matter, and by the Union's protesting the in- creases but once thereafter and requesting additional increases. Apart from the obvious fact that neither Moss nor Bartolomucci possessed the authority to bind the Union' 13 I am at a loss to under- stand how the Union's vigorous protestation against the increases at the February 25 bargaining session, and its insistent demands there- after that the Respondent's wage schedules contain higher increases than those already granted, portrays acquiescence. I know of no more impressive format for registering objection than that disclosed by the Union ; nor am I aware of any doctrine that an objection must be made more than once. Viewing the facts in their entirety, I am firmly convinced that there was bad faith in connection with the grant of the wage increases without adequate notice to the Union and that in any event the Respondent's conduct was in this respect per se a violation of Section 8 (a) (5) of the Act. MEMBER BEESON took no part in the consideration of the above Decision and Order. 22 See footnote 11, supra. 13 See footnote 9, supra. Intermediate Report STATEMENT OF THE CASE Pursuant to a first supplemental charge filed on June 19, 1953,1 by Lodge No. 628, International Association of Machinists, AFL, herein called the Union, the General Counsel of the National Labor Relations Board by its Regional Director for the Thirteenth Region (Chicago, Illinois ), issued his complaint dated July 2, 1953 against Lloyd F. Richardson, Sr., Lloyd F. Richardson, Jr.,' and William L. Richardson, d/b/a Richardson Manufacturing Company, herein called Respondent, alleging that Respondent had engaged in certain unfair labor practices affecting commerce within the meaning of Section 8 (a) (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. 1 An original charge was filed on February 12, 1953. 2 Lloyd F. Richardson , Jr., is hereinafter referred to simply as Richardson. LLOYD F. RICHARDSON, SR., ETC. 151 Copies of the charge, complaint, and notice of hearing were duly served upon Re- spondent and the Union. With respect to the unfair labor practices the complaint alleged, in substance, that Respondent (1) since on or about January 28, 1953, has refused to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit, in that on that date Respondent discharged Nicholas Bartolomucci, Paul Hurley, and Harry Hambelton, who constituted the Union's bargaining com- mittee; since on or about March 17, 1953, refused to meet or bargain with the Union, and insisted as a condition precedent to bargaining that certain persons in addition to those designated by the Union be selected as its representatives for pur- poses of collective bargaining; (2) during the months of September, October, No- vember, and December 1952, and January 1953, reduced the hours of overtime work of Bartolomucci because of his union membership and activity; and (3) discrimina- torily changed the content of Bartolomucci's job for the same reason. The discharge of Bartolomucci, Hurley, and Hambelton is also alleged to have been violative of Section 8 (a) (3) of the Act. On July 13, 1953, Respondent filed its answer admitting certain allegations of the complaint with respect to the nature of its business, but denying the commission of any unfair labor practices. Pursuant to notice, a hearing was held at Springfield, Illinois, from July 20 through July 24, 1953, before me, the undersigned Trial Examiner. The General Counsel and Respondent were represented by counsel and participated in the hearing. The Union was represented by a Grand Lodge rep- resentative. Full opportunity to be heard, to examine and cross-examine the wit- nesses, and to introduce evidence bearing upon the issues was afforded all parties. During the hearing the complaint was amended to allege, as a further instance of Respondent's refusal to bargain in good faith, that at a bargaining meeting in Janu- ary or February 1953, Respondent made a wire recording of the proceedings secretly and without notice to or approval by the Union. At the conclusion of the hearing the parties waived oral argument and were given until August 13 to file briefs with me. Subsequently the time in which to file briefs was extended until September 14. Both the General Counsel and Respondent filed timely briefs. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a partnership having its sole office and plant in Springfield , Illinois, where it is engaged in the manufacture and sale of machine parts and equipment. Respondent in the conduct of its operations has continuously caused quantities of materials valued in excess of $50,000 annually to be purchased and transported in interstate commerce to its plant in Springfield, Illinois, from and through the States of the United States other than the State of Illinois. Respondent similarly sells and causes to be shipped in interstate commerce from its Springfield plant finished prod- ucts in excess of $100 ,000 annually. At the time of the events herein related Re- spondent employed approximately 23 employees. II. THE LABOR ORGANIZATION INVOLVED Lodge No. 628, International Association of Machinists, affiliated with the Ameri- can Federation of Labor, is a labor organization admitting employees of Respondent to membership. M. THE UNFAIR LABOR PRACTICES A. The refusal to bargain and the discriminatory discharges 1. The appropriate unit and the Union's majority therein The complaint alleges, the answer admits, and I find that all production and maintenance employees of Respondent, excluding office and clerical employees, guards, professional employees, and supervisors as defined in the Act, constitute and at all material times herein have constituted a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (a) and (b) of the Act. The complaint alleges, the answer admits, and I find that since September 18, 1952, the Union has been the duly certified bargaining representative in the above described unit. I 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The refusal to bargain; the discharge of Bartolomucci, Hambelton, and Hurley (a) Background In the fall of 1951, at a time when the Union was first attempting to organize Respondent's employees, Independent Employees Association, herein called the In- dependent, an organization confined to Respondent's employees, was formed. It held meetings in the plant and was extended other assistance by Respondent. Nicholas Bartolomucci, whose subsequent discharge along with Hambelton and Hurley com- prises the principal subject matter of this case, was active in forming the Independent and became its first vice president. He testified without contradiction to a conver- sation with Richardson in which the latter, referring to the discharge of four em- ployees, coinciding with the beginning of the organizational activities of the Union, said: "Well, we got rid of these fellows. There won't be no union coming in here." Bartolomucci testified, again without contradiction, that when the contract with the Independent was consummated one of the Richardsons remarked: "Well, this will keep them out for three years." It is apparent that Richardson was refer- ring to the efforts of the Union to organize. Bartolomucci, however, soon became dissatisfied with the Independent and in June 1952, at one of its meetings , he, Hambelton, Kelly, and another employee, were named as a committee to make contact with the Union. Notice of the Union's first organization meeting, held at Bartolomucci's home, was posted on Respondent's bulletin board. At this meeting and at a subsequent one, also held at Bartolomucci's home, a number of the employees signed up in the Union. Bartolomucci, Hambel- ton, and Herbert Kelly were selected as the Union's temporary shop committee, with Bartolomucci as chairman, and Respondent was advised of it by a letter from the Union dated July 21, 1952. A Board-conducted election was held on September 10 which the Union won. This was followed on September 18 by its certification by the Board as the bargaining representive of the employees. On November 5, after the Union's certification, the Union advised Respondent by letter that Hurley, Bartolomucci, and Hambelton had been chosen as its permanent shop committee, with Hurley as chairman. On November 14, 1952, the Union forwarded a proposed contract to Respondent and requested a meeting to discuss it. The parties met on January 19, 1953, with the Union represented by Hurley, Hambelton, and Bartolomucci, and by Edward LaFont, a Grand Lodge representative. Richardson, Richardson, Sr., and other representatives of Respondent were present. Some discussion of the terms of the proposed contract took place and another meeting was agreed upon for January 28 at 1 p. m. (b) The discharge of the bargaining committee On the morning of January 28 , Respondent discharged Bartolomucci , Hurley, and Hambelton under circumstances which are hereinafter described . I turn first how- ever, to the work history of Bartolomucci , since it was due to a grievance claimed by him that he and the other two were terminated. Bartolomucci came to work for Respondent in July 1950 as a sheet metal worker, his first duties consisting of the insulating of refrigerator doors. Subsequently he came to perform various other jobs in the plant . In April or May 1951 he was put to work on a Farnham machine . He continued on this until about November 1952, when he was put on a burner, a metal cutting machine which rested upon a table and cut pieces of steel into 211/2 inch lengths. After cutting these pieces Bartolomucci ordinarily used a semimechanical hoist to transfer them from the table directly to the floor, or onto pallets resting upon the floor , the latter when they are to be picked up and shipped . On the afternoon of January 27 Richardson instructed Bartolo- mucci, for the first time during his work on the burner, to lift the cut pieces by hand rather than by hoist, and to place them on pallets. When Bartolomucci protested that they were too heavy and asked for help , Richardson told him that he could not spare him anyone. No reason was given Bartolomucci for the direction to forego the use of the hoist and none was advanced at the hearing. At about 7: 30 on the following morning, a half hour after work commenced, Richardson observed that Bartolomucci was continuing to stack the cut pieces directly on the floor instead of on pallets , and when Richardson asked him why he had not placed them on pallets as directed Bartolomucci replied that the night shift had not done so and , in effect, that he did not see why he should . Richardson warned Bartolomucci that in the future , if he did not follow instructions, he would be dis- charged. Bartolomucci, followed by Richardson , then went over to where Hambel- ton was working, a distance of a few feet, and told him that he had a grievance. LLOYD F. RICHARDSON, SR., ETC. 153 Richardson overtook Bartolomucci at Hambelton's machine and asked him if he had business there, to which Bartolomucci replied to him similarly, that he had a grievance. So far, there is no substantial dispute in the record . The next statement attributed to Richardson, however, is in controversy. According to both Bartolomucci and Hambelton, upon being informed by Bartolomucci that he was lodging a grievance with Hambelton, Richardson said: "All right, clock out." Richardson's testimony on the other hand is that he said: "Get your Committee and come to the office." I credit the testimony of Bartolomucci and Hambelton on this point. Following this conversation Richardson went to his office while Bartolomucci and Hambelton picked up Hurley and proceeded toward the plant entrance. This was shortly before 8 a. m. After a few minutes' conversation at the door they stepped outside, again conferred briefly, and got in Hurley's car and drove to a nearby cafe where they telephoned LaFont. They returned shortly before 9 a. m. with, I find, the intention of resuming work. As they entered the plant door they were stopped by Richardson who told them that he considered that they had quit their jobs. They re- plied that they had not. The three men stood in the entrance lobby until Richardson obtained their final paychecks. They refused to accept them and left the plant. (c) Continued meetings between Respondent and the Union As has been stated, at the meeting between the Union's representatives and those of Respondent on January 19 it had been agreed to meet again on January 28 at 1 p. m. This was on the afternoon of the day of the discharge of Bartolomucci, Hambelton, and Hurley, the Union's bargaining committee. The meeting took place as scheduled with the discharged committee present, and in addition LaFont and another representative of the Union. Richardson, Richardson, Sr., L. E. Gray, Respondent's bookkeeper, and Respondent's counsel were present for Respondent. As might be expected the discussion chiefly concerned the discharge of the commit- tee, LaFont demanding that its members be put back to work and Respondent refusing to do so. This meeting was followed by 6 or 7 others at which Fred Vogelsang, a special representative of the Union, substituted for LaFont. At all but the last meeting, that of March 30, the members of the discharged bargaining committee were present. Hanna's credited testimony is that at the meeting on March 30 he asked Vogelsang where the Union's committee was and Vogelsang replied that he did not know but that he was willing to proceed in their absence . Some agreement was reached on certain provisions of a contract. When the meeting concluded Hanna asked Vogel- sang about another meeting to which Vogelsang replied that he would have to get another bargaining committee. During the first week in April , Vogelsang, according to his testimony , telephoned Hanna and told him that he could not get another committee together, but asked for a meeting. On cross-examination he admitted that he also told Hanna that he would be out of town and would let Hanna know'when he returned. While I find it true that Vogelsang was unable to find employees willing to serve on the bargaining com- mittee, I do not find that this was the reason for not meeting in April, but rather Vogelsang's expected absence from the city. Vogelsang next got in touch with Hanna on May 4 or 5 when he telephoned him to arrange the date of a further meeting. What was said between them is in dispute. The testimony of Vogelsang is that he told Hanna that he had experienced difficulty in getting a bargaining committee of employees and asked Hanna for a meeting without such a committee, to which Hanna replied that Respondent would meet with him when (he) got a committee." Hanna's testimony is that he merely inquired if Vogelsang had succeeded in obtaining a bargaining committee , and when Vogelsang replied that he had not, he asked him if he wished to proceed, to which Vogelsang expressed his reluctance to do so, stating that the employees themselves should know at first hand what transpired at the negotiations. Vogelsang, still according to Hanna, said that he would see what could be done about forming a new committee and would again get in touch with him . No new committee was formed, no representative of the Union requested a further meeting , and none was held. I credit Hanna's testimony, the gist of which is that the Union, not Respondent, suggested the advisability of continuing negotiations only in the presence of a bar- gaining committee of employees, and that Respondent at no time took an adamant stand in opposition to it or conditioned further bargaining upon it. I base this conclusion partly upon the fact that Respondent had met with representatives of the Union on every occasion but that of March 30, when the Union's committee for the first time failed to show up, and no reason appears why it should refuse to do so thereafter. Moreover, I find Vogelsang's recollection faulty in some respects, for 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD example as to the date of the last bargaining meeting, which he placed as occurring on March 17, but which I have found took place on March 30. Also, when asked on cross-examination whether it was his own idea that a committee should be present during the negotiations, he testified that he said he thought it would be desirable, although he did not think that he suggested it. Moreover, Vogelsang's testimony on direct is not that Hanna refused to meet with him in the absence of a committee, but told him only that Respondent would meet with him when he got a committee. I do not find, as alleged in the complaint, that Respondent refused to meet with the Union after March 17, 1953, nor do I find that Respondent conditioned further bargaining upon the presence of a committee. This does not affect my finding here- inafter, on other grounds, that Respondent failed to bargain with the Union.2 (d) Respondent's defense to the discharges Respondent's defense to the discharge of Bartolomucci, Hambelton and Hurley, is that they left their places of work and Respondent's premises during working hours without prior permission, in violation of an established rule. It is not con- tended that there was any formal rule posted in the plant with respect to the clocking out of employees before their regular quitting time. Respondent, however, cites an instruction given the three committee members by Richardson on January 15, con- cerning which there is no dispute, to the effect that thereafter when an employee had a grievance or there was any union business to be conducted he should go to the office, check out with Gray, discuss the grievance, and check back in again. Richardson admitted that this instruction pertained solely to discussion of union business and not to any other matters with which the employees might be concerned, and testified that it was designed to prevent employees from congregating on the work floor. There was no time clock in the plant, and the practice when an employee desired to absent himself from the plant was to obtain permission before leaving, and at the end of the day to deduct the time lost by making a notation on his work slips. It is evident that a further purpose for Respondent's "rule" as to checking out was that Respondent might keep accurate record of the time spent on business other than that of production. When Richardson told Bartolomucci and Hambelton to "clock out" and the committee left the plant, the purposes of Respondent's "rule" were served. There was no congregating on the floor and Richardson had knowledge of the time they stopped their work, thus enabling him to note their departure. As to making the customary notations on their time slips at the end of the day, Bartolo- mucci, Hambelton, and Hurley were unable to do this because, admittedly, the Respondent did not permit them to reenter the plant upon their return shortly before 9 a. in. Conclusions There was some evidence introduced by Respondent to show prior dissatisfaction with Bartolomucci as an employee. One instance cited is that when he was trans- ferred to the Farnham machine in 1952, he stated that the machine made him nervous and dirty and that he did not like to operate it, took too long in oiling it, and completed several pieces of material unsatisfactorily. I am not impressed by these instances, which appear to me to be trivial in character. Moreover, they were not assigned as a reason for his discharge on January 28, Richardson at the time advancing only the reason that the three men had "quit." This reason is not con- sistent with the defense made at the hearing, which is the alleged violation of a company rule. Moreover, any prior dissatisfaction with Bartolomucci's work would not suffice to explain the termination of Hambelton and Hurley , concerning whose efficiency as employees no question was raised. 2 An additional allegation that Respondent, in January or February 1953, by making a wire recording of the proceedings of one of the bargaining meetings, secretly and without notice to or approval by the Union, failed to bargain in good faith, I find to be without merit under the circumstances obtaining here. A recording device which transcribed what was said by the representatives of the parties admittedly was set up in an adjoining room, with a communicating door open. It was done, it is true, without the prior knowledge or approval of the Union's representatives. But it could record no more than Respondent's representatives themselves heard or more than any representative of either party could have recorded by taking notes if he had been so disposed. Furthermore, no subsequent use was made of the recording. My finding would perhaps be otherwise had the parties agreed that no notes should be made of the meeting, or had disagreed as to the method of doing so. Such was not the case here. LLOYD F. RICHARDSON, SR., ETC. 155 Nor do I see here any actual violation of Respondent's instructions of January 15. I have found that when Bartolomucci told Richardson on the plant floor in the presence of Hambelton that he had a grievance , Richardson told both of them to clock out , without saying anything about coming to the office . This constituted permission to quit work. It has been found that instead of going to the office the three left the plant to confer with the Union's representative , returning an hour later with the intention of going to work. Assuming a violation of Respondent's "rule," it was at the most a technical one, since the purposes of the rule, that is Respondent's knowledge of the time of leaving work and the prevention of congre- gating on the plant floor, were both served. On the record viewed as a whole I find that the reason which Respondent later came to advance for the discharge of the Union 's bargaining committee was a pretext but little more persuasive than its original reason, that they had quit their employment. While it may be granted that it would have been a preferable pro- cedure for the committee to have waited until the end of the day to take up Bartolomucci's grievance with the Union's representative and with Respondent, and even assuming, which I do not, a technical violation of the instructions of January 15, I believe that Respondent would not have resorted to the extreme penalty of discharge had it not been for their union activities. As I have found, Respondent had encouraged and assisted the formation of the Independent . Richardson, according to his own statement, viewed the contract with the Independent as an effective means of keeping out the Union, and expressed the belief that the previous discharge of four employees would serve the same purpose. Bartolomucci had been the most active of the employees in forming the Independent. Subsequently, he became dissatisfied with the Independent and took the lead in forming the Union. Still later, the Union's bargaining committee was told that they must clock out when handling union business, a requirement which the record shows had not been imposed upon them when they were active in the Independent. Respondent must have foreseen the impact upon the minds of the employees which would result from the discharge of their representatives on the very day Respondent was due to resume contract negotiations . While it is true that the meeting took place as scheduled , with the bargaining committee present , it is also evident that its prestige must have been seriously impaired by the discharge of its members and its effectiveness as a bargaining representative destroyed. The employees could draw but one conclusion: if the committee could not help itself it could not help them. That this would be the effect is so apparent that it is difficult not to believe that that was Respondent 's purpose. The consequence, inevitably, was the final disinte- gration of contract negotiations , a result clearly attributable to Respondent. I have found above that Respondent did not, by refusing to meet with any repre- sentative of the Union after March 17, or by insisting upon the presence of a committee of employees as a condition precedent to continued meetings , or by making a recording of one meeting, thereby fail to bargain in good faith with the Union. This was not the gravamen of Respondent's offense, which was, to repeat, that by discharging the employees who composed the bargaining committee it destroyed its effectiveness and disrupted the bargaining negotiations . By this action Respondent dictated, in effect, who should and who should not sit on the other side of the bargaining table. In this case the discriminatory discharges are inseparable from the refusal to bargain. I find that Respondent, by discriminating with respect to the hire and tenure of employment of Nicholas Bartolomucci, Harry Hambelton, and Paul Hurley by discharging them on January 28, 1953, thereby failed to bargain in good faith with the Union and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Thereby Respondent violated Section 8 (a) (3) and (5) of the Act. B. Other alleged discrimination against Bartolomucci The complaint alleges that during the latter part of 1952 and in January 1953 Respondent discriminatorily reduced Bartolomucci 's hours of work and changed the content of his job. The record shows that during the first 6 months of 1952, before the beginning of union organization, Bartolomucci performed approximately 222 hours of over- time work, in contrast with 133 hours for Goodson, another employee, whereas during the next 6 months, after he became active in the Union , he worked only 103 hours overtime compared with 188 hours for Goodson. Between October 24 and December 5, 1952, Bartolomucci worked overtime 30 hours while Smith, a new employee, worked 70 hours. All three of these employees did substantially the same work. 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In view of Respondent's demonstrated hostility to the Union, as instanced, among other things, by his subsequent discharge of Bartolomucci, this disparity in hours of overtime creates the suspicion that it, too, was motivated by Bartolomucci's union activity. Suspicion, however, is not enough. The record does not reveal that Bar- tolomucci every requested to work overtime and was refused, or that he ever pro- tested when such work was not assigned him. It shows, on the other hand, that on occasion he refused such work when it was offered. Reference has been made to the fact that on the afternoon before his discharge Richardson instructed Bartolomucci to remove the material on which he was work- ing on to pallets by hand, rather than by the hoist he had ben using. I do not find that this change in method amounted to a change in the content of his job, as that term is generally understood, and as is contended by the General Counsel. It does not appear, partly no doubt by reason of the fact that he was discharged the next day, that this requirement was more than temporary. I find that the General Counsel has not met the burden upon him of establishing discrimination in these two respects by a preponderance of the credible evidence. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCI i The activities of Respondent set forth in section III, above, occurring in connec- tion with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since I have found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. I have found that Respondent discharged Nicholas Bartolomucci, Harry Hambel- ton, and Paul Hurley, the Union's bargaining committee, on January 28, 1953, be- cause of their union membership and activity. I will therefore recommend that Respondent offer each of them immediate and full reinstatement to his former or substantially equivalent position,3 without prejudice to his seniority and other rights and privileges and make each of them whole for any loss of pay he may have suf- fered equal to the amount he would have earned as wages from the date of his dis- charge to the date of the offer of reinstatement less his net earnings' during said period, to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Co .5 Having found that Respondent has refused to bargain collectively in good faith with the Union as the representative of the employees in an appropriate unit, I will recommend that Respondent, upon request, bargain collectively with the Union as the exclusive statutory representative of the employees in the unit herein found appro- priate and, if an agreement is reached, embody such understanding in a signed agree- ment. I have found that Respondent has interfered with, restrained, and coerced its em- ployees. In my opinion Respondent's conduct discloses a fixed purpose to defeat self-organization and its objectives. Because of Respondent's unlawful conduct and its underlying purpose I believe that the unfair labor practices found are persuasively related to the other unfair labor practices proscribed by the Act, and that the danger of their commission in the future is to be anticipated from the course of Respond- ent's conduct in the past. The preventative purposes of the Act, in my opinion, will be thwarted unless the recommendations are coexistent with the threat. In order therefore to make effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor practices and to minimize strife which burdens and ob- structs commerce, and thus to effectuate the policies of the Act, I will recommend that Respondent cease and desist from infringing in any manner upon the rights guaranteed by Section 7 of the Act.6 Having found that the General Counsel has failed to sustain the burden of proving that Respondent failed to bargain in good faith with the Union by secretly recording the proceedings of a bargaining meeting or discriminated against Bartolomucci, by O The Chase Natsonal Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB, S27. Crossett Lumber Co., 8 NLRB 440. 90 NLRB 289 ON. L R B V. Express Publishing Company, 312 U. S 426 ; N. L R. B. v. Entwistle Manufacturing Co., 120 F. 2d 532 (C. A. 4). LLOYD F. RICHARDSON, SR., ETC. 157 withholding overtime work from him because of his union membership and activity, or by changing the content of his job, I will recommend that the complaint be dis- missed in these respects. Upon the basis of the foregoing findings of fact and upon the entire record in the case I make the following: CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2 (6) and (9) of the Act. 2. Lodge No. 628, International Association of Machinists , AFL, is a labor organ- ization within the meaning of Section 2 (5) of the Act. 3. By discharging Nicholas Bartolomucci , Harry Hambelton, and Paul Hurley, on January 28, 1953, Respondent has violated Section 8 (a) (3) of the Act. 4. All production and maintenance employees of Respondent , excluding office and clerical employees, guards, professional employees, and supervisors as defined in the Act, constitute, and at all times material herein have constituted , a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9 (a) and (b) ofthe Act. 5. Lodge No. 628, International Association of Machinists, AFL, at all times on and after September 18, 1952 , has been the exclusive bargaining representative within the meaning of Section 9 (a) of the Act of all employees in the aforesaid unit for the purposes of collective bargaining. 6. In refusing to bargain collectively with Lodge No. 628 , International Associa- tion of Machinists, AFL, by discharging its bargaining committee , Respondent has engaged in and is engaging in an unfair labor practice within the meaning of Sec- tion 8 (a) (5) of the Act. 7. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 9. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. 10. Respondent has not by making a secret recording of the proceedings of a bargaining meeting, by denying overtime pay to Bartolomucci , or by changing the content of his job, engaged in unfair labor practices. [Recommendations omitted from publication.] Appendix A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify our employees that: WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Lodge No. 628, International Association of Machinists, AFL, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and 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. WE WILL offer to the employees named below immediate and full reinstate- ment to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. Nicholas Bartolomucci Harry Hambelton Paul Hurley WE WILL bargain collectively upon request with the above-named Union as the exclusive representative of all employees in the bargaining unit described herein with respect to rates of pay, hours of employment, or other conditions 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of employment and, if an understanding is reached , embody such understanding in a signed agreement . The bargaining unit is: All production and maintenance employees, excluding office and clerical employees, guards, professional employees, and supervisors as defined in the Act. All our employees are free to become or remain members of the above-named Union or any other labor organization . We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any em- ployee because of membership in or activity on behalf of any such labor organization. LLOYD F. RICHARDSON, SR., LLOYD F. RICHARDSON, JR., AND WILLIAM L. RICHARDSON, D/B/A RICHARDSON MANUFACTURING 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. T. C. WHEATON COMPANY AND WHEATON GLASS COMPANY and DISTRICT No. 1, INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL, PETI- TIONER. Cases Nos. 4-RC-2149 and 4-RC-250. July 12, 1954 Decision, Direction of Election, and Order Upon separate petitions duly filed under Section 9 (c) of the Na- tional Labor Relations Act, a consolidated hearing was held before William Naimark, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board 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. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The appropriate units : The Petitioner seeks to sever separate units of welders and ma- chinists from an existing production and maintenance unit. The Employer and the Intervenors, Glass Bottle Blowers Association of the United States and Canada, AFL, and its Local No. 219, contend that (1) craft units are not appropriate in the glass industry' and 1 The Board has held that, with certain exceptions not applicable in this case , the right of separate representation should not be denied the members of a craft group merely be- cause they are employed in an industry which involves integrated production processes and in which the prevailing pattern of bargaining is industrial in character . Accordingly, we reject this contention . American Potash & Chemical Corporation, 107 NLRB 1418. 109 NLRB No. 28.