Sterling Cabinet Corp.

6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD election return, which is inconsistent with proper election procedure. We therefore adopt the Regional Director's recommendation and shall set aside the election and order that a new election be held. [The Board set aside the election held on March 9, 1954.] [Text of Direction of Election omitted from publication.] STERLING CABINET CORP. and DISTRICT 15, INTERNATIONAL AssoclA- TION OF MACHINISTS . Case No. O-CA-2586. July 7,1954 Decision and Order On August 7, 1953, Trial Examiner James A. Corcoran 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. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that such allega- tions be dismissed. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report; the Respondent also filed a supporting brief., The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the exceptions, modifications, and additions noted below. 1. We agree with the Trial Examiner that the Respondent, in viola- tion of Section 8 (a) (1) of the Act, interfered with, restrained, and coerced employees in the exercise of their self-organizational rights guaranteed by the Act. In so doing, however, we rely upon the credited testimony which shows that: (a) Between June 13 and 17, the Respondent's President Solin threatened employees with loss of overtime if a new union came in; 2 (b) on June 18, Fraiman, an official of the Respondent, after accusing Bergenfeld of starting the 1As the record, exceptions , and brief adequately present the issues and positions of the parties , we deny the Respondent's request for oral argument 2 Unlike the Trial Examiner, we do not find that President Solin also unlawfully threat- ened employees with loss of overtime if the Machinists' representation petition was not withdrawn, as the evidence supporting this threat is based on the hearsay testimony of Bergenteld that employees gave him that information. 109 NLRB No. 1. STERLING CABINET CORP. 7 union trouble, warned him that he did not have to furnish overtime, and effectively implemented this warning by depriving Bergenfeld of overtime that evening because he had "signed the [Machinists'] cards"; (c) Fraiman told employee Singleton that he did not feel that Singleton was "on his side" as he should be and that he knew all the employees who were. Fraiman thereupon promised Singleton a wage increase and all the overtime he wanted, impliedly conditioning such grants on Singleton's withdrawal of support from the Machin- ists; (d) Fraiman asked Simmons which union he favored; and (e) the Respondent permitted the United Mine Workers during working hours and on the Respondent's premises to solicit employee signatures to a proposed agreement with the Respondent shortly after the Ma- chinists was certified through a Board election as the exclusive bar- gaining representative of the Respondent's employees.-' However, we do not adopt the Trial Examiner's findings that the following statements made by the Respondent's officials violated Sec- tion 8 (a) (1) of the Act: (a) Solin's remarks to employees on June 13 that he preferred the United Mine Workers to the Machinists be- cause the Respondent could not do business except under agreement with the United Mine Workers for the reason that the Respondent could not pay the Machinists' higher wage rates; (b) Fraiman's state- ment to employee Darman disapproving Bergenfeld's efforts to bring the Machinists into the plant and expressing his (Fraiman's) satis- faction with the United Mine Workers; (c) Solin's statement to em- ployees, which Darman allegedly overheard through a partly open door, that "anybody goes to the union [Machinists'] meeting tonight, he won't be able to work here any more"; and (d) Solin's remarks to Darman that he was not "so hot" and that he didn't "cooperate,", which were made during a period when the United Mine Workers was soliciting signatures to a proposed contract. We find that state- ments (a) and (b) were privileged expressions of preference based on economic considerations which were not accompanied by any threats of reprisal or promises of benefit.4 With respect to (c), this statement, which was allegedly overheard, was not corroborated by any employee to whom it was directed. For this reason and the fact that it is not claimed that Darman overheard Solin's complete re- marks, we do not believe that the alleged statement is sufficient evi- 3 Contrary to the statement in the Intermediate Report, the complaint does not allege that this solicitation occurred in November 1952, although it does allege that it occurred after the Machinists ' certification Moreover , the record indicates that the solicitation occurred both before and after the Machinists ' certification i,hich was issued on October 16, 1952. The Respondent 's denial that it has shown any tavoritism to the United Mine Woikers is belied by the evidence in this case upon which we base our unfair labor practice findings. Moreover, although not alluded to in the Intermediate Report , the record discloses that the Respondent sought to prevent Bergenfeld from distributing union literature in front of its premises by resort to police action 4 N. L. R. B. v. Syracuse Color Press, Inc., 209 F. 2d 596 (C. A. 2). 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dente upon which to base an affirmative finding. As for (d), we find that this statement, at most, was ambiguous and could, with equal reason, relate to Darman's conceded unwillingness to cooperate with employee Wilson.5 On the other hand, we agree with the General Counsel that the Trial Examiner erred in not finding that, in addition to the coercive conduct discussed above, the Respondent engaged in the following acts which are also violative of Section 8 (a) (1) : (a) on June 18 the Respondent permitted the United Mine Workers to hold a meet- ing on its premises during working hours for the purpose, perhaps unknown to the Respondent, of ascertaining the identity of employees responsible for bringing the Machinists into the plant, and paid em- ployees who would otherwise have been working, fo>;- the time spent at this meeting; (b) Fraiman told employee Darman, although not a member of the United Mine Workers, to attend this meeting; (c) on June 24, Fraiman directed employees Singleton and Gonzalez to go to the United Mine Workers' office in connection with presenting to the Board a petition signed by employees repudiating the Machinists and requesting withdrawal of the Machinists' representation peti- tion; 6 and (d) the Respondent paid Singleton and Gonzalez for the time thus spent away from the plant at the offices of the United Mine Workers and the Board's Regional Office, as well as the em- ployees who were on strike when the withdrawal petition was signed. We find that the foregoing conduct, particularly in the light of the other unfair labor practices found herein, constituted unlawful assistance to the United Mine Workers with the manifest purpose of defeating the organizational efforts of the Machinists.7 The fact that this assistance may not have been accompanied by threats of reprisal or promises of benefit is, contrary to the Trial Examiner's opinion, immaterial.8 6 As discussed in the Intermediate Report, the inability of Darman to get along with Wilson was a principal reason for Darman's discharge , rather than Darman's union ac- tivities, as alleged in the complaint. We agree with the Trial Examiner's findings in this respect G As discussed in the Intermediate Report and shown in the record, the withdrawal peti- tion was signed and subsequently presented to the Board under these circumstances : On June 23 the United Mine Workers called out the employees on strike allegedly in protest to Bergenfeld's discharge on June 20 While on the strike, the United Mine Workers in- duced the strikers to sign a petition withdrawing their support from the Machinists and requesting the withdrawal of the Machinists ' representation petition with the understand- ing that all the employees including Bergenfeld would be returned to work the next day. On June 24 , all employees returned to work except Bergenfeld who, in the presence of Fraiman, was physically restrained from entering the plant by a United Mine Workers' representative because Bergenfeld refused to comply with the United Mine Workers' demand to present the signed withdrawal petition to the Regional Office of the Board. Later that morning Frai nian sent Singleton and Gonzalez on this mission 7 We note also, although it is not mentioned in the Intermediate Report, that the Re- spondent admitted at the hearing that it had designated a particular employee as its observer at the Board election at the request of the United Mine Workers, which was not entitled to participate in the election because of its noncompliance with the non -Commu- nist affidavit requirements of the Act. 8 Phillips & Buttori Manufacturing Corp., 96 NLRB 1091. STERLING CABINET CORP. 9 2. We agree with the Trial Examiner that the Respondent, in vio- lation of Section 8 (a) (3) and (1) of the Act, discriminatorily discharged Bergenfeld on June 20, 1952, and on July 7, 1952, follow- ing his reinstatement, because of his Machinists' membership and activities. However, we do not agree with his finding that the pre- ponderance of the evidence establishes that before his discharge the Respondent discriminatorily withheld a wage increase from Bergen- feld and thereby also violated Section 8 (a) (3) and (1) of the Act. Accepting, as we do, the Trial Examiner's credibility findings, we are not persuaded that all the relevant evidence demonstrates that the Respondent's President Solin, in indicating to Bergenfeld that be would grant his request for an increase, made a firm commitment or promise to Bergenfeld which he declined to fulfill for antiunion considerations. Thus, the evidence shows that Bergenfeld had been twice denied the promised wage increase before Solin was even aware of Bergenfeld's activities on behalf of the Machinists and that after the second denial Bergenfeld pursued the matter no further. More- over, it is conceded that Bergenfeld had received a wage increase only about 1 month before he was promised the increase in question and that Solin anticipated at that time being required to grant a general increase when the United Mine Workers' contract, which was then due to expire on August 2, came up for renegotiation. In these circumstances, it is reasonable to assume that Solin never intended to fulfill his promise to Bergenfeld but merely used the promise as a means of putting him off as long as he could. Indeed, Bergenfeld himself testified that Solin was the type of a person who had to be "chased" a month to get an increase. Although we find that the Respondent did not in fact withhold a wage increase in violation of Section 8 (a) (3) and (1) of the Act,' we nevertheless find that the Respondent, by informing Bergenfeld on June 13 that it was denying him the promised wage increase (which it never intended to give him anyway) because of his Ma- chinists activities and by telling Bergenfeld on June 20 that it would give him the increase if he got rid of the Machinists' representation petition, violated Section 8 (a) (1). In our opinion, these state- ments, which were made by the Respondent's President Solin, amounted, respectively, to an unlawful threat to deny Bergenfeld benefits for engaging in protected activities and an unlawful offer of benefit to abandon the Machinists. 3. We concur in the Trial Examiner's finding that the Respondent deprived employee Singleton of his customary overtime after August 13, 1952, because, as an observer for the Machinists at a Board elec- 9 For this reason , we do not adopt the Trial Examiner's recommendation that Bergenfeld be reimbursed for the loss he allegedly suffered as a result of the Respondent 's failure to give him the increase in question. 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion, he challenged ballots which affected the results of the election, and that the Respondent thereby violated Section 8 (a) (3) and (1) of the Act. 4. The Respondent contends that the General Counsel failed to sus- tain his burden of proving the alleged unfair labor practices, dis- agreeing principally with the Trial Examiner's credibility findings. However, it has been the Board's settled practice not to disturb the Trial Examiner's credibility findings based on his personal observa- tion of the demeanor of witnesses unless the clear preponderance of all the relevant evidence demonstrates that the Trial Examiner's resolution was incorrect 10 We find that the preponderance of the evidence here does not warrant disturbing the Trial Examiner's credi- bility findings. Accordingly, we conclude that the General Counsel sustained his burden of proving the violations herein found.1' THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act 12 We shall adopt the Trial Examiner's recommended remedy with the modifications required by our reversal of some of the Trial Exam- iner's findings and our additional 8 (a) (1) findings. Specifically, we shall not order the Respondent to reimburse Bergenfeld for the alleged denial of a wage raise. We shall also direct the Respondent not only to cease and desist from engaging in the specific conduct found to be unlawful, but also to cease and desist from in any other planner interfering with, restraining, and coercing employees in the exercise of their statutory rights. The latter remedy, we find, is nec- essary as it is reasonably to be anticipated from the Respondent's past conduct that the Respondent may engage in other unfair labor prac- tices proscribed by the Act. Order - Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Sterling Cabinet 10 Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F. 2d 262 (C A 3) ; of N. L. R. B. v. Universal Camera Corp., 190 F. 2d 429 (C. A 2), on remand from Universal Camera Corp v. N. L. R B, 340 U. S 474 11 Insofar as we have reversed the Trial Examiner's findings and made other findings, we have done so, not on the basis of our disagreement with his credibility determinations, but on our disagreement with his inferences and legal conclusions 12 Unlike the Trial Examiner, we find that in view of the Respondent's other unfair labor practices, it will effectuate the policies of the Act to order the Respondent among other things, to cease interrogating employees concerning their union preferences STERLING CABINET CORP. 11 Corp., New York, New York, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Encouraging membership in United Construction Workers Local 133-A, affiliated with the United Mine Workers of America, or in any other labor organization of its employees, or discouraging membership in District 15, International Association of Machinists, or in any other labor organization of its employees, by discharging employees or depriving them of overtime or in any other manner discriminating against them in regard to their hire or tenure of em- ployment or any term or condition of employment, except to the extent permitted by Section 8 (a) (3) of the Act. (b) Interrogating employees concerning their union preferences in a manner constituting interference, restraint, or coercion in viola- tion of Section 8 (a) (1) ; threatening employees with a denial of overtime or wage raises because of their union activities; promising wage increases and overtime to employees if they withdraw support from District 15, International Association of Machinists and sup- port the United Construction Workers Local 133-A, affiliated with the United Mine Workers of America; and unlawfully assisting the United Mine Workers by permitting that organization to hold meet- ings of the Respondent's employees during working hours on the Respondent's premises and paying employees for the time spent at these meetings, by directing employees to attend such meetings and to cooperate with the United Mine Workers in presenting to the Board any petition requesting the withdrawal of a representation petition of a rival labor organization and paying employees for the time thus spent away from work; and by permitting the United Mine Workers during working hours and on the Respondent's premises to solicit signatures to a proposed collective-bargaining agreement at a time when another labor organization is the certified bargaining rep- resentative of the Respondent's employees. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist District 15, International Asso- ciation of Machinists, or any other labor organization, to bargain col- lectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective 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 condi- tion of employment, as authorized in Section 8 (a) (3) of the Act. 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer Jack Bergenfeld immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered as a result of his discriminatory discharge in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (b) Make whole William Singleton for any loss of pay he may have suffered as a result of the discriminatory withholding of over- time from him in the manner set forth in the section of the Inter- mediate Report entitled "The Remedy." (c) Upon request, make available to the Board or its agents, for examination and copying, all payroll records, social-security pay- ment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of back pay due under the terms of this order. (d) Post at its plant in New York City, New York, copies of the notice attached hereto marked Appendix.13 Copies of such notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by a representative of the Respondent, be posted by the Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in con- spicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by the Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Second Region, in writ- ing, within ten (10) days from the date of this Order, as to what steps it has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that the Respondent, in violation of Sec- tion 8 (a) (3) and (1) of the Act, discharged John Darman, with- held a promised wage increase from Jack Bergenfeld, and reinstated Jack Bergenfeld on condition that he abandon his membership in, and activities on behalf of, District 15, International Association of Machinists and assist United Construction Workers Local 133-A, affiliated with United Mine Workers of America, and insofar as the complaint alleges independent violations of Section 8 (a) (1) of the Act other than those specifically found herein. Is In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." STERLING CABINET CORP. Appendix 13 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 encourage membership in United Construction Workers Local 133-A, affiliated with the United Mine Workers of America, or in any other labor organization of our employees, or discourage membership in District 15, International Association of Machinists, or in any other labor organization of our em- ployees, by discharging any of our employees or depriving them of overtime or discriminating against them in any other manner in regard to their hire or tenure of employment, except to the extent permitted by Section 8 (a) (3) of the Act. WE WILL NOT interrogate our employees concerning their union preferences in a manner constituting interference, restraint, or coercion in violation of Section 8 (a) (1) ; threaten them with a denial of overtime or wage raises because of their union activities; promise them wage increases and overtime if they withdraw sup- port from District 15, International Association of Machinists and support United Construction Workers Local 133-A, affili- ated with the United Mine Workers of America; and we will not unlawfully assist the United Mine Workers by permitting that organization to hold meetings of our employees during working hours on our premises and pay our employees for the time spent at these meetings, by directing our employees to attend such meetings and to cooperate with the United Mine Workers in pre- senting to the Board any petition requesting the withdrawal of a representation petition of a rival labor organization and paying our employees for the time thus spent away from work, and by permitting the United Mine Workers during working hours and on our premises to solicit signatures to a proposed collective- bargaining agreement at a time when another labor organization is the certified bargaining representative of our employees. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organ- ization, to form labor organizations, to join or assist District 15, International Association of Machinists, or any other labor or- ganization, to bargain collectively through representatives of their own choosing, to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion, or to refrain from any or all such activities, except to the extent that such rights may be affected by an agreement requiring 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL offer Jack Bergenfeld immediate and full reinstate- ment to his former or a substantially equivalent position, with- out prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered as a result of his discriminatory discharges in the manner set forth in the section of the Intermediate Report entitled "The Remedy." WE WILL make whole William Singleton for any loss of pay he may have suffered as a result of the discriminatory withhold- ing of overtime in the manner set forth in the section of the Intermediate Report entitled "The Remedy." All our employees are free to become, remain, or refrain from be- coming or remaining members of District 15, International Associa- tion of Machinists, or any other labor organization, except to the extent that their right to refrain may be affected by a lawful agreement which requires membership in a labor organization as a condition of employment. STERLING CABINET CORP., Employer. Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report STATEMENT OF THE CASE Upon a charge and amended charges filed by District 15, International Associa- tion of Machinists, hereinafter called the Union, the General Counsel of the National Labor Relations Board, hereinafter called respectively the General Coun- sel and the Board , on January 23, 1953, by the Regional Director for the Second Region (New York City ), issued a complaint against Sterling Cabinet Corp., here- inafter called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and ( 3) and Section 2 (6) and (7) of the Labor Management Relations Act, 1947, 61 Stat. 136, hereinafter called the Act. Copies of the com- plaint, the charge and amended charges upon which the complaint .was based, to- gether with the notice of hearing thereon , were served upon the Respondent and the Union. With respect to unfair labor practices , the complaint alleges in material substance that the Respondent, beginning about June 13, 1952, engaged in certain acts of inter- ference, restraint, and coercion and discriminated against and discharged Jack Bergenfeld , and deprived William Singleton of overtime work, because of the mem- bership in of each of these employees and his activities on behalf of the Union, and/or because each failed or refused to become a member of or assist the United Mine Workers of America. The Respondent's answer denied all material allegations of the complaint. Pursuant to notice , a hearing was held at New York City on March 23, 1953, and continued from April 8 through April 20, 1953, before the undersigned as a duly designated Trial Examiner. The General Counsel and the Respondent were repre- sented by counsel, and the Union by an International representative . A motion by General Counsel to amend paragraph 5 of the complaint to include John Darman as a discriminatory dischargee on the same aforesaid basis was granted upon terms. STERLING CABINET CORP. 15 All the parties participated in the hearing and -were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence bearing upon the issues, to submit oral argument, and to file briefs. A motion made at the end of the entire case by General Counsel and not objected to by Respondent, to conform the pleading to the proof with regard to minor variances, was granted. The Respond- ent moved for dismissal of the complaint at the conclusion of presentation of evi- dence. After argument thereon, decision was reserved on such motion and it is disposed of in the findings and conclusions set out below. All parties waived oral argument on the evidence. The Respondent has filed a brief which has been read and considered. On the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I 1. THE BUSINESS OF THE RESPONDENT The Respondent is and at all times material herein has been a corporation incor- porated under the laws of the State of New York with office and principal place of business in New York City, where it is engaged in the manufacture of steel cabinets and related products. In the course and conduct of its business, during the calen- dar year 1952, the Respondent purchased materials having a value exceeding $100,000, of which approximately 10 percent represented the value of shipments received from sources outside the State of New York. During the same period, the Respondent sold products valued at an amount in excess of $100,000, approx- imately 75 percent of which represented the value of shipments to points outside the State of New York. The Respondent conceded at the hearing, verbally chang- ing the denials in the answer filed, and I find, that it is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED District 15, International Association of Machinists, is a labor organization ad- mitting to membership employees of the Respondent. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction United Construction Workers Local 133-A, affiliated with the United Mine Work- ers of America,2 had been the collective-bargaining representative of the employees herein under a written contract agreement with the Respondent expiring on August 2, 1952. On or about June 5, 1952, Jack Bergenfeld, the shop steward for such labor organization, secured the signatures of a number of employees of Respondent to cards designating District 15, International Association of Machinists, as collective- bargaining representative, and turned them over to a representative of such Union on June 9, 1952. A letter was sent to Respondent by the Machinists Union on June 10 claiming to represent a majority of their employees. A petition in a representa- tion proceeding was filed by said Machinists Union on June 12, 1952, and a letter telative to said filing sent by the Board was received by the Respondent on June 13, 1952. A telegram was sent to the Respondent on June 18, 1952, by the Union warning against alleged intimidating and interfering with employees or attempting to influence them in the choosing of a collective-bargaining representative. Also, on June 18 at 4:30 p. in. the Mine Workers, with the permission of the Respondent, held* a meeting of employees of Respondent on the plant premises, purportedly to discuss negotiations for a new contract and incidentally to discuss who had engi- neered the signing of cards for the Machinists Union. On June 19 a representative of the Mine Workers and the shop committee (including Bergenfeld) discussed grievances' with the officials of the Respondent. On Friday, June 20, Bergenfeld was discharged by Solin, president of Respondent. On June 23 the Mine Workers took all employees out on strike and to an all-day meeting at union headquarters, allegedly in retaliation for said discharge. All workers were returned to work the next day except Bergenfeld, restrained from returning by officials of the Mine Work- ers who had learned of his activities for the Machinists Union. Bergenfeld again 1In making the findings herein I have considered and weighed the entire evidence it will needlessly burden this report to set up all the evidence on disputed points. Such testi- mony or other evidence in conflict with the findings herein is not credited 2 Hereinafter called the Mine Workers. 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD returned to work for the Respondent on July 7, 1952, under an arrangement made between attorneys tor the Union and the Respondent, and Bergenfeld was again discharged by Solin later that same day. In an election held on August 4, 1952, the Machinists Union prevailed in a close vote and was formally certified as the collective- bargaining representative of employees of Respondent on October 16, 1952.3 In November 1952, during working hours, representatives of the Mine Workers were permitted by the Respondent to enter the premises of Respondent and secured a number of signatures of employees to a proposed contract between the Respondent and Mine Workers, which Respondent did not sign, after advising with its attorney. A second work shift, beginning at 4:30 p. in. which Respondent had inaugurated about May 1952, was discontinued at the end of October 1952. There is no history of prior antiunion animus by Respondent. B. Jack Bergenfeld 1. The discharge of June 20, 1952 After Respondent received a letter on June 13, 1952, from the Board, Bergenfeld alleges Solin came to his machine during the morning showing it to him and dis- cussing it, inquiring what it was abont.4 Bergenfeld told him the people asked him to get another union, and Solin said "he had no right to do that," calling him a "wise guy" and further telling him he would not give him the promised 10-cent wage increase. Solin denies any such conversation 5 or showing him the Board's letter or telling him he was not going to receive a raise, but also admits after getting such letter he did discuss the matter of salary with Bergenfeld. About 5 minutes later, Bergenfeld states, Solin called him over to the spot-welding department and exclaimed, "Look at the s- o- b- getting another union here," and that Solin further stated that he "wanted the United Mine Workers here," that he was satisfied with them, and could not sell his merchandise without them, as he could not afford to pay the higher wage scale of the Machinists Union. Bergen- feld allegedly replied, "No union is going to stop you" from selling merchandise, that "we have free enterprise here." The main details of this incident are sup- ported in the testimony of coworker Floyd Simmons, which I credit, and also that of employee William Singleton, equally accepted as to this event, although there are some discrepancies in the relating of the actual word content of the entire conversation. Later in the same day, a representative of the Mine Workers in- formed Bergenfeld that if they ascertained who was behind "this union business" they would arrange to get them fired.6 There is direct conflict in testimony of Bergenfeld and Solin as to whether they had any conversation following receipt by Solin of the telegram of June 18, 1952, from the Union, allegedly sent after a request made to the Union by Bergenfeld, following the workers' complaints to him between June 13 and 17 that Solin was threatening to cut out their overtime if they didn't get rid of the petition of the Union. Bergenfeld alleges that on June 18 following a Mine Workers meeting in the plant premises, while he was working overtime, Fraiman 7 also accused him of starting all this union trouble, and stating he did not have to give people overtime, and then sent Bergenfeld home. On June 19 Bergenfeld with McGarry, a Mine Workers representative, discussed grievances with Solin, who admits the meeting, and also that there was discussion of the water cooler situation .8 Bergenfeld testified that on June 20 while he was on his lunch hour he saw Solin at his office door and again asked him regarding the lights, cooler, etc. Solin al- legedly replied, "You bother me too much about the water cooler and the lights and the Union. You gave me too much trouble here. I am going to fire you today. As of 4:30, you are working until 4:30." 9 8 Subsequently, and on a date not made clear in the record, the Union and Respondent signed a collective-bargaining agreement, and the charge as to failure to bargain was with- drawn before the complaint issued + Transcript is in error in referring to Solin as "Mr. Sterling " e Solin says there was no different conversation than usual. He indicated always it was the "same song." Bergenfeld would say : "Sohn, what about the water cooler-the lights, an air conditioner for the shop-a raise for me ?" Testimony of Singleton confirms the visit of Mine Workers representatives at such time. An .officer of Respondent. 9 Fraiman recalls also that the question of lights was discussed. 9 Bergenfeld testified he answered, "If water cooler was taken care of there would be no need to bother you. People bother me, I come to you" ; and that under the National Labor STERLING CABINET CORP. 17 Solin contends he noticed Bergenfeld walking around during the morning of this same day and told him to go back to work, receiving the "usual song" about the lights, cooler, etc. Between 11 and 12 o'clock, he alleges, Bergenfeld entered his office without knocking, again asking about lights, cooler, etc. Solin insists he re- plied, "You don't let anybody work. You don't let me live in peace. I see you all day long doing nothing I'll fire you at 4:30." Until then "call your committee, your union. We have the clauses of arbitration." Allegedly Bergen- feld said, "H-, I won't call anybody." He did call Cevalo 10 and was told not to worry. At 4:30 he was paid off by Solin.ii The contention of the Respondent, as shown primarily in testimony of Solin and Fraiman, was that this disciplining of Bergenfeld arose from their annoyance with him, based on many events covering his entire period of employment, citing instances as the so-called annoyance of employee Ritter by Bergenfeld over a year previously (clearly I believe overemphasized in Fraiman's and Solin's testimony), some alleged insubordination in not performing work he was directed to do but which he did not think he was required to do, as lifting of objects, greasing of parts (but which appar- ently he did after request), and the manner of conducting his shop-steward duties to take advantage of unusual freedom from work duties and holding up work of others. I believe they perhaps had some small measure of justification for this last belief. I am also convinced that Bergenfeld was quite alive to the possibilities of securing favorable consideration for his own salary status and changes therein, and did so, with the encouragement and willing help of Solin, who gave him several so-called merit increases, some clearly to circumvent Wage Stabilization Board requirements. However grievous these events were in themselves, or appeared to be at the time of occurrence, the Respondent took no drastic action relative to them, except for some overtime curtailment allegedly in connection with the Ritter instance. On the whole, the reasons advanced by Respondent lack substantial reality under the circumstances, and I regard them as a mere pretext to cover the obvious and real reason of action. After noting the demeanor of each on the witness stand and during the course of the hearing, I accept and credit the testimony of Bergenfeld as to the events leading up to and at the time of discharge, and not that of Solin or Fraiman. As to whether the Respondent had any knowledge prior to such discharge of Bergenfeld's new union activities, I find that they clearly had. The foreman testified he heard about activity of Bergenfeld in bringing in the Machinists prior to his being fired. Solin stated he first learned of Bergenfeld in relation to new union action when he received the Board's letter of June 10, 1952, and he also found out from Fraiman that Bergen- feld had part in it. The testimony of Fraiman is also significant that although they had talked for weeks about firing Bergenfeld, and he had urged it right from the start of employment 2 years before, it was only decided upon on that day of discharge. On the record as a whole, I find that Jack Bergenfeld was discriminatorily dis- charged by Respondent on June 20, 1952, that such discharge was for engaging in union and other concerted activities and was in violation of Section 8 (a) (3), and also thereby discouraged membership in a labor organization and interfered with the rights of employees under Section 7 in violation of Section 8 (a) (1) of the Act. 2. The discharge of July 7, 1952 Bergenfeld returned to work for Respondent under an arrangement the attorney for the Union made with Respondent's attorney. Solin was not aware of this arrange- ment relative to his returning, nor was Fraiman. Bergenfeld reported at-8 a. in., but waited until arrival of Solin at 1:45 p. m. After the situation was explained to Solin Relations Act employees "have a right to have whomever we want to represent us " Solin reportedly answered, "The H- with the National Labor Relations Act " Although I am convinced that this is the type of remark that would not be out of character under the circumstances with the explosive, voluble, and temperamental Solin, I am not accepting or crediting it, or several alleged other declarations of similar tenor testified to by other witnesses herein as having been made by Solin on other occasions, as this and each other such claimed utterance lacks specific corroboration, and in view of the vehement denials of the same in each instance by Solin 10 In charge of United Mine Workers. 11 Bergenfeld alleges Sohn then said, "I won't fire you if you get rid of the petition. I will give you the 10 cents I promised." This Solin denies. Gonzalez, another worker being paid, testified that allegedly he did not hear such statements, but he does not remember what Solin did say, and also that he left the premises before Bergenfeld did. I do not give credit to the testimony of Gonzalez. 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by Bergenfeld , he directed Bergenfeld to go back to work . Bergenfeld donned work clothes about 2 p. m. Bergenfeld alleges that at about 2:15 p . in. he was told by Solin that he (Solin ) had just spoken to the Mine Workers, and that the -Mine Work- ers representatives were coming up to the plant and Bergenfeld should make his peace with them . Bergenfeld alleges that Solin told him that if he did not talk with the Mine Workers when they arrived, he would fire him. Bergenfeld testified he advised Solin he would not talk with them . He further claims that about 3:30 p. m. Solin told him he had been talking to people on the telephone, and that they had advised him to "fire me again unless I agreed to get the Machinists Union to withdraw their petition from the Board." He further alleges Solin then said, "I am firing you." He then asked Solin to repeat such words to a committeeman which Solin agreed to do and called over Singleton , the then shop steward for the Mine Workers. Single- ton testified that Solin said that he was "firing Jack Bergenfeld because he wouldn't make peace with the United Mine Workers Union." Singleton allegedly answered that under the Taft-Hartley Act "you have no right to fire Jack for that reason," and that he then told Solin, "He was the boss, so do what he wants to do." i2 Solin verifies the Bergenfeld testimony up to the point of telling him to go to work, with the added injunction allegedly being given for Bergenfeld to stay at his machine, "don't walk around and talk." He says Bergenfeld worked one -half hour, and later Bergenfeld came into Solin's office while Solin was on the telephone, picked up the telephone of Fraiman and called someone without permission . Solin states he said, "You pick up the telephone like you were boss here in my place. I am firing you again right now. You're fired now and then complain. I told him to get out." Bergenfeld went to his machine and "asked me to repeat what I said in front of some one else." Solin walked over to Singleton . 13 The testimony of Solin further denies anything was said in the presence of Singleton regarding the firing being based on Bergenfeld's refusal to get the Machinists Union petition withdrawn , or that any- thing was said regarding the Mine Workers at this time , and denies making, as al- leged , any reference to the Taft-Hartley Act and a hot place . Solin states he did not fire him for using the telephone , but only for breaking his word and promise to stay at his punch-press work. Bergenfeld denies going into the private office, making the alleged telephone call, or going around among the men and talking until 3:30 when fired, but admits that Solin did tell him at the start of work that if he caught him away from his place again , he would fire him. Singleton in his testimony states he noticed Bergenfeld at work from 2:30 to 3:30 p. in. and definitely states Solin gave as the reason for firing Bergenfeld a statement about Bergenfeld not making peace with the Mine Workers Union . Darman, a paint sprayer, related a conver- sation he had with Fraiman on the day of this second discharge of Bergenfeld, when in discussing it Fraiman allegedly said, "I know what I am doing. We got advice from the Union . They told us to fire him." This testimony is not controverted in the record and I accept and credit it . I credit also herein in the main the testimony of Bergenfeld and also that of Singleton , within the limitations previously herein indicated. I find that the discharge by Respondent of Bergenfeld on July 7, 1952, was discriminatory and based on his refusal to abandon membership and union activities in the Machinists Union and/or refusal to assist the United Mine Workers, and was in violation of Section 8 (a) (3), and also tended to discourage member- ship in a labor organization and thereby the Respondent was interfering with, re- straining, and coercing its employees in the exercise of rights guaranteed under Section 7 in violation of Section 8 (a) (1) of the Act. 3. Reinstating Bergenfeld on condition he abandon membership and activities in Union and join and assist United Mine Workers The facts relative to this allegation of the complaint areas set forth previously herein in discussing` the second discharge of Bergenfeld on July 7, 1952. It appears Solin put him back to work without even fully verifying the assertion stated by Bergenfeld regarding his resuming work under an arrangement made by Respond- ent's attorney . Bergenfeld did return to and actually performed work, and the en- suing conversation with Solin relative to making peace with the Mine Workers is an incident of the discharge I find , and not primarily related to reinstatement, which was an accomplished fact. This charge appears to be an instance of having your 12 Singleton's allegation that Solin said, "H- with the Taft-Hartley Act" is not credited as previously declared in another footnote . I do not regard this variance in the testimony of Singleton and Bergenfeld as sufficient to destroy the corroborative effect of the Single- ton testimony as to the general incident 13 The testimony of Solm indicates that all he said to Singleton was, "He is fired right of this moment and I want him to leave the premises." STERLING CABINET CORP. 19 cake and eating it too, and seems to be a technical application of the law in making the same incident the basis of two separate, conflicting, and differing allegations. I find the evidence does not sustain the complaint in this respect. 4. Withholding wage increase promised to Bergenfeld In the last week of May, Bergenfeld claims Sohn inquired of him regarding his work, and when he advised Sohn it was all right, Bergenfeld asked Solin for a pay increase of 10 cents per hour. He alleges he was told to see Solin "tomorrow," and that on the next day Solin told him he "will give it to me in this week's pay" (week ending June 5, 1952). He did not receive it in such pay, and when he asked again for it, he alleges he was told he would get it the next week (June 12). He did not receive it then either, and did not ask for it again. Bergenfeld further claims that in a conversation of June 13, 1952, Sohn informed him he would not get the raise. Solin denies such conversations although he admits he did discuss salary with him after receiving the letter from the Board on June 13. 1 credit the testimony of Bergenfeld. The incidence of time and dates and the delay in giving any increase as allegedly promised, together with the final refusal of June 13, closely parallel the activities of Bergenfeld and the developments regarding the Machinists Union. There would appear to be no other reason for Solin to have had a conversation with Bergenfeld regarding his salary after receiving the Board's letter, as Solin's testimony admitted, if there had not been prior discussions between them. I find that the promised wage increase was discriminatorily withheld from Bergen- feld because of his union membership and activities, which had become known to the Respondent, and was a discrimination in regard to his term or condition of em- ployment to discourage membership in a labor organization in violation of Section 8 (a) (3). C. The discharge of John Darman Darman worked as a spray painter from May 21, 1952, to October 17, 1952, on the shift beginning work at 4:30 p. in. Wilson, who had worked several years for Respondent, was the day-shift sprayer. On October 20, 1952, a friend called the plant of Respondent, speaking to the girl in the office, stating Darman was sick and would be out 1 or 2 days. He returned to work, without any other notification to employer on October 22. Wilson by direction and request of Respondent was then working overtime doing the spray-painting work on the second shift. When Darman started to work, Solin called him to the office allegedly stating to him, "You can't work. There is no work for you. . . . They told me you had a job." Anyway, Wilson was working and Solin said he could not take him off his job. "You have to go home. Well, anyway, come back tomorrow, I will see about it." When Dar- man came in the next night, Solin gave him essentially the same reply and Darman asked that Solin tell him if he wanted him to work or not. On the following night, Solin told him to go to work. Within 10 minutes Wilson complained, giving Solin and Fraiman an ultimatum that if Darman went back to work he would quit. After Solin and Fraiman conferred, it was decided to send Darman away until "we can see what can be done" or until "we get more work." Fraiman told Darman to go home. The second shift was discontinued about 1 week later, the other 3 men on it transferred to the day shift, and because of Wilson's stand on not working with Darman, no further arrangement for work by Darman was made. Wilson con- tinued to get overtime when available. Darman admits both Solin and Fraiman told him they would not take him back because Wilson said he would quit. Fraiman had told him he would have to let him go as they "could not tolerate . . . fight all the time." There clearly was a long history of friction between Darman and Wilson begin- ning the second week of employment of Darman. I do not find it necessary to determine the technical questions involved in the testimony relative to the cleaning of the spray guns and paint hose and how they were left at the end of the second shift, or who was responsible or at fault. Such matter, however, was the source of constant complaint An early physical encounter between Wilson and Darman indi- cates some jealousy perhaps on the part of the longer employed worker relative to giving instructions to a helper, and the antagonism between Wilson and Darman was evidently not aided any by the fact that Darman had shown Respondent some improved methods of spraying at lower cost. Although I credit testimony of Darman that he overheard Solin say on the night of his return to work that "anybody goes to Union meeting tonight, he won't be able to work here anymore," and that he went to the meeting and before resuming work 334811-55-vol 109-3 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD told Solin, "I just came back from union meeting," still no punitive action was taken against him then, or against worker Callahan who told Solin he was going to the same union meeting, and was told by Solin if "you go don't bother coming back." He re- sumed work without any questions the following night. Considering these and other minor incidents related in the testimony, and on the record as a whole, I find that the General Counsel has not sustained the burden of proof to show that the termination of work service of Darman was essentially because of his union mem- bership or activities. I find that the intolerable situation facing the Respondent rela- tive to the work relations of Darman and Wilson, together with the declining need for the use of two sprayers, sustained the action of the Respondent in failing to restore Darman to work and the reasons assigned for it. D. Depriving William Singleton of overtone Singleton was a spot welder employed largely in making boiler jackets and had been with this employer since 1945. He alleges that overtime work which was no longer given him regularly after the week ending August 13, 1952, was curtailed because of his actions as official observer for the Machinists Union in challenging certain votes in the representation election held on August 4, 1952. Ordinarily, overtime work in this Company was a very loosely conducted affair, only occasion- ally being done by direction or request of the Respondent, but being largely a matter of personal choice of the worker, being performed at his election when the work was available and for such time period each night as such worker wanted to give. Single- ton alleges Fraiman gave him the reason stated above by him when Singleton inquired regarding the cut in his overtime, after the foreman had informed Singleton he would get no more overtime as they did not need him. He also alleges Solin said in answer to an inquiry that Singleton made about 1 week after the election, that he "don't have to give you overtime No union can make him give me. I am cutting out your overtime because you challenged votes for the I. A. M , for the new union." These remarks were denied by Solin.14 Recently employed welders, at a lower rate of pay or doing cabinet work, continued to receive overtime work. The issue of the chal- lenged votes was important in view of the close election results and as it was the subject of appeal to the Board by Respondent until October 21, 1952 Overtime work was restored to Singleton about November 26, 1952, by Solin after interces- sion of a union representative with Respondent's attorney. It is clear that Solin in- formed Singleton at such time of restoration that he would give overtime to him if he would stick to his job and not do personal work. A variety of reasons were assigned by Solin in his shifting testimony as to why Singleton's overtime was stopped They related to incidents not considered im- portant enough to warrant any direct disciplinary action being taken for them at the time of occurrence, and indeed some may have occurred subsequent to the decision to stop the overtime. It seems that no useful purpose will be served by any detailed discussion of them, despite the large amount of testimony relative thereto, except to point out that the affair of the cutting of iron bars, clouded as to the actual date of occurrence, but being at least 1 year before curtailment of overtime, was of distinctly ancient vintage for any sudden action on it in August 1952, and the cutting of fibre in the convector room by Singleton, allegedly for a needed washer for his work table, was specifically eliminated by Solin as a factor in his overtime decision.15 Perhaps a bad situation did exist in the plant as alleged by Solin regarding organized or unorganized pilferage occurring for a long time previ- ously, which might or did create the suspicions under which he was suffering, and required in his opinion careful selection of those permitted to work at night. However, on the entire record, and after observing the demeanor of Singleton as a witness, and his carefulness while testifying in seeking to give a well thought out answer, I credit his testimony, and in view of the lack of conviction in the reasons advanced by the Respondent as the basis for action at that time, I find that Single- ton was discriminatorily deprived of customary overtime work in August 1952 be- cause of his activities on behalf of the Union in challenging votes at the election, and in such action the Respondent discriminated in the term or condition of employ- ment of William Singleton, in violation of Section 8 (a) (3), thereby discouraging 14 On the other hand, Scherder, a representative of the Machinists Union, testified that Singleton did state such reason to be the correct one in his presence and that of Solin in a conference in November 19552 ss The alleged radio repair work was also ancient and performed dining lunch recess period The testimony as to the auto repair work on his own car is decidedly in conflict as to time and date of peiformance I do not give weight to eithei as being the basis foi this action STERLING CABINET CORP. 21 membership in a labor organization, and interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed under Section 7 in violation of Section 8 (a) (1) of the Act. E. Alleged independent violations of Section 8 (a) (1) Some of these complaint allegations appear to overlap I find that the General Counsel has failed to sustain the burden of proof in the following allegations of the complaint: 1. Interrogating employees. The only clear-cut instance appears to be an isolated occurrence, namely in the testimony of Simmons that Fraiman on an unspecified date asked him which Union he favored. Although technically a violation, in the absence of others it does not appear sufficient upon which to base an order.is 2. Conditioning reinstatement of employee discharged for union activities upon his withdrawal of support and assistance to the Union in connection with petition for certification. This obviously can only refer to Bergenfeld. He alleges in his testimony that after his discharge of July 7, he was in front of the plant during a rest period at about 2:30 p. m. on July 14 talking with employees. Solin came out and called to him asking him to come into the office and talk. Although Bergenfeld claims he at first refused to do so, he did go after employees indicated he should do so. Among other things Solin is alleged to have asked him privately to get rid of the union petition and he would give him a raise to $1.75 per hour and restore him to work. Bergenfeld says he answeied that he refused to make deals. Solin does not recall any such invitation and conversation, but does recall seeing him on the side- walk and that he begged him not to stay near the door there He denied making any offer to him of $1.75 per hour and of return to work if he would get rid of the petition. There is no support in the record for the episode as related by Bergenfeld, in the presentation of testimony of any other workers allegedly present at the time and to whom Bergenfeld was supposed to be talking, and which it appears should have been available, secured, and presented to verify the actual happening of the claimed event Lacking such, I do not credit this portion of Bergenfeld's testimony. 3. Urging and inducing employees to withdraw support of petition filed for elec- tion, and threatening economic and other reprisals if they did not do so. The action of the employees after being taken out on strike on June 23 in sign- ing the document asking withdrawal of the union petition filed with the Board, appears to be entirely a movement initiated and carried through by the Mine Workers. Any slight contribution or impetus given to the procedure by Fraiman on the next day in sending Singleton and Gonzalez to the Mine Workers office and to the Board in connection with presenting the said petition was a passive action, even if cooperative and unaccompanied by threats. The action of the Respondent in paying the employees for time lost while attending the meeting of the Mine Workers in which the petition action was taken, or similarly to those two workers attending a Board conference the following day, is of little weight in this connec- tion. No advance representations were made by the Respondent to the workers regarding payment, and the employees had already acted in regard to the petition on their own volition, so that this payment of wages could hardly be construed as influencing them or made with intent to do so.17 The alleged general statements of Solin in the period June 13 to June 17 relative to cutting out of overtime unless petition was withdrawn I have considered under another topic herein. I do not find any substantial evidence to sustain this general allegation herein made. 4. Permitting representatives of United Mine Workers to hold a meeting on plant premises on June 18, 1952, during working time for the purpose of inducing em- ployees to vote against the Union at the election to be conducted and by paying employees for time lost. This meeting was held at about 4:30 p. m., the time when work shifts were changing. There is no testimony to show Respondent had any advance notice of it, was a party to the calling of the meeting, or knew the actual purpose of the meeting in regard to ferreting out information relative to the signing up of Machinists Union cards. Solin testified the union representatives asked for 15 minutes for a meeting, "Allegation of Singleton regarding Fraiman's statement that Fraiman "don't feel I am on his side" has been considered under inducements, thieats, and promises of Respondent herein. 14 Solin testified he acceded to request of Cevalo to be "a sport" and pay them, 2 days after the occurrence 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he granted the request, and enforced it by breaking up the meeting on his objections after such time had elapsed. As it was their "usual habit to come in and do as they wanted," he did not bother them. Only those were paid who were working over- time on the first shift or were workers who had punched in on the second shift. Although the petition had been filed for the Machinists Union, it should be noted also that the Mine Workers' contract was still in effect until August 2, 1952.18 In view of all the circumstances herein and the record presented, it seems far-fetched to hold that the action of Respondent had any effect of producing in the minds of its workers a belief that the Respondent was encouraging or inducing them to vote against the Machinists, or hoped thereby to affect their decisoin, either by permit- ting the holding of the meeting on the premises or the voluntary payment of wages to a portion of those workers attending, or further, as being any indication of Re- spondent's union preference, or any indication of future benefits to be received from Respondent. I find that the elements of interference, restraint, or coercion of the employees by the Respondent are lacking.is 5. Permitting representatives of United Mine Workers to take employees to union meeting on day of representation election for the purpose of inducing the employees to vote against the Machinists Union at said election, and by paying the employees for time lost while in attendance at such meeting. Gentile, a representative of the Mine Workers, testified he did not get permission to take employees from work on August 4, 1952, spoke to no one regarding it, and did not discuss the matter of employees getting paid. I do not credit the testimony of Alvarez, Singleton, or Simmons relative to this matter stating Fraiman was present when the Union took the men out. In the absence of any proof to the contrary, I credit the testimony of Fraiman to the extent that he was not in the factory on August 4, 1952, and was in Swan Lake, New York, on his vacation subsequent to August 1, 1952. I accept in this regard also the statement of Solin that he did not return to the plant on this day until after the men had gone, and also his declaration that he was not asked to pay the workers but did so on his own volition. The Respondent clearly did not permit in any way the taking of the employees to this meeting in order to interfere with the right of such employees to select freely their own bargain- ing representative. I find no interference, restraint, or coercion in this entire trans- action by the Respondent The voluntary payment of wages by the Respondent, after the event and the election, in no way communicated to the employees before the voting as even being likely to occur, can hardly be claimed to have been given to influence their position or action in the election of that day. In the following, I find the General Counsel has within reasonable limitations sus- tained the burden of proof: Five allegations of complaint (6 (b), (c), (d), (e), (h) ) are all so closely related and overlap that for considerations of brevity I am consoli- dating them for consideration. They relate to warning given to the employees rela- tive to the Union, making threats of discharge and economic or other reprisal to in- duce them not to become or remain members of or to assist the Union, and similarly as to the Mine Workers, making promises of or granting wage increases regarding a proposed action, relative to either the Union or Mine Workers, and urging or induc- ing employees to become or remain members of or to assist the Mine Workers. Previously, in considering the question of Darman's discharge, his testimony was credited relative to warnings given by Solin regarding attendance by workers at the Machinists meeting on October 22. I also credit the testimony of Singleton regarding the statement made to him by Fraiman that Fraiman did "not feel I am on his side" and that Fraiman "knew all fellows on our side," which was also linked in to a proposed wage increase and continued enjoyment of overtime work. I have no doubt also that statements to employees were made by Solin in the period of June 14 to June 17, 1952, relative to cutting out overtime if the pending petition of the Machinists was not withdrawn or if a new union came in, and that the occurrence of these statements occasioned the union telegram of June 18, 1952. Credit is also given to the testimony of Bergenfeld relative to Fraiman's declaring to him after the peti- tion was filed that he did not have to give time and one-half overtime and that he could increase the night shift. Likewise, I accept and credit the testimony of Darman as to the statement made to him by Solin following the November efforts of the Mine Workers to get signatures of the employees to the proposed contract and Darman's refusal to sign it, to the effect that, "I am not so hot-don't cooperate." Also noted >s fn connection with this and other meetings and events described herein no allegations under 8 (a) (2) were made lU Although I credit testimony of Darman that Fraiman told him to attend the meeting, although Darman was not then a member of Mine Workers, no compulsion was present in what appears was a mere request or invitation , without any implied conditions attached. STERLING CABINET CORP. 23 was the statement of Solin in June, credited in the testimony of various others herein, relative to the alleged higher wages of Machinists and the inability of Respondent to do business unless under agreement with the Mine Workers 20 I find that the pattern of all these incidents shows these actions of the Respondent to be acts of interference, restraint, and coercion of the employees by Respondent sufficient to uphold these allegations of the complaint, each being a violation of the rights guaranteed to the employees in Section 7 of the Act, and thus constituting violations of Section 8 (a) (1). Another allegation (6-K) of the complaint is that after the Machinists Union was certified on October 16, 1952, as bargaining representative, the Respondent, in November 1952, permitted representatives of the Mine Workers to enter the plant and solicit signatures of employees during working hours to a proposed contract between the Mine Workers and the Respondent, dated back to August 2, 1952. Whether they came in with previous permission may be debatable, but that the Respondent knew what was going on and suffered and permitted it to be done and carried on cannot be doubted 21 The testimony of Fraiman is convincing on this aspect, and there is also sufficient testimony of other workers to show Fraiman was in the vicinity and at least observing, if not participating, in the procedure through- out. Fraiman says he knew it was a contract and Solin must have told him.22 I find that the Respondent in permitting such procedure did, even in the absence of any rules regarding solicitation, show favoritism for this particular union, par- ticularly in light of the fact that no contract had been entered into as yet with the duly certified union, and that the practical effect of the procedure of the Respondent could and was calculated to weaken or destroy the loyalty or adherence of these employees to such Machinists Union, to the extent that such union might no longer represent the majority of employees, and therefore the Respondent did interfere with, restrain, and coerce the employees in the exercise of rights guaranteed under Section 7 and thereby violated Section 8 (a) (1). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It has been found that the Respondent, by threats and warnings relative to union membership and concerted activities, and by permitting invasion of its factory and annoyance to its employees by a noncertified union, did interfere with, restrain, and coerce its employees in violation of Section 8 (a) (1) of the Act. I shall therefore recommend that the Respondent cease and desist therefrom. Having found that the Respondent discriminatorily discharged Jack Bergenfeld on June 20, 1952, and again on July 7, 1952, I shall therefore recommend that the Respondent offer full and immediate reinstatement to Jack Bergenfeld to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges. Having also found that the Respondent discriminatorily withheld from Jack Bergenfeld a promised 10 cents per hour wage increase, I shall recom- mend that Respondent make Jack Bergenfeld whole for any loss of pay he may have suffered by reason of Respondent's discrimination, in discharge and also in wage increase withheld, by payment to him of a sum of money equal to that he normally would have earned at such increased wage rate as wages during the period since the week ending June 12, 1952, to the date of an offer of reinstatement, less his net earnings during such period. Said loss of pay shall be computed on the basis of each separate calendar quarter, or portion thereof, during the period from 20 Darman testified to alleged statements of Fraiman made 3 or 4 days before the repre- sentation election, regarding the trouble they were having with Bergenfeld trying to bring in another union, and his satisfaction with the one they had I credit such testimony of Dai man 21 Dai man testified when Gentile came over asking him to sign, stating a raise and bonus was to be given under the proposed contract, Fraiman was standing about 4 or 5 feet away and that he had seen Frainian talking to Gentile before Gentile came over to him 22 Despite the forcibly expressed fears of Solin regarding thefts in the plant and his suspicious thereto, it is noted that he did not consider even at this late date the presence of these union officials as that of "outsiders " 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's discriminatory action to the date of the offer of reinstatement. The quarterly periods , herein called "quarters," shall begin with the first day of January, April, July, and October. Loss of pay shall be determined by deducting from a sum equal to that which the employee would normally have earned for each such quarter or portion thereof , his net earnings, if any, in other employment during that period. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other quarter. It will also be recommended that the Respondent make available to the Board, upon request, payroll and. other records to facilitate checking the back pay due. Having found also that the Respondent discriminatorily deprived William Singleton of customary overtime in the period August 6, 1952 , to November 26, 1952, I shall therefore recommend that the Respondent make William Singleton whole for any loss of pay he may have suffered in such period through loss of overtime work, by payment to him of a sum of money equal to that he normally would have earned through overtime work in such period, based upon the average overtime weekly hours of work of similar workers in such work period. It will also be recommended that the Respondent make available to the Board , upon request, payroll and other records to facilitate -checking the amount of overtime pay due. Upon the basis of the foregoing findings of facts and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. District 15, International Association of Machinists, is a labor organization within the meaning of Section 2 (5) of the Act. 2. The Respondent is an employer engaged in commerce within the meaning of Section 2 (2), (6), and (7) of the Act. 3. The Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. 5. The Respondent did not violate Section 8 (a) (3) of the Act in the discharge of John Darman on October 24, 1952, or in the alleged conditioned reinstatement of Jack Bergenfeld on July 7, 1952. 6. The Respondent did not violate Section 8 (a) (1) of the Act in the actions enumerated and set forth in paragraph 6 (a), (f), (g ), (h), and (i) of the com- plaint. [Recommendations omitted from publication.] SEAMPRUFE , INC. (HOLDENVILLE PLANT ) and INTERNATIONAL LADIES' GARMENT WORKERS UNION, AFL. Case No. 16-CA-677. July 7, 195.E Decision and Order On March 26, 1954, Trial Examiner Henry S. Salim 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 Intermediate Report attached hereto. Thereafter, the General Coun- sel and the Respondent filed exceptions to the Intermediate Report and the Respondent submitted a supporting brief.- The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds no prejudicial error was committed. The 'The. Respondent's request for oral argument is hereby denied because the record and the exceptions and brief , in our opinion , adequately present the issues and the positions of the parties. 109 NLRB No. 2.