Henry Moss & Co.

In the Matter of B. F. Moss, GEORGE Moss, AItTIuUR SZERLIP AND L. H. SZERLIP, CO-PARTNERS, DOING BUSINESS UNDER TILE TRADE NAME AND STYLE OF HENRY MOSS & COMPANY and INTERNATIONAL METAL ENGRAVERS UNION In the Matter of B. F. Moss, GEORGE Moss, ARTHUR SZERLIP AND L. H. SZERLIP, CO-PARTNERS, DOING BUSINESS UNDER TIIE TRADE NAME AND STYLE OF HENRY MOSS & COMPANY and INTERNATIONAL METAL ENGRAVERS UNION Cases Nos. 2-C-5034 and 9'-R-4664 , respectively.-Decided January 4, 19416 DECISION AND ORDER Pursuant to a Decision and Direction of Election of the'National Labor Relations Board,' herein called the Board, an election was con- ducted on June 7, 1944, among employees of Henry Moss & Company, herein called the respondent, at its 53rd and 58th Street plants in Brooklyn, New York, to determine whether or not-they desired to be represented by International Metal Engravers Union, herein called the Union, for the purposes of collective bargaining. The Union lost the election. On June 12, 1944, the Union filed objections to the conduct of the election, alleging that the respondent had engaged in improper conduct which had affected the results of the election, and requesting that it be set aside. Thereafter, the Regional Director issued a Report on Objections, in which he found that the objections raised substantial and material issues, and recommended that a hearing be held on such objections. On June 27, 1943, the Union filed a charge, and thereafter amended charges, which, with amendments thereto, were waived by the Union in connection with the above-mentioned representation proceeding. On July 7, 1944, the Board issued an order consolidating the above proceedings and directing that a hearing be held on the objections to the election and on the alleged unfair labor practices. The Board issued its complaint dated November 17, 1944. A hearing was held 1 56 N. L. R. B. 597. - 65 N. L. R. B., No. 28 118 HENRY MOSS & COMPANY 119 before a Trial Examiner on February 27 and 28, 1945, and March 5, 6 and 7, 1945, at New York City, in which the Board, the respondent, and the Union participated by their representatives. The Board has reviewed the Trial Examiner's rulings on motions and on objections to the admission of evidence, and finds that no prejudicial error was committed. The rulings are hereby affirmed. On March 28, 1945, the Trial Examiner issued his Intermediate Report, a copy of which is attached hereto, in which he found that the respondent had engaged in, and was engaging in, certain unfair labor practices, and recommended that it cease and desist therefrom and take certain affirmative action. Thereafter, the respondent filed exceptions to the Intermediate Report and a supporting brief. On November 1, 1945, the Board heard oral argument in Washington, D. C.; the respondent and the Union participated therein. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record, and hereby adopts the findings, con- clusions, and recommendations of the Trial Examiner, with the addi- tions and exceptions noted below: 1. We find, as did the Trial Examiner, that the discharge of Howard Schleenbecker on March 27, 1944, was violative of Section 8 (3) of the Act. In concluding that his discharge was motivated by anti-union considerations, we rely on all the findings of the Trial Examiner and especially on the following circumstances, fully stated in the Inter- mediate Report : the respondent's antipathy toward the Union; the con- tradictory and implausible reasons assigned by the, respondent for Schleenbecker's separation; his prominence in the Union as an active member and as chairman of the organizing committee; Moss' inter- rogation of Schleenbecker as to what he intended to do about the Union and Schleenbecker's reply that he intended to stay in as the whole shop was signed up; and Moss' hostile remarks to Schleenbecker in March 1944, when Schleenbecker defended the reputation of former em- ployee Webber, who had served as chairman of the Union's organ- izing committee until his discharge in December 1943. 2. The Trial Examiner has found, and we agree, that on May 29, 1944, Fred Harden was temporarily laid off in a non-discriminatory manner, for lack of work, but that on June 5, 1944, he was unlawfully discharged because the respondent had meanwhile learned of his ap- pointment to serve as an observer for the Union at the Board election of June 7, and desired to prevent him from participating therein. It is not denied that shortly before his lay-off Harden was selected by the Union to serve as its observer, but the respondent contends that there is no support for the Trial Examiner's inference that by June 5 the respondent had knowledge of that fact. In our opinion, however. the record as a whole affords a reasonable basis for believing, and we 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD find, like the Trial Examiner, that at the time in question the respond- ent was apprised of Harden's designation as union observer and that his discharge was part of a studied plan and purpose to frustrate'em- ployee self-organization and to defeat the Union at the polls. As here- inafter considered, and as more fully detailed in the Intermediate Report, the respondent, shortly after Harden's lay-off, embarked upon a concentrated and effective pre-election campaign against the Union. The record also shows that at about the time of Harden's discharge, certain union members were giving the respondent information with respect to matters transpiring at union meetings. Moreover, in his pre-election, anti-union speech of June 7, Szerlip singled out for dis- paraging comment the two persons, Harden and Perito, who were to act as union observers, thereby indicating a foreknowledge of their official status. 3. The respondent contends that, because of the absence of avail- able work for Harden since his lay-off,2 there has been no actual dis- crimination against Harden, and hence no violation of Section 8 (3). We do not agree. In discharging Harden on June 5, the respondent sought to change his status from that of a temporarily laid-off em- ployee to that of a non-employee, to make him ineligible to participate in the election of June 7, and to deprive him of whatever rights he may have had as a laid-off employee. We are of the opinion, and we find, that by such conduct the respondent discriminated against Har- den, within the meaning of Section 8 (3) of the Act.3 4. We agree with the Trial Examiner's conclusions that the re- spondent's pre-election activity and conduct at the polls, as fully de- scribed in the Intermediate Report, precluded the election of Jude 7, 1944, from fairly reflecting the untrammeled will of the employees and that the respondent thereby engaged in unfair labor practices, within the meaning of Section 8 (1) of the Act. We have considered the respondent's contention that the statements and publications used in connection with its anti-union campaign are protected by the free speech guaranty of the First Amendment. However, we are of the opinion and find that these statements and publications were integral parts of the respondent's course of conduct, including the discrimina- tory discharge of Fred Harden, which in its totality interfered with, restrained, and coerced the respondent's employees in the exercise of the rights guaranteed by the At. We find that the election was not an expression of the free will of an uncoerced majority and therefore should be set aside, and we shall so order. We shall not, however, direct a further election until such 2 The record shows that several other engraving department employees were laid off at about the same time as Harden and that none had been recalled by the time of the hearing; nor does it appear that any new employees had since been hired. 8 See Matter of J. & H. Clasgen8 Company, 56 N. L. R. B. 898. HENRY MOSS & COMPANY 121 time as the Regional Director advises us that the effects of the unfair labor practices have been dissipated. THE REMEDY Having found that the respondent has independently violated Sec- tions 8 (1) and (3) of the Act, we must order the respondent, pursuant to the mandate of Section 10 (c) to cease and desist therefrom. We also predicate our cease and desist order upon the following findings : the respondent has evinced unwavering hostility toward the Union from the time the Union began to organize the respondent's employees. By questioning employees about their union affiliations, by request- ing employees-to refrain from participation in union affairs, and by other acts and utterances more fully detailed in the Intermediate Report, the respondent interfered with, restrained, and coerced its employees in the exercise of the right to self-organization, to form or join, or assist labor organizations, and to bargain collectively through representatives of their own choosing. These illegal activities, par- ticularly the discriminatory discharges of Schleenbecker and Harden, conduct which "goes to the very heart of the Act," 4 disclose a purpose to defeat self-organization and its objects among the respondent's employees. Because of the respondent's unlawful conduct and their underlying purpose, we are convinced that the unfair labor practices found are persuasively related to the other unfair labor practices proscribed and that danger of their commission in the future is to be anticipaated from the respondent's conduct in the past.5 The preventive purpose of the Act will be thwarted unless our order is coextensive with the threat. In order, therefore, to make effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor practices, and thereby minimize industrial strife which burdens and obstructs commerce, and thus effectuate the policies of the Act, we shall order the respondent to cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act. The Trial Examiner also recommended, inter alia, that the respond- ent be required to offer immediate reinstatement to Harden with back pay from June 5, 1945. However, since it appears that discrimination against Harden involved his status and rights as a laid-off employee and did not actually deprive him of any job which he would have otherwise had at that time, we do not adopt the Trial Examiner's pro- posed remedy as to Harden. Instead, we shall order the respondent IN. L. R. B. v. Entwistle Manufacturing Company, 120 F. (2d) 532, 536 (C. C. A. 4) ; N. L. R. B. v. Automotive Maintenance Machinery Company, 116 F. (2d) 350, 353 (C. C. A. 7). 1 See N. L. R. B. v. Empress Publishing Company, 312 U. S. 426. 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to restore to Harden his status as a temporarily laid-off employee with all rights and privileges incident thereto and to place Harden's name on a preferential hiring list, and thereafter offer him reinstatement to his former or a substantially equivalent position as such work be- comes available, without discrimination against him because of his concerted activity or union membership, and before new persons are hired,for such work. , If, since the hearing before the Trial Examiner, the respondent has hired any new employee, or has reinstated any with less seniority than Harden, to fill a job to which Harden would nor- mally be entitled, said new employee or reinstated employee, as the case may be, shall, if necessary to provide employment for Harden, be dismissed. In such event the respondent shall also make Harden whole for any loss of pay he may have suffered by reason of the respondent's discrimination against him by payment to him of a sum of money equal to that which he normally would have earned as wages from the date on which such other employee was hired or reinstated to fill the job formerly held by Harden or any substantially equivalent job to which Harden would normally have been entitled, to the date of the offer of reinstatement, less his net earnings during such period." As recommended by the Trial Examiner, we shall also order the respondent to take other affirmative action designed to effectuate the policies of the Act. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent co-partnership, B. F. Moss, George Moss, Arthur Szerlip and L. H. Szerlip, doing business as Henry Moss and Company, Brooklyn, New York, and their agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in International Metal Engravers Union, or in any other labor organization of their employees, by refus- ing to reinstate any of their employees, or by discriminating in any other manner in regard to their hire or tenure of employment, or any term or condition of their employment; (b) In any other manner interfering with, restraining, or coercing their employees in the exercise of the right to self-organization, to form labor organizations, to join or assist International Metal En- gravers Union or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities, for the purposes of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 6 See Matter of McKaig-Hatch, Inc., 10 N. L R. B. 33, 52, 53, Matter of Marlin-Rockwell Corporation, 39 N. L R B 501, 527. HENRY MOSS & COMPANY 123 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act. (a) Offer to Howard Schleenbecker immediate and full reinstate- ment to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges; (b) Make whole Howard Schleenbecker for any loss of pay he may have suffered by reason of the respondent's discrimination against him by payment to him of a sum of money equal to the amount which he normally would have earned as wages from the date of his dis- criminatory discharge to the date of the respondent's offer of rein- statement, less his net earning during said period; (c) Restore to Fred Harden his status as a temporarily laid-off em- ployee with all the rights and privileges incident thereto, and place his name upon a preferential list and thereafter offer him employment as it becomes available, in the manner set forth in that section of the Decision entitled "The remedy," offer Fred Harden immediate rein- statement in the event any person has been employed since the hear- ing herein to fill the job formerly held by him, or a job substantially equivalent thereto, in the manner set forth in the Decision herein, and make him whole for any loss of pay he may have suffered by reason of the respondent's discrimination against him, by payment to him of a sum of money equal to the amount of money he would normally have earned from the date he should have been reinstated, in the manner set forth in the Decision herein, to the date of the respond- ent's offer of reinstatement less his net earnings during said period; (d) Post at its plants in Brooklyn, New York, copies of the notice attached hereto marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by the respondent's representative, be posted by the respondents immediately upon receipt thereof, and maintained by them for a period of sixty (60) consecutive days thereafter, in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respond- ents 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 writing, within ten (10) days from the date of this Order, what steps the re- spondents have taken to comply herewith. AND IT IS FURTHER ORDERED that the election held on June 7, 1944, among the employees of B. F. Moss, George Moss, Arthur Szerlip, and L. H. Szerlip, doing business as Henry Moss and Company, Brooklyn, New York, be, and it hereby is, set aside. MR. GERARD D. REILLY took no part in the consideration of the above Decision and Order. 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, 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 International Metal Engravers Union 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. We will offer to Howard Schleenbecker immediate and full rein- statement to his former or substantially equivalent position with- out prejudice to any seniority or other rights and privileges pre- viously enjoyed and make him whole for any loss of pay suffered as a result of the discrimination. We will restore to Fred Harden his status as a temporarily laid- off employee with all the rights and privileges incident thereto and place his name on a preferential list and thereafter offer him employment as it becomes available; and if any person has been employed to fill the job formerly held by him, or a job substan- tially equivalent thereto, we will offer to Fred Harden immediate and full reinstatement to his former or substantially equivalent position without prejudice to any seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay suffered as a result of the discrimination. 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 employee because of member- ship in or activity on behalf of any such labor organization. B. F. Moss, GEORGE MOSS, ARTHUR SZERLIP and L. H. SZERLIP, co-partners doing business under the trade name and style Of HENRY MOSS & COMPANY (Employer). Dated-------------------- By---------------- -------------- (Representative) (Title) NoTE.-Any of the above-named employees presently serving in the armed forces of the United States will be offered full reinstatement upon application in accordance with the Selective Service Act after discharge from the armed forces. This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. HENRY MOSS & COMPANY INTERMEDIATE REPORT Mr. Cyril W. O'Gorman, for the Board. Mr. Frank Barasch, of New York City, for the respondents. Mr. Conrad Woelfel, of New York City, for the Union. STATEMENT OF THE CASE 125 On March 24, 1944, the International Metal Engravers Union,' herein called the Union, filed with the Regional Director for the Second Region (New York City) of the National Labor Relations Board, herein called the Board, a petition alleg- ing that a question affecting commerce had arisen concerning the representation of employees of B. F. Moss, George Moss, Arthur Szerlip, and L. H. Szerlip, co-partners, doing business under the trade name and style of Henry Moss & Company,' herein called the respondents at their two plants in Brooklyn, New York, and requesting an investigation and certification of representatives pur- suant to Section 9 (c) of the National Labor Relations Act, e19 Stat. 449, herein called the Act. Pursuant to notice of hearing, duly served on the parties, a hearing was held on April 13 and 14, 1944, in New York City. Thereafter on May 17, 1944, the Board issued its Decision and Direction of Election' providing for an election by secret ballot among "all production and maintenance em- ployees at the [respondents'] 53rd and 58th Street plants ... in Brooklyn, New York, including employees in the shipping and receiving department, but excluding clerical employees and all supervisory employees with authority to hire, promote, discharge, discipline or otherwise effect changes in the status of employees or effectively recommend such action." This election was held on June 7, 1944. At its close, observers for the respondents, the Union, and the Board signed a Tally of Ballots certifying that of approximately 114 eligible voters, 26 had voted for and 50 against the Union, while 38 ballots had been challenged. On June 12, 1944, the Union filed objections to the conduct of the election, contending that the election "was improperly interfered with and does not and cannot be a true reflection of employees' wishes in the matter." On June 28, 1944, the Regional Director issued a Report on Objections finding that "the objections raise substantial material issues with respect to the conduct of the election" and recommending that the Board direct a hearing on the objec- tions. Thereafter, on July 8, 1944, the respondents belatedly filed with the Board their answer to objections and conduct affecting election in which they defended their own acts prior to and during the election, attacked the organiza- tional activities of the Union and the procedure of the Board's representatives, and asked "that the objections raised be dismissed." On July 27, 1943, the Union filed a charge with the Board. This charge and amendments thereto were waived by the Union on March 30, 1944. On June 12, 1945, the same day the Union filed its objections to the conduct of the election, it also filed a third amended charge. On July 7, 1944, the Board issued its order directing that a hearing be held on the objections to the conduct of the election, and on the charge and amended charges, and that the representation proceeding be consolidated with the unfair labor practice proceeding in con- ' When the petition was filed the Union was affiliated with the American Federation of Labor and its name included the designation AFL On being advised by the Union that this affiliation was discontinued, the Board altered all formal papers dropping AFL s The caption above in the representation proceeding failed to name the individual partners It is hereby amended to conform to that of the complaint proceeding. 356 N.L R.B 597 126 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD formity with Article IT, Section 36 (b) and Article III, Section 13 (c) (2) of its Rules and Regulations, Series 3. Upon a fourth amended charge duly filed by the Union on November 16, 1944, the Board, through its Regional Director for the Second Region,' issued its com- plaint dated November 17, 1944, against the respondents, alleging that the re- spondents had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act. A copy of the complaint, accompanied by notice of hearing of the consolidated cases, was duly served on the respondents and the Union. With respect to the unfair labor practices the complaint alleged, in substance, that (1) the respondents, on or about March 27, 1944, discharged Howard Schleenbecker and on or about May 29, 1944, discharged or laid off Fred Harden and have since failed or refused to reinstate them, although Harden applied' for reinstatement on or about June 1, 1944, because Scbleenbecker and Harden' joined or assisted the Union or engaged in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and (2) "The Respondent, from on or about June 1, 1493 to date, has vilified, disparaged, and expressed disapproval of the Union; has interrogated its employees con- cerning their union affiliations ; has urged, persuaded, and warned its employees to refrain from assisting, becoming members of, or remaining members of the Union ; has threatened its employees with discharge or other reprisals if they joined or assisted the Union ; and has kept under observation and surveillance the meeting places, meetings, and activities of the Union or the concerted activi- ties of its employees for the purpose of self-organization or improvement of working conditions." On or about November 27, 1944, the respondents filed their answer which denied all the allegations contained in the complaint. The original notice of hearing set December 12, 1944, as the hearing date. Four successive postponements, at the instance of the Board, advanced the hearing date to February 27, 1945, on which day, on February 28, and on March 5, 6, and 7, 1945, a hearing was conducted by the undersigned Trial Examiner, Charles E. Persons, duly designated by the Chief Trial Examiner to serve in place and stead of Trial Examiner Sidney L. Feller, previously appointed by the Acting Chief Trial Examiner. The Board and the respondents were repre- sented by counsel and the Union by one of its officials. All parties participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence was afforded all parties Prior to the hearing, on November 27, 1944, the respondents filed a motion for a bill of particulars, extending to 48 items. On January 10, 1945, Trial Examiner Feiler issued an order granting the motion as to specified items and denying it in all other respects. When the hearing opened the Board's counsel stated, on the record, that due to his being occupied in the trial of another case he had not fulfilled Trial Examiner Feiler's order. Instead, he suggested to respondents' counsel "that at the close of Board's case, if he found it necessary then, after he heard the full extent of the Board's case, to request an opportunity to pre- pare because of surprise or some other reason" he might ask for a continuance. Respondents' counsel agreed that he had reached such an understanding with the Board's counsel. At the close of the Board's presentation in chief, on February 28, 1945, the respondents moved for a continuance until March 5. This motion was granted. When the hearing reconvened on March 5, 1945, the re- spondents moved to dismiss the objections to the election and the complaint for failure of proof These motions were denied. During the respondents' pres- entation, the Board moved to exclude all witnesses, other than the witness HENRY MOSS & COMPANY 127 under examination, from the hearing room. This motion was denied. At the close of the hearing the Board moved to conform the pleadings to the proof as to typographical mistakes and similar minor errors. This motion was granted without objection. The respondents renewed their motions to dismiss the com- plaint and the objections to the conduct of the election. These motions were taken under advisement and are now denied after consideration of the record. At the conclusion of the hearing, counsel for the respondents and the Board engaged in oral argument before the undersigned. The parties were duly not!, fled that they had the privilege of submitting briefs for the consideration of the Trial Examiner. The respondents submitted a brief.' Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENTS' The respondents doing business under the trade name and style of Henry Moss & Company are a co-partnership, first organized in 1942, composed of When the record in this proceeding was first received from the official reporter, the undersigned noted that certain exhibits were missing. The respondents had offered as their exhibit No. 3 the complete time card record of Schleenbecker beginning with the week ending April 16, 1942, and ending with the week ending March 16, 1944. The record as received included none of the weekly cards for the year 1942 Attached to the time cards for 1943 and 1944 were six notes which were stated on the record to be part of respondents' exhibit No 3. None of these notes were received. Board's exhibit No. 6-A was also missing The records of the official reporter establish that these missing exhibits have been withdrawn by the respondents in accordance with a ruling made by the under- signed that these original records might be withdrawn and photostatic copies substituted. Repeated efforts by the undersigned to recover the missing exhibits were only partially successful Board's exhibit No 6-A and four of the missing notes attached to time cards have been received. Respondents state that the 1942 time cards of Schleenbecker have been lost. This constitutes the most serious omission. This record, however, is quite remote from the date of Schleenbecker's discharge on March 27, 1944. After con- sideration of these matters , the undersigned finds that the missing exhibits are not of sufficient importance to justify further delay in the issuance of this Intermediate Report. It is ordered that the missing exhibits be regarded as withdrawn by the respondents and that the record be regarded as complete without them. It is further ordered that all the correspondence relative to this matter , with the Board's attorney, the respondents, and their attorney, the official reporter, and the undersigned as listed below be incorporated and made a part of the record in this proceeding as Trial Examiner 's Exhibit No. 1 a to q, inclusive . This correspondence or carbon copies thereof includes : (a) telegram dated April 5, 1945, by the undersigned to Cyril W. O'Gorman, Board's attorney , (b) telegram dated April 5, 1945, by the undersigned to Frank Barasch, respondents ' attorney ; ( c) letter dated April 7 , 1945, by Frank Barasch to the under- signed , (d) letter dated April 7, 1945, by L H Szerlip, a respondent, to the undersigned ; (e) letter dated April 9, 1945, by the undersigned to Elvira Johnson, New York City repre- sentative of the official reporter, Ethel E Fisher and Associates ; (f) letter dated April 13, 1945, by Elvira Johnson to the undersigned ; (g) letter dated April 16, 1945, by Elvira Johnson to the undersigned; (h) letter dated April 18, 1945, by the undersigned to Frank Barasch ; (i) letter dated April 18, 1945, by the undersigned to Elvira Johnson ; (j) letter dated April 18, 1945, by the undersigned to Cyril W. O'Gorman; (k) letter dated April 19, 1945, by L. H. Szerlip to the undersigned ; (1) telegram dated April 20, 1945, by the undersigned to Cyril W. O'Gorman; (m) letter dated April 23, 1945, by Cyril W. O'Gorman to the undersigned; (n) letter dated April 24, 1945, by Ethel E. Fisher to the undersigned; (o) letter dated April 30, 1945, by Elvira Johnson to the 'undersigned; (p) letter dated May 1, 1945, by the undersigned to Elvira Johnson; and (q) letter dated May 1, 1945, by Frank Barasch to the undersigned i These findings are based on stipulations between the parties, on allegations in the com- plaint admitted by the respondents at the hearing , and on testimony which is uncontro- \erted. 079100-40-vol 65 l 0 128 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. F. Moss. George Moss, Arthur Szerlip, and L. H. Szerlip.' They, have their principal office at 113 53rd Street, Brooklyn, New York, and a branch office in New York;;City, and operate plants at 53rd Street and 58th Street, a warehouse at 90th Street, Brooklyn, New York, and a third plant at Philadelphia, Penn- sylvania. This proceeding is exclusively concerned with the Brooklyn plants and warehouse which are engaged in the manufacture of marking devices, metal goods, and machine articles. The value of raw materials purchased by the respondents during the year preceding the hearing was in excess of $50,000, of which 40 percent was shipped to the Brooklyn plants from- points outside the State of New York. The value of the products manufactured by the re- spondents during the same period was in excess of $50,000, of which 40 percent was shipped to points outside the State of New York.' The respondents admit that they are engaged in commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED The International Metal Engravers Union is an unaffiliated labor organization which admits to membership employees of the respondents. III. THE UNFAIR LABOR PRACTICES A. Background The respondents' opposition to the Union was both outspoken and long con- tinued. It was, for the most part, expressed through General Manager L. H. Szerlip. In July 1943, John E Kearns , a Board field examiner , had occasion to interview Szerlip regarding charges then pending According to Kearns' undenied and credited testimony, Szerlip , with reference to a letter written on June 26, 1942,$ pointed out that "he was opposed to the practice of the Union exacting tribute from the members in the form of dues." In January 1944, Kearns , accompanied by Conrad Woeltel, general secretary -treasurer of the Union, and its representative of record in this proceeding , called on Szerlip, who again said, "I am opposed to any union exacting tribute from my employees in the form of dues or fees, " referred to Woeltel as a racketeer, and declared that he would prefer to close the department rather than reinstate a discharged employee "and get the union in."' At the hearing in the representation proceeding on April 13 and 14, 1944, Szerlip served as counsel of record for the respondents. At that time he opposed the unit proposed as not sufficiently inclusive. In particular, Szerlip objected 6 Of the four partners, B. F Moss takes little active part in the conduct of the business because of age and illness . Arthur Szerlip is in charge of the New York office and "is never at the factory " In this report, unless otherwise specified , "Moss" refers to George Moss and "Szerlip" to L H. Szerlip. ' These amounts and percentages are those stated in the Board's decision in the represen- tation case. The respondents agreed in the instant hearing that the present facts were substantially similar. 8'the paragraph from this letter in point here reads We are not interested in whether they [the employeep] are members of a union. We do not care whether they feel like paying tribute to anyone If'thev are members of a union, and are good and helpful to us, we will retain them , and if they are or are not members of a union and are inefficient or otherwise detrimental , we will not keep them ° These findings are based on testimony by Kearns Szerlip did not specifically deny these statements. He was asked, "Do you recall saying you would do everything possible to prevent your employees from paying tribute to any union for the right to work?" and denied making such a statement HENRY MOSS & COMPANY 129 to the proposed exclusion of clerical workers. Ile argued on the record that a union whose jurisdiction did not include clerical workers was "not truly repre- sentative of the employees of the company, and by this attitude . . . [the Union sought] to divide the employees against themselves by accepting some and reject- ing others." Szerlip stated further, "Of course, I feel that an election should not be ordered in any sense, because I do not believe that this petitioner is representative of our organization." He further contended that signatures to union application cards had been secured through duress or fraud and in some cases "were obtained from men and women in an intoxicated condition." He attacked Woelfel as an alien given to vicious and unfair methods who had secured adherents by "slanderous and libelous statements and by exciting class hatred." These assertions Szerlip substantially repeated as a witness during the hearing in the present proceeding saying: Because I don't think the proper method of soliciting membership, to induce them to join is merely to get them drunk and have them sign papers under the influence of liquor. I don't think it proper for any so-called organizer to vilify individuals and make scandalous statements about them and by causing dissension in trying to organize. If y ou have something worth while, you can always sell a good product B. Objections to the election As noted above, the Board issued its Decision and Direction of Election on flay 17, 1944. The Union thereafter instituted a pre-election campaign through the medium of meetings, speeches, and the distribution of circulars outside the respondents' plants. Notices of Election, setting June 7, 1944, as the election date, were sent out from the Regional Office, on May 27, 1944. Thereafter, Kearns called at Szerlip's office to make arrangements for the election. At this time Szerlip stated that "he would do all lie could to beat the union."'o On May 31, Szerlip assembled the employees both at the 53rd Street and at the 58th Street plants and addressed them on the subject of the Union and the forthcoming election. Szerlip's account of the content of this speech was given after he had opportunity to refresh his memoiy from stenographic notes taken at the time. He spoke extemporaneously and the text of his speech at the two plants varied somewhat After study of the testimony of Szerlip the under- signed draws therefrom the following summary of his speech on May 31, 1944. He informed the employees that he "had been requested to address them by their own co-employees" who had asked him certain questions and given him information. Under these conditions he felt that it would "be no more than right" that lie "should outline the policy of the company in public fashion" Szerlip disclaimed any desire to control the employees' membership in any or- ganization, and stated, as his testimony reads, "That was entirely a matter of their own choice, that we were not interested in that at all," but were "interested primarily in the quality of their work." Szerlip stated that the "company didn't have any objection to unionism" but told his hearers to watch the organization with which they affiliated themselves His testimony at this point was, "just as I would tell my own children if they were to ask me for advice." Similarly lie informed the employees that it was entirely within their province to vote as they desired " However, he warned those present "to be careful of the com- 10 This quotation is from Kearns' undenied testnnony which is credited by the under- signed. 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pany they keep" and make sure that the Union of their choice was "best for their welfare "" With reference to inquiries which he stated had previously been made to him, Szerlip told the employees that joining a union was a matter for their own discre- tion and choice and that no one could be forced to join. He promised "to back up any employee who did not wish to join the union." Continuing, Szerlip said that the respondents and particularly he himself, was "opposed to the closed shop principle in that it denied a person the opportunity of free choice" and "they could always understand that we did not see eye to eye with the closed shop principle." Although "they might have their union, they might accept it or join it, and the company would hold nothing against them." Szerlip testified that he referred to the Union as follows : I did say that I thought that if I had a good service to render or a good product to sell or a good union to offer that I could sell that service or that product or that union on the strength of what I had to offer, and that I did not think that vilification, intimidation, booze parties and similar pressure would be necessary if my product was worthwhile. And I said, it is for you, therefore, to decide whether the offer is made to you on the strength of that which the union actually has. Earlier testimony by Szerlip referring to this speech reads that the Union "had not indicated that they were affiliated with any nationally known labor organization, either the A. F of L. or the C. I 0 and I questioned whether they were joining a responsible outfit." '2 At the 58th Street plant, where most of the elderly employees worked, Szerlip referred to statements that the respondents were not disposed to continue older workers in employment. He assured his listeners that the Company both in peace- time and in wartime "would consider it well worthwhile" to retain the elderly people since they "had proven to us that they showed more sincerity [ and] paid closer attention to their work than the younger folk who did not or had not acquired patience" and were handicapped by the "exuberance of youth." Under cross examination, Szerlip stated that during this speech he had said to the employees, "Mr. Woelfel had called me nasty names and I retaliated in like kind, and I was sorry that I had dignified him by doing it." Marguerite B. Lusk, an employee at the 58th Street plant, gave the following account of this speech by Szerlip: He didn't object to us joining the union but he didn't like that particular union's method, attitude, and dealing, and it was a racketeer union and Mr. Woelfel is using Gestapo methods. He did mention the fact that he didn't like the fact that when a company was union, the workers had to go on a uniform scale, and there were em- 11 Elsewhere, Szerlip gave the following version of his remarks on this point : The only thing I want you to do is to be sure that it is for your best interests. If it is for your best interests, if you think you are [to] gain by your association with this particular party who is organizing you, you join If you think you are not going to gain do not join it. It is up to you alone to do as you wish. 12 Working Foreman Alfred Kirk gave corroborating testimony, as follows : He said this union that was trying to be organized in the plant wasn't chartered with the American Federation of Labor, and he didn't have no objections in the CIO or the American Federation of Labor but he did have an objection in the racketeer union. HENRY MOSS & COMPANY 131 ployees who could not work to the extent to justify that uniform scale ; there- fore, he didn't feel it was the proper thing for an employer to be compelled to pay workers who were not producing as others were to a uniform scale. That was one of the objections he had against the general attitude of the union. Under cross-examination Lusk testified further: Q. During the course of the first speech, were any instructions given by Mr. Szerlip as to how the people should vote? A. No. Q. Whether they should vote or not vote? A. No, only it was understood he didn't approve of that union because he told us they didn't belong to the A. F. of L. or- Q. Did he say clearly he didn't approve of the union? A. That particular union he considered a racketeer union. Lusk's testimony was supported by Kirk, who testified that Szerlip stated that in case the Union won the election it would demand an increase in pay and he "wouldn't be able to pay it." Kirk also stated that Szerlip said the Union was "a racketeer organization." Szerlip was an evasive witness, often manifesting an intention to tell less than the required "whole truth." Lusk and Kirk on the contrary, were trust- worthy witnesses answering all questions freely and with obvious care to tell nothing but the truth. Under these conditions the undersigned accepts their testimony that Szerlip made these statements on May 31, 1944. Szerlip testified that on May 31, 1944, he sent material for eight signs, relative to the Board election, to his brother, Arthur Szerlip, a partner, requesting that they be ready by the following day. Szerlip asked that two signs be made up, one to be posted in each plant. They were to be in two colors, 28 inches wide and varying in length as the volume of copy dictated. The wording follows : 1. Vote as you wish. Do not be intimidated. 2. Vote for the truth and your welfare. 3. Vote the American way. No Fear No Malice No Insults 4. Will your vote be based on vilification or on honesty and fact. 5. Vote for the truth. 6. "The priceless ingredients in each product are the honor and integrity of its maker" says a leading medical manufacturer. Be guided by honor and integrity in all your work says the company.13 7. The National Labor Relations Board has decided that Jake Bulin, Al Kirk and other productive employees are entitled to vote.14 8. Vote, Vote, Vote Vote yes or no but be sure to vote.16 13 Underscored phrases in this sign are marked "large" in the copy, other matter is marked "small." 14 This is the form posted at the 58th Street plant when Buhn and Kirk were working foremen. Szeilip's note which was attached to this copy directed that a form for use at the 53rd Street plant omit their names and add "excluding office and clerical" after pro- ductive employees. The posting of this sign has added significance where Szerlip's testimony at the hearing in the representation case that "Al Kirk and Jake Bulin are union men," is noted. 11 The matter below, as Szerlip testified, was copied from the sample ballot sent in by the [Board] 0 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mark an "X" in the square of your choice Do you desire to be represented by International Metal Engravers Union YES q NO q Here or Here You Decide Szerlip testified, and the undersigned finds, that he picked the finished signs up at his brother's house on June 1, 1944, and the following day "went around with thumb tacks and stuck them up." Szerlip did not specifically testify that these eight signs were all that he had posted. Lusk, whom the undersigned finds to be an exceptionally careful and trustworthy witness, gave the following testimony regarding an additional sign : One mentioned about Mr. Woelfel, with relation to his nationality, being a foreigner and that-another about racketeer. This testimony, presented on the first day of the hearing, was not denied and is credited by the undersigned 1° Although, as noted above, the official election notices were sent out on May 27, 1944, they were not posted in the respondents' plants, as-Szerlip admitted, until "the Saturday preceding the election," i. e., June 3. Kearns received com- plaints through the Union that the notices had not been posted and on Friday, June 2, visited both the 53rd Street and the 58th Street plants in an unavailing endeavor to make an inspection and determine the truth of this report At the 53rd Street plant Kearns, in the absence of Szerlip, presented his request to Moss who told him that since the plants were engaged in war work he could not enter without permission from the proper military authority. Kearns pointed out that he had been in the plants on several prior occasions and that this require- ment had never been made He asked to see Szerlip, with whom he had previ- ously arranged his entry into the plants. Kearns was told that Szerlip was not available. Thereafter he went to the 58th Street plant and was refused admittance by Samuel Spanier, plant superintendent. On reaching his office next day Kearns found a message from the respondents saying that the notices had been posted. This statement he verified through the Union As Szerlip admitted in his testimony, the posting of the Board's official notices followed by a day and a half the posting of his own signs relative to the election.17 There was similar delay in furnishing an eligibility list for use at the election. Such a list was delivered to Kearns at his home at 8: 30 p. in., June 5, 1944. Next day, Kearns asked Szerlip for an opportunity to check the list against the respondents' pay roll. This request was refused. Szerlip assumed responsibility for the preparation of the list, testifying, "The list was submitted to me of employ- 1° It is admitted that a sign r^ading : "The Truth Wins" was posted over the door of the plant on the morning after the election. It was still posted at the time of the hearing in the instant proceeding. 17 These findings are based on Kearns' credited testimony Moss denied that he had refused to admit Kearns. His version was that he had referred Kearns to Szerlip. The witnesses agree that Kearns did not in fact enter the plants. HENRY MOSS & COMPANY 133 ees, and I eliminated those which in my opinion were asked to be eliminated by the [Board ] in their decision . I eliminated those which were confined to the office and those which were listed in the category of managers or chief super- visors, and the others , following the Board's ruling, I had contained in the sheets which I forwarded to the home of Mr Kearns " Due to the short time available Kearns was able only to check the list with the Union by telephone At that time the omission of Fred Harden 's name was noted. -Harden, one of the complainants in this proceeding, had been selected to be an observer for the Union at the election The date of his selection was not definitely fixed but since it was prior to May 29 , 1944, it was within his period of employment by the respondent On the evening of June G. Harden , and others, made speeches at a union meeting attended only by the respondents' employees. Harden urged the employees to join the Union as the only organization available in their industry He combatted the idea that it was not a legitimate union because unafhliated with either the A F of L or the C I 0 Many independent unions, he asserted , were large and powerful Harden attacked the health and safety conditions existing in the shop . He stated that protection through work- men's compensation was inadequate because of the employees ' meager wages. He illustrated this point by reference to the case of Mary Leo, who had recently suffered an injury to her hand.' Szerlip was informed of Harden' s speech next morning. Evidently he was told that Harden had asserted that the respondents ' plants were not covered by workmen 's compensation insurance.19 This report Szerlip disproved in speeches' made June 7, 1944, at each plant Szerlip displayed his insurance policy and cancelled checks covering premium payments . He also stated that Leo had been fully paid by the respondents for her normal time , and overtime earnings , during the period she was absent because of her accident. This statement Leo substan- tiated when questioned by Szerlip at the 53rd Street plant during his speech.20 The record shows clearly that Szerlip 's remarks on June 7 went beyond an answer to Harden's speech as reported to hiir_. He urged the employees to get out and vote. He also made reference to a letter mailed to the employees by the Union under date of June 5, a copy of which had come into his hands . Szerlip's testimony with reference to the union letter and other union circulars was : . . . I said that previously we were called a "Hitler" and now we aie compared to "Smiling Tojo ," that we were stooges , and that we would stab our friends in the back, and that we had been called rats , and I asked if the employees accepted that brand of vilification as the truth, and I said, if you do, you decide, it is entirely up to you.2i "This summary is drawn from uncontroverted and credited testimony by Harden. '° Szerlip testified that several employees, including Janet Bissett, Jacob Bulin, and George Rao, came to him the following morning after Harden's speech to inquire whether they were covered by compensation. The three employees named were all called as wit- nesses, but Bissett and Bulin were not questioned about Harden's speech. Rao testified that he had no knowledge that anyone had said the employees were not covered by insurance against accidents. Employees Andrew LoBianco and Harold Schlig testified that they heard Harden's speech and told Szerlip of it next day. LoBianco testified further that he had previously told Szerlip of his intention to attend the Union meeting and that he gave Szerlip a copy of a union letter dated June 5, 1944 which had been mailed-to him. t0 This summary is drawn from Szerlip's testimony which is corroborated by other witnesses. 21 In so stating Szerlip misapprehended the application intended by the Union. The pertinent paragraph from the letter reads : Conditions such as these are possible only because we workers make no organized efforts to protect our interests. This enables the employer to deal with us as individuals, it enables him to snipe away at each of us separately, using us as he sees fit to "feather 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Szerlip further attacked Harden directly stating that he was not a good workman; that he was supposed to have been a dental technician '2 but could not get a job, and "that he could not place him any place in the plant because he didn't seem to stay put because he didn't seem to be efficient " 22 Szerlip also said of employee John Perito, who was designated as the second union observer at the Board election, that he had been planted in the shop as a union agent to organize the employees 2+ Kearns was in charge of the election. When the observers assembled shortly before 5 p. m. on June 7, 1944, Frank Morgenstern,25 an employee who had charge of ship nomenclature installation and was an observer for the respondents, pro- tested to Kearns against Harden serving as an observer for the Union. Mor- genstern asserted that Harden was not an employee of the respondents and was therefore ineligible to serve. Kearns rejected this protest since, as he testified : I had already investigated the circumstances under which Mr. Harden had been laid off . . . I exercised my discretion as field examiner to decide whether or not that he could act as an observer. I I reached the conclusion that it would be more harmful to a free election to remove him. Morgenstern telephoned to Szerlip and related the failure of his protest. Szerlip then came to the polling place. Morgenstern's credited testimony as to what then happened reads as follows : Well, Mr. Szerlip came in very excited and said that the election was a farce, and that Mr. Woelfel was electioneering outside, and that Mr. Harden was 'a representative of the union though he had no right to be because he was not employed by the Company. Mr. Kearns also got very excited and threatened to call a policeman ifoMr. Szerlip did not get right out, and he said he was running the election and Mr. Szerlip had no right to interfere and come in that way. After a short while, Mr. Szerlip left . 24 Woelfel came to the door of the polling place at about the same time as Szerlip and made complaint to Kearns that Szerlip was escorting voters in his car to the corner diagonally across from the polling place 27 These events took place while about 12 employees were in the polling place his own nest " This method of being beaten from within is an old, but very effective weapon In the hands of a crafty employer it must be fought vigorously. We must not fall for this booby trap ! Instead, in these next important days we must beware of the "smiling Togo's," the stooges who pretend to be our friends, but who will not hesitate to stab us in the back These rats advise against voting four [for] our union. They know they must "play ball," they understand and are afraid, for they know there is no room for these (sic) kind in a union shop. 22 The reference is to Harden's former occupation. 23 This quotation is from the credited testimony of Lusk. Kirk also testified to this criticism by Szerlip regarding Harden. 24 Szerlip admitted this attack on Perito. Kirk testified that Szerlip said of Perito, "he knew that John was planted in the shop to try to organize the place " Lusk's testimony was that Szerlip said, with reference to Perito, "we allowed an outsider to come in and organize us and stir all this trouble and dissension." 25 At the time of the hearing in the instant proceeding Morgenstern had left the respondents' employ 21 Harden testified that Szerlip said, "This man has no right to sit here as an observer. He is not in my employ." "He is fired " "This whole election is a farce." Kearns' testimony was that Szerlip "told me I should put out Harden immediately or I was a fraud and in league with the Union." 21 This finding is based on Kearns' undenied and credited testimony. HENRY MOSS & COMPANY 135 After the polls were closed and the votes counted, Szerlip. said to Morgen- stern, as Kearns testified, "Don't worry about the challenged ballots I will pick up 25 more votes there " When questioned regarding this occurrence, Szer- lip replied, "I don't know what I said then. There was a lot of things passed by the union people and by us," and further, "there were some wise cracks passed by all parties around, and we went out. This is all. I don't remember what was said." In this state of the record, the undersigned credits the testi- mony as to this incident given by Kearns. Concluding findings The undersigned finds, on the basis 01 the above-recited acts and utterances, that the respondents not only failed to maintain the neutrality which the Act requires employers to observe in representation proceedings 28 but embarked upon a partisan policy In effect, they treated this representation proceeding as' a contest between the respondents and the Union. This policy was adopted by the respondents soon after the advent of the Union in their plants and con- sistently pursued until the date of the hearing in the instant case. In his speeches of May 31 and June 7, 1944, Szerlip made positive partisan declarations. Significant of his attitude is the statement of employee Charles Blaustein, called as a witness by the respondents. Blaustein, when asked if Szerlip expressed any opinion as td the election to be held.later that day, replied, "He said the truth will win, and he was sure he was right and he would win." Both pre- election speeches were strongly anti-union in character. Attempts by Szerlip to justify them under the principle of freedom of speech as mere expressions of opinion and refutation of erroneous union statements are proven invalid not only by the credible testimony of Board witnesses but by his own admissions on cross-examination . When viewed in the setting of the respondents' consistently anti-union campaign, these speeches clearly cross the line dividing legitimate `exercise of freedom of speech in democratic processes from utterances which interfere with the employees' "full freedom of association" which the Act en- visages. They are correctly regarded as acts in defiance of the declared policy of the United States "to encourage the practice and procedure of collective bar- gaining." The respondents assembled their employees during work time and expounded to them their own policy of opposition to the Union. They under- took, through direct action, to defeat the policy which the Act was designed to effectuate. The respondents delayed the posting of the Board's official notices of elec- tion. Meanwhile they placarded both plants with notices of their own devising, which, interpreted in the light of Szerlip's speech on May 31, 1944, can have but one possible significance and that an anti-union one. Szerlip's invasion of the polls on June 7, and Morgenstern's and Szerlip's protest of Harden's functioning :is a union observer, which took place in the presence of numerous employees waiting for an opportunity to vote, were inexcusable interferences with the Board's plenary control of election procedure. As the Supreme Court has said, "The control of the election, procedure, and the determination of the steps neces- sary to conduct that election fairly were matters which Congress entrusted to the Board alone." 29 On the basis of the whole record, the undersigned finds that the election did not fairly reflect the untrammeled wishes of the respondents' employees and did 21N. L. R. B. v. Sunbeam Electric Mfg. Co, 133 F. (2d) 856, 860 (C C. A. 7). "I Waterman Steamship Corporation v. N. L. R. B., 309 U. S. 206. 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not constitute a fair test of the employees ' desires as to representation. Ac- cordingly, it will be recommended that the Board set aside the election held on June 7, 1944. C. The discriminatory discharges Howard Schleenbecker was hired by the respondents about April 16, 1942, as a polisher in the 53rd Street plant In Octobei 1943, at his own request, he was transferred to,the plating department located in the SSth Street plant. Schleen- becker had developed stomach ulcers while employed by the respondents and thought the dust in the polishing department was detrimental to his ailment. His initial wage was 35 cents an hour In each of the months May, June, and July 1942, he received an increase of 5 cents an hour. In November of that year he was given a fourth 5-cent increase which gave him an hourly wage of 55 cents an hour. In 1943 he received raises of 5 cents an hour in each of the months May, July, and December. His final increase, effective in the pay-roll week ending December 16, 1943, raised his wage to 70 cents an hour.'0 Except for his working foreman, Alfred Kirk, Schleenbecker was then the highest paid employee in the plating department. Schleenbecker testified, and the under- signed finds, that he always asked Moss for these raises On the occasion of his last increase, he suggested to Moss that "he would have to go to see if [he] could make more money some place." Moss advised him "to keep [his] shirt on" and promised the increase. Schleenbecker's service with the respondents terminated on March 27, 1944. Moss testified that he "was discharged for poor workmanship and failure to attend." He stated further : Schleenbecker occupied a position which became a bottleneck. As a matter of fact, that is why, the only reason why we kept him for the period he was there. I can assure you, as you know, the manpower situation at that time was most acute, during the period of the war, and we had to take what we could get, that wasn't what we wanted. Criticism of Schleenbecker's work performance was mainly directed to an incident occurring soon after his transfer to the plating department in October 1943. At the time the department was engaged on a large order and had a definite daily quota to meet When told by Kirk of the output expected, Schleen- becker, who thought it was an impossible assignment with the available tanks, admits that he "flew off the handle," and said "if you can do it, do it your- self."" Szerlip testified that Schleenbeck thereafter left the plant. Kirk and Schleenbecker testified positively that he did not leave. The undersigned, after consideration of the demeanor of these witnesses and the setting of their re- spective testimony in the whole record, accepts the version of Kirk and Schleen- becker, the witnesses most intimately concerned, and rejects that of Szerlip. Both Kirk and Schleenbecker testified further as to the incident that there had iu It is the practice of the respondents to pay on each Monday for the week ending the preceding Thursday ii Kirk testified that Schleenbecker said, "If you can work them, I can't. You do it yourself." Szerlip's testimony , evidently referring to the same occasion , was that he found the work blistered from over long immersion in the tank . On calling this to Schleenbecker's attention , he said, "I am doing all I can do, and -if you can do better, do it yourself." While Moss did not directly participate in this incident, he testified that Schleenbecker said on an occasion "early in 1944," "I can't do it any better. If you think you can do it better do it yourself." a HENRY MOSS & COMPANY 137 been trouble with the solution in the tank which had been incorrectly com- pounded or had been tampered with ffi They agreed that after this condition was -corrected Schleenbecker did the amount of work required. Criticism of Schleenbecker's attendance record was vigorously voiced in the testimony of Moss, Spanier, and Szerlip, as respondents' witnesses. This testi- mony loses in impressiveness because of its exaggerated and inexact character. Thus Moss testified: I know he had a very poor attendance record. It was more inattendance than attendance record. . . . He was sporadically, periodically out. Mondays was his favorite day out. Particularly after Sunday. He did not work Sunday but he was out Monday. Saturday continually. That was a live-day week man. He did not come in Saturdays. After much begging we got him to come in a few days. It was usual for him to come in at 10 o'clock, 12 o'clock, two o'clock, whenever he darned pleased. The exact tinie card record of Schleenbecker for 1943 and 1944, as placed in the record,33 does not bear out Moss' testimony. There is no support whatever for Moss' testimony that Schleenbecker habitually reported late. On every day covered by the time cards fn evidence Schleenbecker, when present, reported on time for the beginning of his shift at 8: 30. The further criticism of Schleen- becker's record by Moss has some justification when applied to the 8 months' period from January through August 1943. During these months Schleenbecker was absent 45 days, of which 24 were Saturdays and 10 were Mondays. In the 34 weeks included, his hours fell below 40 in 15 instances. He worked 44 hours in each of 8 weeks ` and exceeded that number in but 1 week. However, Moss' criticism has very slight, if any, justification when applied to Sclleenbecker's last 7 months of employment with the respondents. This period covers all of his work in the plating department. From the week ending August 20, 1943, to that ending March 23, 1944, a total of 30 weeks," Schleen- becker was absent from all causes on 15 days ' No account is here taken of 22 Saturdays on which he worked from 4 to 7 hours. Of the 15 days on which Schleenbecker failed to attend 7 were Satur- 32 Spanier testified that the solution in one of the tanks had been tampered with but denied that it hampered Schleenbecker's work. The undersigned rejects this denial. 13 As noted above the time cards for 1942 were also offered by the respondents but later were withdrawn. >u This includes the week of March 4, 1943, for which the time card with clock punchings is missing. The duplicate card shows earnings of $25 30 which, at Schleenbecker's rate of 55 cents an hour, accounts for 40 hours at straight time plus 4 hours at time and a half. It is inferred that Schleenbecker was not absent during this week. 81 The time card for the week of January 13, 1944, is missing. Since Schleenbecker worked a total of 50 hours that week, it is clear that he was not absent on any day. 8° A comparative statement of Schleenbecker's absences in the two periods follows : Mon. Tues. Wed. Thurs Fri. Sat. Total Jan. through Aug 1943----------------- Sept. 1943 to March 23, 1944 ------------ 10 2 5 2 2 0 1 2 3 2 24 7 45 15 Totals--------------- ------------ 12 7 2 3 5 31 60 l '138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD days 37 In this 30 weeks Schleenbecker's weekly hours fell below 4033 in 8 weeks ; September 9, 28 hours ; September 16, 38 hours ; November 11, 33 hours ; January 6, 34 hours ; January 27, 28 hours ; February 3, 10 and 24th, 30, 28 and 38 hours respectively." He worked 44 hours or more in 20 weeks during the 30-week period. The undersigned finds that Schleenbecker's record of attend- ance prior to this 7 months' period was too remote to furnish justification for his termination on March 27, 1944. It is noted further that Schleenbecker was deemed worthy of a final increase in pay on December 16, 1943, which falls about in the middle of his last 7 months of service with the respondent. Judged in the light of this 7 months' record of attendance the strictures of Moss must be found to be unsubstantiated. Moss further testified that he spoke to Schleenbecker about the quality of his work or his absenteeism "on manifold occasions." He stated that the first occasion was "-,cry early in his period of employment by us," and that be had spoken to him "any number of times" in 1942. Moss' further testimony reads : When he was absent, I spoke and complained about it. When his work was not getting out, I complained about it, on any number of occasions, a great number, a good.number, a half a dozen, eight or ten, something of that sort. Moss also testified that he spoke to Schleenbeclfer about his work "quite a number of times" in 1943 and "several times" in 1944. He was unable, however, to specify these occasions nor to give any account of his conversations with Schleenbecker. The only exception to this complete lack of specificity is Moss' testimony relative to Schleenbecker's statement that he could not produce to the extent desired noted above in this report. Spanier, similarly, when asked whether he had ever talked to Schleenbecker about his absences, answered, "Innumerable times." When asked, how many times, he answered, "Five, six, seven, eight times." However, Spanier gave detailed testimony relative to such incidents appPying only to Schleenbecker's last days of employment. Spanier testified that Kirk was in charge of the plating department, and gave testimony regarding Kirk's reports to him on Schleenhecker's work, reading as follows : A. On some occasions he [Kirk] ,spoke to me about his not being there, he was absent. On other occasions, that he was careless with the work in the tank. Some of the work came out burned. . Q. Did he complain about his work? A. Not to any great extent, only the occasions I have mentioned. Schleenbecker testified positively that neither Moss nor Spanier had ever spoken to him in criticism of his work. Kirk's testimony includes the following excerpt: Q. Do you recall any occasion recommending or telling somebody Schleen- becker's services were not satisfactory? 37 Saturday was a regular work day. However, the regularity with which Schleenbecker worked either 4, 6, or 7 hours shows that these were approved hours. Spanier testified, "Well it is part of the rules we work Saturdays all day." Szerlip gave similar testimony. 38 Szerlip was asked, "how many hours did you expect Mr. Schleenbecker to work from December 30, to March 30, [1944]." He answered, "we would prefer him to work 40 hours and give us 40 hours of 8 hours a day .. . .11 39 It will be noted that this period includes the Christmas and New Year season. Szerlip stated that he would not "hold it against the employee for not appearing on any of the real national holidays." HENRY MOSS & COMPANY 139 A. I don't recall that Outside of when he wasn't there, the work was being produced. The criticism of Schleenbecker's attendance record by the respondents' wit- nesses was entirely undiscriminating. Any failure to work was presented under the guise of absenteeism, without inquiry as to its cause. Thus Szerlip sum- marized Schleenbecker's record in this blanket indictment : Excluding Saturdays and Sundays you will find he was absent not less than 43 days . . . o s a x * a s Yes, and I made some calculations this past Sunday, and I find that there is approximately, giving Mr. Schleenbecker the benefit of the count, 35.7 percent imperfect weekly attendance and 8 5 percent lost days, both per- centages excluding Saturdays and Sundays. Schleenbecker testified, without denial that he was absent 3 days because of his father's death and another 3 days because he had been injured by stepping on a nail. There is partial corroboration of this injury in Spanier's testimony. When questioned whether such an injury caused Schleenbecker to be absent, Spanier answered, "Possibly so. I recall that he limped there at one time." Moss made inquiry as to Schleenbecker's absence at the time. Since Moss gave Schleen- becker "$3 00 out of his pocket" in lieu of workman's compensation, it may be assumed that Moss was satisfied that the 3 days' absence was legitimate.40 An undetermined amount of absence on the part of Schleenbecker was d>>e to his temporary disablement with stomach ulcers. Spanier beard from Kirk that Schleenbecker suffered from this ailment and agreed that this was a legitimate cause for absence Schleenbecker estimated that his absence from this cause totaled 10 days, although "It might have been more." This absence, added to that caused by his father's death and his injury, accounts for over a third of the 43 days' absence computed by Szerlip in Schleenbecker's 2 years of employ- ment with the respondents Some further allowance should be made for ex- cusable absence on national holidays." As noted above Moiss Gaily in his testimony assigned reasons for Schleen- becker's discharge. Near the close of his testimony, however, Moss changed this testimony and stated that Schleenbecker was not discharged but had quit.42 Moss' testimony at this point reads: Air. Spanier said that he had called Mr Schleenbecker's attention to his poor workmanship and to his inattendance Air. Spanier then told me that Mr Schleenbecker came back into the office in the morning and said, "All right, I quit." Sp.uuer, testifying subsequent-to Moss. rave a detailed account of his contacts with Schleenbecker just before his termination. Spanier's version was that he spoke to Schleenbecker 2 or 3 days before his termination. Spanier's testimony as to this interview reads: I told him that he was on a job that was very important and that part was a bottleneck. We had to get the work through, had contracts for a 40 Schleenbecker, while testifying as a witness in the Board's rebuttal, gave a circum- stantial account of this matter, credited b3 the undersigned "As noted above Szerlip testified that he would not "hold it against the employees for not appearing on any real national holidays." 42 Moss' statement was, "Mr. Schleenbecker, as I understand, quit That is my recollec- tion, that he quit." 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD quarter of a million stencils to go through and we were behind on our com- mitments, and the expediters of the Navy were after us, and he wasn't co- operative, and unless he would give his job more attention, give us more of his time, he wasn't going to be around there very long or words to that effect. Spanier gave the following testimony relative to events on Schleenbecker's last day in the 58th Street plant: I went back there about sometime between 8: 30 and quarter of 9 and I commenced to talk to him and I was interrupted and I had to get back to the office. * * * * * * * I started to tell him about his not being in Saturdays. I was interrupted, and I got back again about 10 o'clock . . . I told him I was very much dis- appointed and dissatisfied with his attendance. We needed his services there, and unless I could get it, he wasn't going to be around there very long. I left . . . and about 10: 30 or thereabouts he came out . . . To the, front of my office . . . and he said, "The hell with this." And I said, "What is the matter, Howie?" He said, "I am fed up, I am through." I said, "OK, go to 53rd Street and get your check. It will be ready." Schleenbecker's testimony, which was fully corroborated by that of Kirk, was that he had been ill with his stomach ailment and absent on the Saturday pre- ceding his termination on March 27, 1944. He continued ill through Sunday but reported at 8:30 Monday morning thinking he "would be able to stick the day out." After two hours he felt too ill to continue and asked Kirk's permission to leave which was granted. Kirk's testimony as to the incident reads : Q. Do you remember the day that Mr. Schleenbecker was laid off, the last time he worked in the plant? A. I can't recall the day exactly but he was off the day before, I imagine, and when he came in, he complained of feeling sick, so I said to him "Listen, if you feel sick, you better go home because you are no use to me while you are sick." " March 27, was Monday and a pay day. About 4: 30 p. m. Schleenbecker, as he testified, gave his friend, Charles Herbert his badge and a note to serve as identification and requested Herbert to get his pay" Schleenbecker further tes- tified that Herbert gave this note to Spanier who gave him two checks, one for the regular pay day and a second covering Friday and the 2 hours' work on Monday. Spanier then took the badge from Herbert and told him Schleenbecker was through. That evening, as Schleenbecker testified and the undersigned finds, his fore- man, Kirk, came to his home and told him he was laid off and that Spanier had told Kirk not to let him start to work if he came in. Next day Schleenbecker went to the 53rd Street plant office in order to see Moss and ask why he was laid off. He was told that Moss was very busy, whereupon he inquired whether 11 Schleenbecker testified that, Kirk said : "If you feel that bad, go ahead home." 44 As his name on time cards indicates, Herbert had collected Schleenbecker's pay for the week of February 3, 1944 and for four weeks in 1943. HENRY MOSS & COMPANY 141 he could obtain a release . A clerk thereupon gave him a release, which is in evidence, dated that day and signed with the name G. S. Moss's Spanier testified that lie telephoned to the 53rd Street office soon after Schleen- becker left on Monday and instructed them to prepare his checks and a release. It was Spanier's further testimony that under such instructions the paymaster would prepare the check immediately. Spanier denied having taken up the badge from Herbert and when first asked concerning a messenger coming for Schleenbecker's pay that afternoon, answered, "I don't recall any such incident." However, he admitted that he had once received a note asking for Schleenbecker's pay which to the best of his recollection was clipped to the time card. He was shown such a note dated March 27, 1944, signed by Schleenbecker and attached to his time card for the week ending March 30, 1944, reading as follows : "Will you please give this boy my pay. Thank you." Spanier identified his own signature appearing below the notation, "Check is at 53rd Street," which lie bad written thereon When checks were delivered to persons other than the employee, it was the respondent's practice to require per- sons applying to sign the time card. Schleenbecker's cards for the weeks ending March 23 and March 30, 1944, were both signed "Charles Herbert." Spanier explained as follows : It is my impression the one note covered both checks, because that check for March 23 would not ordinarily be ready until Monday, and that on the same day which another check was prepared and I believe both checks were received the same day and signed by the same individual under that one note. Spanier testified further that the check for the week ending March 23 would in the normal course of business come into his possession Monday, March 27, about 3 p. m. Herbert, since he arrived after 4: 30 p. in., would then have been required to sign the time card in Spanier's presence before receiving the pay check. When asked whether he recalled seeing Herbert sign any time card in his presence, Spanier replied, "I don't recall it He may have. I don't recall It.,, The undersigned notes that Spanier's testimony relative to his protest to Schleenbecker allegedly made 2 or 3 days before March 27 is inherently improbable when judged in the light of Schleenbecker's attendance record for his last 7 months of employment as set forth above. Moreover, in the 6 weeks preceding his termination Schleenbecker had been absent but 2 days, one of which was Tuesday and the other Saturday In this 6 weeks' period Schleen- becker worked in successive weeks 491/ , 38, 49, 40 50 and 46 hours. Szerlip said of the card for the 49 hour week, "I consider this a good card. * * * This is a swell card. If we could have that from him all the time there would be no argument." The time card for the week showing 50 hours, included 3, 9- hour days, 2, 8-Hour days. and a 7-hour day on Saturday. Szerlip said of the card, "I consider this a good card, likewise" It is clear that Schleenbecker's record as to absenteeism was materially better in the last 6 weeks of his em- ployment than it had been at earlier periods. After consideration of the record, the demeanor of the witnesses concerned, the specificity of their testimony, its accuracy or inaccuracy as shown above, 95 Szerlip stated that the signature on this document was G. S. Moss and that it had been affixed by an office employee with authority. The document in evidence is a type- written copy of the original exhibit and the name thereon is incorrect. 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD remembering that Kirk was the official best infornied ras to Schleenbecker's work performance since he was intimately associated with him as his working fore- man, and noting that both the note and the rel4ase in evidence exactly confirms Schleenbecker's testimony, the undersigned rejects the testimony of Moss and Spanier to the effect that Schleenbecker quit on March 27, 1944, and accepts the version of events occurring that day given by Kirk and Schleenbecker. •Schleenbecker did not join the Union until January 1944 In that mouth Moss asked him what he intended to do about the Union. Schleenbecker replied that he intended to stay in since the whole shop was signed up. Moss further asked him if be thought that some man on the outside could do more for him than Moss could and received the reply. "that was to be seen " " Schleenbecker attended union meetings and solicited applications for membership from his fellow workers. On a date not definitely fixed in the record, Schleenbecker was elected to succeed employee Robert Webber, who had served as chairman of the Union's organizing committee Sciileenbeckei agreed to assume this position. In March 1944. i e, shortly prior to Schdeenbecker's discharge. Szerlip came to Kirk in the 58th Street plant. Szerlip referred to Webber in opprobrious terms and declared, as Kirk testified, "FIe [Webber I started all this trouble with this union business." Later Szerlip asked Kirk if lie had ever seen Webber drunk in the 58th Street plant. Kirk replied in the negative and referred the question to Schleenbecker who also said that he had not." As Schleenbecker's testimony reads, "Mr. Szerhp then turned on me because I said 1 had never seen Bob Webber drunk, and lie said my work was no good and I should keep my month shut." Concluding findings The undersigned finds the contention of the respondents that Sclileenhecker's termination was a result of absenteeism and inefficiency unconvincing As the time cards in evidence show most of his absences were niaiked "OK" Schleen- becker's absences were most frequent in the first 8 months of 1943 In that year lie received three raises and his wage increased from 55 cents to 70 cents an hour. These raises were granted by Moss, who was his severest critic at the hearing. In the last 7 months of his employment Schleenbecker's attendance record was good and his total hours worked averaged over 40 per week The criticism of the respondents was entirely undiscriminating, inainiig no account of legitimate absences resulting from injury, illness, and the death of Schleen- becker's father These criticisms further covered the entire period that Schleen- becker worked for the respondents. Despite his attendance record, Schleen- becker was an acceptable employee for nearly 2 years during which period his wage was doubled by periodic increases. As appears from the testimony of Su- perintendent Spanier, a witness called by the respondents. Schleenbecker was discharged at a time when the plating department had a great press of work. It had a quarter of a million stencils to get out and was behind in its commit- ments. There was nothing new in the character of the service which Schleen- be kei rendered in March 1944 nor°in the respondents' need for those services. The new element in the situation in March 1944 was Schleenbecker's promi- nent position as chairman of the organizing committee for the Union The 4" These findings arc based on Schleenbeckei•s credited testinioni Moss slid not specifi- cally deny Schleenbeckcr's statements although when asked whether lie had ever questioned Harden or Schleenbecker regarding their union activities. Moss replied, "I never spoke to them or any other employee about union activity " V These findings are based on Kirk's credited testimony- It was Kirk's further testi- mony that, at this point there were words passed between Schleenbecker and Szerlip which he did not recall HENRY MOSS & COMPANY 143 respondents knew of his membership in the Union and his intention to retain it. Szerlip, in the month of Schleenbecker's termination, was outspokenly pro- voked by his defense of Webber, his predecessor in the organizing committee chairmanship Tile record indicates that respondents' officials had ready and prompt sources of information of happenings at union meetings. It is a fair inference made by the undersigned that it learned of Schleenbecker's elevation to the key post of chairman of the organizing committee. The record shows that other employees had absentee records worse than Schleenbecker. One hale employee, as Spanier admitted, was accustomed to be absent on periodical sprees sometimes lasting a week or more. Although, as Spanier testified, his total (lays of absence probably exceeded that recorded by Schleenbecker, he was still employed by the respondent at the time of the hear- ing. A female employee also had a record of voluntary absence which Spanier admitted was "possibly" greater than Schleenbecker's total absence from all causes. - The undersigned is further influenced by the contradictory character of the accounts given by the respondents' witnesses of events preceding Schleenbecker's termination. Witnesses for the respondents at first proceeded on the basis that he had been discharged, alleging absenteeism and inefficiency as justi- fication. Later Moss, supported by Spanier, gave detailed testimony to the effect that Schleenbecker quit. This account was disproved by the testimony of Kirk and Schleenbecker and by documentary evidence which clearly substantiated their testimony. After consideration of the record and of the demeanor of the witnesses, the undersigned concludes and finds that the respondents, on hearing that Schleen- becker held the key position in the Union's oaranizational campaign, seized upon the opportunity afforded by his illness and resulting absence oil Monday, Mal ell 27, 1944, to discharge him summarily without warning or explanation given to him. It is further found that Schleenbecker's discharge was based on his union membership and activities. By this discharge the respondents have dis- criminated in regard to his hire and tenure of employment and have discour- aged membership in a labor organization, and have thereby inteifeted with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act. Fred Harden was first employed by the respondents as a polisher in the latter part of August 1943. In late December he was transferred at his own request to the screw machine department where he operated a turret lathe. He contin- ued on this job about 10 days and again requested transfer He was then placed in the engraving depaitment. Harden's initial wage was 60 cents an hour. This was increased to 65 cents, effective in the week ending September 23, 1943 He received a second a cents an hour raise on December 28. 1943, on the occasion of his first transfer, and a final increase of the sanne amount on April 20, 1944 Testimony as to Harden's transfer into the screw machine department is sharply in conflict. Harden and his wife, Vera Harden, who was not an employee of the respondents, gave mutually corroborative accounts of what then hap- pened. Harden, early in December 1943, contracted a severe cold. He was absent, as his time cards in evidence show, from Saturday, December 4, through Monday, December 27, 1943. On December 26, as Hoiden testified, Mrs Haider went to the 53rd, Street office with a note which was addressed to MossIn this "Harden's credited testimonv explain-, the delai in collectnig hi, par as clue to tile filet that his Niife was enipioved in a liospitel and could not take a dal off earlier The under- signed notes that the amount due was only $5 20. 679100-46-vol 65-11 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD note Harden requested that his wife be given the pay due him and his release "because of his health condition." '° On Harden's time card for December 9, 1943, appears the name "Vera Harden," indicating that she received the sum due. On returning, Dirs. Harden, as she testified, reported to her husband that she had presented the note to an office employee and that thereafter Moss came out and said to her: I understand that your husband wants a release . . . will you please go back and tell your husband that I want him back. I want him definitely back. I am satisfied with his work and I want him back. Mrs. Harden further testified that she thereupon told Moss that she didn't think the plant was a suitable place for her husband to work since he had contracted a cold there. Moss said, "We will heat up that place, and let him come back to work." Moss further promised to give Harden any kind of work he wished to do and closed the interview by saying, "one thing I want you to tell your hus- band, not to do anything before he will get in touch with me." Moss declined to give Mrs. Harden the requested release. Harden testified that he telephoned Moss the next day and told him that he had contracted a second cold because of the plant's inadequate heating facilities and, had no intention "of going back on the job unless conditions would be im- proved." Harden also complained of the dust hazard in his polishing depart- ment, and requested an assignment as a lathe operator in a new department being set up. He suggested that an increase in pay would be acceptable. Harden testified that Moss assured him that new heating facilities were being installed, that he would give Harden "any job" he wanted and that he would give him a raise. Harden testified further that Moss definitely promised to give him a job operating a turret lathe in the screw machine department. Harden then returned to work on the following day, December 28, 1943.a . Moss testified, to the contrary, that Mrs. Harden called on him about January 1944, rather than in the preceding month ; that no note was presented, and that he personally did not give her Harden's pay. His version of the interview reads as follows : She came in and asked for me and told me her husband Fred was sick and would be off for a couple of weeks and wanted to know whether his position would still be open when he came back, and I said, well, I will do what I can to hold the position open, but when he comes back, let us see, and that was the sum and substance of our conversation. Moss further testified that he "requested one of the girls in the office to see [that Mrs. Harden] received her husband's pay" and that "Harden came back about two weeks later." Prior to Harden's return, as Moss testified, he had inquired of Kirk what type of work Harden had done and how good his work was. Moss' testimony as to Kirk's reply reads : Kirk informed me he wasn't up to snuff, he never did get the knack of polishing sheets, and, therefore, he could not use him. Moss positively denied that he had received a phone call from Harden at this time. He admitted that Harden received a raise on his return and was trans- ferred to the turret lathe. Moss explained this increase as based on the fact 10 This note was not produced at the hearing. As appears below Moss testified positively that no such note was presented. 60 Respondent's counsel stated at the hearing that Harden had testified that he was absent in January, rather than December , and that his absence only lasted one day. The record lends no support to this contention. HENRY MOSS & COMPANY 145 that operating the turret lathe required more skill than did Harden's job as a polisher. In resolving these conflicts in testimony the undersigned notes that although Harden testified without the aid of the respondents' records, his recollection is substantiated by the time cards and Social Security data introduced by the re- spondents. A copy of the quarterly report to the Social Security Board shows that Harden was "out" in the weeks ending December,16 and 23 and that these were the only weeks of absence during his full period of employment. Szerlip, after reference to the records, at first testified that Harden did not return until December 31, 1943. It was only after his attention was called to the fact that the Social Security record indicated attendance in the preceding week that he corrected this error. Further, time cards in evidence show that Harden re- turned to work on December 28, 1943, and that his raise to 70 cents was effective that week. Charles Moser, plant superintendent, whose jurisdiction extended over both plants, a witness for the respondents, testified, without contradiction, as to Harden's transfer : I put him in the polishing department, and he reported sick, and Mr. Moss recommended putting him in the screw machine department, and I did. Moser further testified that he had never had occasion to talk with Kirk about Harden's work since he "did his work all right until such time as he was home sick." Under these circumstances and influenced in addition by the proven inaccuracies and exaggerations in Moss' testimony relative to Schleenbecker's work record, as discussed above, the undersigned accepts the testimony of Mr. and Mrs. Harden relative to incidents connected with Harden's illness and trans- fer to the screw machine department and rejects such testimony by Moss and Szerlip as conflicts therewith. All witnesses agree in testifying that Harden requested a transfer from his job as turret lathe operator. Harden's statement was that he had difficulties with the foreman. Moss, who stated that Harden was not efficient in the post, testified as follows : "Well, he just was not fitted for that type of work. We had constant tool breakage and he did not seem to get the feel of the machine, and his foreman complained." " Charles Moser, plant superintendent, whose approval was a necessary prerequi- site for transfer in the 53rd Street plant, testified that Harden came to him with a "complaint that the machine was too heavy for him and he could not handle it the way he would like to." Later Harden was transferred to the engraving department. The undersigned does not find it necessary to resolve the conflicts in this testimony beyond noting that Moss' testimony as to Harden's inefficiency is not borne out by the record. Moser was closer to Harden than Moss and yet had no knowledge of the alleged ineffectiveness to which Moss testified. Moser testified that William Dolphin, Harden's supervisor after his transfer to the engraving department, had talked to him, "about four or five times" saying "that his [Harden's] work wasn't satisfactory." Moser, however, did not talk to Harden about the matter and testified that the early complaints of Dolphin did not seem to him "really justifiable because the man would only be starting in that department." 62 He stated, "the complaints later on impressed me a bit." "Neither Moss nor Harden could give the foreman's name and it does not appear in the record. s< Dolphin gave testimony which corroborates Moser : Q. But Mr. Moser told you to bear with him? A. That is right Q. And to go along with him? A. That was after he received his own machine. 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dolphin testified that Harden was inept and slow in mastering the technic of operating an engraving machine, and that his spoilage was excessive amounting to 10 percent whereas but 2 percent was recognized as permissible. No records were kept of spoilage and Dolphin had no better basis for his estimate of 10 per- cent than the amount of spoiled material he "found laid away." Moreover Dolphin was not able to give the value of material spoiled. Harden testified that no one criticized him for excessive spoilage, and that errors were made in the work "practically every day." His further testimony reads : As a matter of fact, whenever anything was spoiled, it was so natural that they said "Forget about it. Don't worry about it." They said, "The more you worry, the more mistakes you make " In order to eliminate further mistakes, you had to forget this one, the last one first, so you have to forget about those things. Those were very natural things. Harden further testified that his immediate superior, Dolphin, praised his work and "acknowledged that I turned out very nice work only it is slower." ' The undersigned notes that Moser did not include excessive spoilage among the matters about which Dolphin reported to him in discussing Harden's work. Moser's testimony was that Dolphin reported that Harden's "work wasn't satis- factory." When asked for Dolphin's specific complaints, Moser's answer reads as follows : Well, he told me the man can't set his own machine, I have to set the machine for him, and when I told him what to do he is always arguing about this and that, and he is doing the work improperly. Dolphin testified that Harden advanced to the degree that he was able to set up his own machine. Moss and Moser were the officials of the respondents responsible for Harden's lay off on May 29, 1944. Neither testified that excessive spoilage by Harden affected their decision. Both testified that in April 1944 when Harden requested his last increase in pay they agreed to discharge him as soon as work in the engraving department slackened. Under these circumstances the under- signed concludes and finds that the record does not support respondents' conten-, tion that excessive spoilage by Harden was a cause of his discharge. Testimony regarding the circumstances attending Harden's final increase is also directly in conflict. It is Harden's testimony that he first approached Dolphin on the subject of an increase, saying that he did not like to go over Dolphin's head in asking for a raise. Harden's testimony reads: "I said, I would like to get at least ten cents this time, but he [Dolphin] said, `I don't think you will get more than a nickel.' " Later, as Harden testified, he carried his request to Moss, who promised to grant the increase but stated that it might take some time "to straighten things out." After waiting some time, Harden again spoke to Moss about the matter and was told the raise was going through. Later Moss handed Harden a sure of money in fulfilliuent of this promise. Harden's testimony re- garding the incident reads : He [Moss] says "Here you are, Fred." He handed me an envelope., He said, "Here you are, Fred. Here is your raise I promised you. Just keep up the good work," and he patted me on the shoulder. Harden did not remember exactly the amount contained in the envelope 'hichW was in addition to the pay received on the regular pay days His best estimate was that it was "either $168 or 2.68, I am not sure, . . . something like that." Time cards in evidence show that Harden's last increase was effective in the HENRY MOSS & COMPANY 147 week ending April 20, 1944. The sum required to ante-date this increase by one week was $2.60 " Moss and Moser agreed in testifying that Harden's last raise was "strictly a hold up." Moss testified that Moser came to him telling of Harden' s request which he stated was timed to coincide with a great press of work in the engraving department. Moss' further testimony regarding the incident reads: Mr. Moser came to me and said, "What am I going to do with him? He wants an increase and he is not worth it. You want the jobs out and what can we do?" I said, "All right. give it to the guy. It is a hold up, it is not right. He is not desirable, and in view of the fact that he is not a good operator, when times are'slack, release him, dismiss him." Moser's testimony given immediately following that of Moss, agrees, except in the detail that Moser stated it was his suggestion, not Moss', that Harden be given the increase Moser testified that Harden asked for a 10-cent increase and was given but 5, and that Harden had then been in the engraving department "around four or five months" which he admitted was long enough to qualify an employee for a nickel raise. Moser's testimony relative to the "hold up" char- acter of the raise was mates sally NNeakened by his turther testimony that Harden, before the raise, was getting "somewhere around 85 or 90 cents an hour." An increase of 5 cents an hour added to Harden's wage of 70 cents would still leave his wage substantially below that level. As noted above, Harden was found to be a trustworthy witness (Moss' testimony is both inexact and exaggerated. The giving of a 5 cents an hot4r increase after three months service during war time shortage of manpower can hardly constitute a "hold up" nor give justification for discharge. Under these circumstances the undersigned accepts the detailed ersion of this increase given by Harden and rejects the accounts given by Moss and Moser insofar as they conflict with Harden's testimony regarding- the incident. There is similar conflict in the testimony relative to Harden's termination. Moser assumed responsibility for the actual discharge. He testified that in accord with his understanding with Moss and after learning that the pressure of work in the engraving department had decreased, he determined on May 29, 1944, to let Harden go. Moser's testimony as to what transpired reads : During the course of the day, I sent his card upstairs. I marked it terminated at five o'clock, and I sent his card upstairs to the paymaster's office, and had his pay made up, and also a release, and around 10 minutes of five, I called him into the office and I told him, "I am sorry, but I have to leave you go" and he says, "What is the matter?" I said, "You are asking me what is the matter? You know as well as I do. We haven't work enough to keep you moving and, secondly, your work has not been up to standard." And I gave him his two checks, had him sign the two cards and also gave him the envelope with the release in it. Harden's account reads as follows : Mr. Charley Moser carne over to sue, and he told me about five minutes before quitting time that, lie says "Fred, I am sorry to tell you this but I don't think I will have enough work for you I have to let you off." So I said to Mr. Moser "Why, I have some work unfinished yet." 13 In the preceding week ending April 13, 1944 , Harden worked 48 hours. The computa- tion then is 40 hours at 5 cents or $2.00, and 8 hours at 7'4 cents or 60 cents. 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 0 He says, "Well, we will have to finish that without you." I says, "Are you laying me off definitely or indefinitely?" He says, "Just for the time being until we find some more work for you." I said "Would you let me know in case you find some work for me so I can get back on the job?" He said "I certainly will." And that finished the conversation. Harden agreed that he collected his pay that day. He was not certain whether he received one check or two His testimony differed radically from that of Moser on the matter of a release. Harden testified that he never received a release from the respondents although about June 14, he telephoned to Moss ask- ing that he be given one. Moss, at the time, promised to send one by mail. Failing to receive this, Harden testified that he went to the War Manpower Commission, stating that the respondents had refused to give him a release and procured one. The testimony of Moser and Harden is in agreement that Harden returned to the plant after May 29 and asked Moser whether there was any work for him. Harden testified that Moser replied, "No, not yet, Fred, but I will let you know." Moser's account of the interview reads, "I believe he returned about two weeks after and asked if I had any work for him, I told him, 'I am sorry, I haven't."' As set forth above, Szerlip did not include Harden's name in the list of eligible voters delivered to Kearns on the evening of June 5. On the evening of June 6, Harden made a speech at a union meeting, the content of which has been here- inbefore discussed. It was Szerlip's testimony that he first learned of Harden's discharge when he proposed to call him in after receiving reports from employees concerning this speech. Manifestly this testimony is inconsistent with the fact that Szerlip had earlier omitted Harden's name from the eligibility list. Harden testified that he first learned that he had been discharged when Szerlip came to the polling place and demanded of Kearns that Harden be ousted as a union observer because he had been discharged. Uncontroverted testimony in the record establishes that there was a shortage of work in the engraving department about May 29. A night shift of two men was then discontinued and another employee on the day shift had been laid off. At the time of the hearing none of these employees had been recalled to the de- partment After consideration of the record and the demeanor of the witnesses testifying, the undersigned concludes and finds that Harden was temporarily laid off on May 29, 1944, and that such lay-off was based on business considerations. Harden had not joined the Union until February 1944. He attended union meetings and handed out application cards to fellow employees. He was selected, at a date not exactly established in the record but prior to his lay off on May 29, to serve as an observer for the Union in the Board election of June 7, 1944. On the evening of June 6 he made the speech at the union meeting which provoked Szerlip's reply on the day of the Board election. Moser testified that his action in laying off Harden was pursuant to the under- standing reached with Moss in April. His testimony that he discharged Harden on May 29, 1944, and gave him a release on that date signed by Moss is hardly consistent with his further testimony, elicited on cross-examination, that Harden later returned asking if he had work for him and was told, as Moser testified, "I am sorry I haven't." Moreover, Kearns gave uncontroverted testimony 64 to ' Kearns' testimony , given after reference to his file memorandum made at the time, reads as follows : Q Will you give your best recollection of what was said by you and Mr. Szerlip with respect to that occasion? HENRY MOSS & COMPANY 149 the effect that on June 6, he called Szerlip and inquired why Harden's name was not on the eligibility list. Szerlip told him Harden was laid off. On further inquiry by Kearns, Szerlip stated that the lay-off was not temporary. At this time Kearns told Szerlip the Union had informed him that Harden had not been given a release. In appraising the testimony of Moss and Moser relative to the raise Harden received effective in the week ending April 20, 1944, the undersigned has been influenced by the incident established in the undenied testimony of Schleenbecker that Moss gave him $3.00 in partial compensation for time lost when he had suffered injury by stepping on a nail. The detailed story in the testimony of Harden as to Moss giving him a similar sum to antedate his formal increase of April 20 by one week has thus an established precedent. Moreover, Moss, in the case of Harden as in that of Schleenbecker, was over-anxious in his testimony to attack Harden's work record. Moss' attack on Harden's work in the polishing department is refuted by Moser's testimony that he had no complaints on Harden's work "while he was employed in the polishing room." After considering the record as a whole and the demeanor of the witnesses concerned, the undersigned accepts the account given by Harden of incidents connected with his raise effec- tive in the week ending April 20, 1944, and of the additional sum given by Moss which antedated it 1 week, and rejects testimony by Moss in conflict therewith. Concluding findings The contradictory and conflicting nature of the testimony in this proceeding imposes on the undersigned the duty of resolving these conflicts. After con- sideration of the complete record and of the demeanor of the witnesses con- cerned, the undersigned concludes and finds that the respondents found Harden an acceptable employee and desired to retain his services until their good will toward him was alienated by Harden's union activities. In the closing days of December 1943, Moss made a direct appeal to Harden, through his wife, to induce him to return to the respondents' plant. Moss at this time arranged for Harden's transfer and granted him a raise. In February 1944, Harden joined the Union and became progressively prominent in its activities. Moss neverthe- less gave him another raise in April and antedated it 1 week by personally giving Harden a sum of money. Harden's lay-off on May 20, 1944, was based on slack work in the engraving department. On June 5, Szerlip omitted Harden's name from the list of employees eligible to vote in the election on June 7. On June 6, as stated above, he informed Kearns that Harden had been permanently discharged Harden had not on that date, as Kearns pointed out to Szerlip, been given the release which all employees received when discharged. The Board's decision in the representation pro- ceeding provided that employees temporarily laid off were to be included on the list of eligible voters. The undersigned finds in the omission of Harden's name an act by the respondents similar in intent to their delay in posting the official notices of election and in compiling the eligibility list. The purpose was plainly to interfere with plans for the election and to adversely affect the Union's pros- pect of success in the election. By June 5, it may fairly be inferred, the respond- ents knew of Harden's selection to act as observer for the Union at the election. That they possessed such knowledge before the election is shown by the other- A. I asked Mr. Szerlip why his name did not appear on the list, and he said he would call me back when he phoned me back he said the man was laid off. I said was it a temporary lay off, and he said no. I said the union informed me Harden had not received a release, and Mr. Szerlip said all people laid off receive releases. 0 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wise inexplicable attack by Szerlip on both Harden and Perito, the union observ- ers, in his June 7 speech before the election. The inference is further supported by the fact that Morgenstern immediately on the opening of the polls questioned Harden's right to serve as union observer Moreover Szerlip came at once to the polls to support Morgenstern 's protest when its rejection by Kearns was reported to him. The undersigned finds that Szerlip's action on June 5 constituted a dis- charge of Harden motivated by a desire to exclude Harden from participation in the election as a union observer On the evening of June 6, Harden made a speech at the union meeting in which he argued, inter alts, that there was need for union representation in the respondents' plants since wage, safety, and health conditions were in need of improvement. Nothing in the record indicates that Harden went beyond the limits of legitimate union activity. Szerlip received garbled accounts of this speech next morning Thereafter he assembled the employees at each plant and, after refuting Harden's supposed misstatements, attacked his efficiency as a work man and decried his ability to hold a job. The animus against Harden expressed by Szerlip to the employees assembled at each plant was directly aroused by Harden's legitimate union activities It found further expression when Szerlip went to the polling place and in the presence of a dozen employees loudly announced that Harden had been fired and that his continuance as a Union observer would render the election a farce The conclusion is inescapable that Hai den's union activities affected in substantial degree both the respondents' decision to discharge him and their later refusal to rehire him. The undersigned not'•s that while the engraving' department was overmanned on May 29, 1944, there was a continuing shortage of manpower in the respondents' plant. The polishing department, where Harden had been an efficient workman, hired a dozen employees after March 1943 Yet the respondents made no move to recall Harden. The discharge of Fred Harden by the respondents on June 5, 1944, is found to have been discriminatory, based on his union membership and activity By such action the respondents have discriminated in regard to his hire and tenure of employment: have discouraged membership in a labor union; and have inter- fered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act D Additional acts of interference, restraint, and coercion When the union started its organizational campaign in 1943, Szerlip came to Kirk and rlue.tionecl him regarding his membership Kfik answered that he had joined. Nothing further was said" About January 1944, Szerlip also questioned Bulin about the Union, asking if he intended to, join Bulin replied that he had done so. Szerlip thereupon said "something like" that Bulin was a big fool to join °G As noted above, Szerlip at the representation proceeding on April 13, 1944, evinced knowledge that both Kirk and Bulin were members of the Union at that time Sometime in January 1944, as Kirk testified, Moss calve to him in the shop and asked him not to attend a union meeting. Kirk agreed not to do so. Moss, thereupon, said, "You will go over and ask Howie I Schleenbecker] to do the same." Kruk said, "You approach Howie yourself" floss thereafter went to 65 These findings aie based on credited and uncontroverted testimony by Kirk. °' Bulm, called as a witness by the Board, was a very reluctant witness However, since lie testified to the above facts in unequivocal fashion and Szerlip did not deny the incident. his testimony is credited. HENRY MOSS & COMPANY 151 Schleenbecker and conversed with him. There is partial corroboration for this testimony by Kirk since Schleenbecker testiflad , as stated in detail above, that Moss came to him 'in January 1944, and asked what he intended to do about the Union. Moss did not specifically deny this teslimony by Kirk and Schleenbecker and it has been credited by the undersigned. The undersigned finds that by these acts and utterances of Szerlip and Moss, and by the course of conduct pursued by the respondents preceding and during the election conducted by the Board on June 7, 1944 , as set forth above, the respondents have interfered with, restrained , and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act 54 IV. TIIE EFFECT OF THE UNFAIR L\BOI: PRACTICES UPON COMMERCE It is found that the activities of tire respondents set forth in Section III, above, eccuiring in connection with the operations of,the respondents 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 dis- putes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondents have engaged in unfair labor practices the undersigned will recommend that they cease and desist therefrom and take certain affirmative actions found necessary in order to effectuate the policies of the Act. Since it has been found that acts and utterances of the respondents have so affected the Board election held on June 7, 1944, that it did not fairly reflect the untrammeled wishes of the respondents' employees, it will be recommended that this election be set aside. It has been found that the respondents discharged Howard Schleenbecker and Fred Harden and thereafter refused to reinstate them for the reason that they joined and assisted a labor organization and engaged in concerted activi- ties for the purposes of collective bargaining and other mutual aid and pro- tection It will be recommended that the respondents offer these employees immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges they may have. It will be further recommended that the respondents make them whole for any loss of pay they may have suffered by reason of respondents' discriminatory action, by payment to each of them of a sum of money equal to the amount he normally would have carried as wages from the date of his discriminatory discharge to the date of the respondents' offer of reinstatement, less his net earnings n during said period. 61 At the hearing, the Board further contended that certain utterances of Working Fore- man Dolphin were ascribable to the respondents and constituted interference, restraint or coercion. Dolphin was included in the appropriate unit under the Board's decision in the representation proceeding. He voted on June 7, 1943. On the whole record, the mmdei- signed finds that Dolphin's utterances were not ascribable to the respondents, but rather occurred in the legitimate exchange of opinions with his fellow workmen Accordingly. no merit is found in this contention by the Board 68 By "net earnings" Is meant earnings less expenses, such as for transportation, room, and board, incurred by an employee in connection with obtaining a oik and working else- where than for the respondent, which would not have been incuired but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company, 8 N L. R B. 440. Monies received for work performed upon Federal, State, county, municipal, or other work-relief projects sliall be considered as earn- ings. See Republic Steel Corporation v. N. L. R B , 311 U S 7. 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the basis of the foregoing findings of fact and upon the entire record In the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. International Metal Engravers Union is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Howard Schleenbecker and Fred Harden, thereby discouraging membership in a labor organization, the respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the undersigned recommends that the respondents, B. F. Moss, George Moss, Arthur Szerlip, and L. H. Szerlip, co-partners doing business under the trade name and style of Henry Moss & Company, and their officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in International Metal Engravers Union or any other labor organization by discriminating in regard to hire and tenure of employment or any terms or conditions of employment of their employees ; (b) In any other manner interfering with, restraining, or coercing their employees in the exercise of the right to self-organization, to form labor organ- izations, to join or assist International Metal Engravers Union or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining, or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2 Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : (a) Offer to Howard Schleenbecker and Fred Harden immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges; (b) Make whole these employees for any loss of pay they may have suffered by reason of respondents' discrimination against them by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages from the date of the respondents' discriminatory discharge to the date of the respondents' offer of reinstatement, less his net earnings during said period ; (c) Post at their plants in Brooklyn, New York, copies of the notice attached hereto marked "Appendix A." Copies of said notice to be furnished by the Regional Director of the Second Region shall, after being duly signed by the respondents' representative, be posted by the respondents immediately upon receipt thereof and maintained by them for sixty (60) consecutive days there- after in conspicuous places, including all places where notices to employees 19 See footnote 58, supra. HENRY MOSS & COMPANY 153 are customarily posted. Reasonable steps shall be taken by the respondents to insure that said notices are not altered, defaced, or covered by any other material; (d) File with the Regional Director for the Second Region on or before ten (10) days from the receipt of this Intermediate Report, a report in writing setting forth in detail the manner and form in which the respondents have complied with the foregoing recommendations. It is recommended that the election held by the Board on June 7, 1944, be set aside. It is further recommended that, unless on or before ten (10) days from the receipt of this Intermediate Report the respondents notify said Regional Director in writing that they will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondents to take the action aforesaid As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 3, as amended, effective July 12, 1944, any party or counsel for the Board may within fifteen (15) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions,or objections) as he relies upon, together with the original and four copies of a brief in support thereof. Immediately upon the filing of such state- ment of exceptions and/or brief, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. As further provided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of the order transferring the case to the Board. CHARLES E PERSONS, Trial Examiner. Dated May 28, 1945. APPENDIX A N. L. R. B. 577 (9-1-44) 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 Relations 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 organiza- tions, to join or assist -------------------- or any other labor organiza- tion, 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. We will offer to the employees named below immediate and full rein- statement 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 dis- crimination. Howard Schleenbecker Fred Harden 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 employee because of membership in or activity on behalf of any such labor organization. B. F. Moss, GEORGE Moss, ARTHUR SzERIaP and L. H SZFRaIP, co-partners, doing business under the trade name and style of HENRY Moss & COMPANY (Employer) Dated------------------------ By------------------- (Representative) (Title) NorE.-Any of the above-named employees presently serving in the armed forces of the United States will be offered full reinstatement upon application in accordance with the selective service act after discharge from the armed forces. This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.