Glass Fiber Moulding Co.

GLASS FIBER MOULDING COMPANY 383 4. The Respondent shall pay to the appropriate Federal and/or State agencies, to the credit of Bartoletta and the Union, a sum of money equal to that which would have been deposited to the credit of the Union and Bartoletta on account of social -security or other similar benefits during the above-mentioned period. Pen and Pencil Workers Union, 91 NLRB 883. 5. The Respondent shall make Bartoletta whole for any loss of wages which he would have earned as an employee of the Respondent from the date of the discontinuance of the checkweighman' s job in February 1952 to the date of the Respondent' s offer of reinstate- ment referred to in "2" above, less his net earnings during that period. 6. The Respondent shall cease and desist from discharging or preventing employment of Bartoletta or any other individual as union checkweighman , because he has engaged In union or concerted activity protected by the Act; from preventing the performance of the duties of such position; from refusing access to its property for such purpose ; and from refusing employees their choice of union checkweighman; or from engaging in any like or related acts. Upon the basis of the foregoing findings and conclusions and upon the entire record in the case, I make the following CONCLUSIONS OF LAW 1. Local Union No. 9769, United Mine Workers of America, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discharging John Bartoletta and refusing him access to its property to perform his duties as union chehkweighman , preventing the performance of those duties , and causing Bartoletta's loss of employment as union checkweighman , and depriving employees of their choice of union checkweighman , under the circumstances heretofore recited, the Respondent engaged in unfair labor practices within the meaning of Section 8 (a) (1) and 8 (a) (3) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication. ] GLASS FIBER MOULDING COMPANY AND AURCOLO MANU- FACTURING COMPANY and AMERICAN FEDERATION OF LABOR. Case No. 30 -CA-196. April 27, 1953 DECISION AND ORDER On September 10, 1952, Trial Examiner Herman Marx issued his Intermediate Report in the above-entitled proceeding, find- ing that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. He also set forth the applicable evidence and the reasons on which he based his dismissal from the bench, at the close of the General Counsel ' s case , of the allegations of the complaint that the Respondents had refused to bargain in vio- lation of Section 8 (a) (5) of the Act. Thereafter, the Respondents and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, 104 NLRB No. 58. 3 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and recommendations of the Trial Examiner, with the following additions and modifications. 1. We agree with the Trial Examiner's dismissal of the allegations of the complaint that the Respondents refused to bargain in violation of Section 8 (a) (5) of the Act. On September 12, 1951, the Union requested recognition,' and also filed a representation petition. The Respondents did not reply to the request for recognition, but met with the Union on September 21, 24, and 25. At these meetings, the Union demanded only that the Respondents agree to a consent elec- tion. The parties negotiated, and on September 25 the Re- spondents agreed to the Union's proposal fora consent election, thereby receding from its own counterproposal for a "stipu- lation form" election, in exchange for the Union's agreement to the Respondents' proposal that a local of the Union be placed on the ballot in the election.' Between September 25 and October 5, the date of the election, the Respondents, as we find herein, violated Section 8 (a) (1) of the Act, and discriminatorily discharged one of their employees. We have held that an employer unlawfully refuses to bargain if its insistence on a Board election as proof of the union's majority is motivated by a rejection of the collective-bargain- ing principle or by a desire to gain time within which to under- mine the union, and that unfair labor practices committed by the employer during the preelection period may be evidence of such motivation' We have even applied this principle in a case where the employer simply ignored the union's request for recognition.4 An essential element in these cases has been that the employer, either directly or indirectly, has compelled the union to go to an election, so that the employer may gain time within which to undermine the union. This essential ele- ment is absent in this case. Here the Respondents met with the Union shortly after receiving the Union's request for recogni- tion, and acceded to the Union's demand fora consent election, which was the only demand made by the Union. Under such circumstances, it cannot be said that the Respondents, despite the subsequent unfair labor practices committed by them, were seeking time within which to undermine the Union, so as to have unlawfully refused to bargains Contrary to the assertion of our dissenting colleagues, we are convinced that this deci- sion, which is confined to the particular facts of this case, will not discourage resort by unions to Board representation proceedings, nor will it encourage them to file unfair labor practice charges at the outset instead. 1 This request was received on the following day. 2 The local was completely established, except for obtaining a "federal charter" from the Union. SJoy Silk Mills, Inc. v. N. L. R. B., 185 F. 2d 732, enforcing as modified 85 NLRB 1263; 341 U. S. 914, cert. denied. 4Howell Chevrolet Company, 95 NLRB 410. SAccordingly, we find it unnecessary to, and do not, pass upon the Trial Examiner's con- clusion that there was no refusal to bargain for the additional reason that the effect of the agreement for a consent election, with its provision for placing the local of the Union on the ballot, was an abandonment by the Union of its prior demand for recognition. GLASS FIBER MOULDING COMPANY 385 We do not agree, however, with-the Trial Examiner's con- clusion that there was no refusal to bargain because a majority of the employees did not effectively designate the Union as their bargaining agent. The Trial Examiner bases this con- clusion on the fact that in the case of 18 employees, the only evidence of designation of the Union lies in authorization cards signed by them, and 16 of these employees did not insert the name of a bargaining agent in the space provided therefor on the cards.' However, there is printed vertically on either side of the cards the letters "A. F. of L.," and these letters are in boldface type approximately 4 times the size of the printed lines following them. In our opinion, these letters clearly indicate that the cards were intended to designate the "A. F. of L." as bargaining representative, and were so construed by the signers so as to render any further desig- nation of the "A. F. of L." superfluous. Moreover, at the time the cards were signed no other union was attempting to organize the Respondents' employees, and the cards were in the possession of the Union. In view of the foregoing, we believe that the 16 employees in question did effectively designate the Union as their bargaining representative, and accordingly that a majority of the employees did so designate the Union. 2. The Trial Examiner found that the Respondents violated Section 8 (a) (1) of the Act as a consequence, inter alia, of President Loerke's expressed preference for a company union, and his intimation that the way to secure an increase was by abandoning unionization. However, as pointed out by the Respondents, this conduct was not encompassed by the bill of particulars that the General Counsel furnished the Respondents as to the alleged violations of Section 8 (a) (1) on which the General Counsel intended to rely, and to which the Trial Examiner stated he would hold the General Counsel. Under such circumstances, these findings of the Trial Examiner were not appropriate, and we do not adopt them. ORDER U on 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 Glass Fiber Moulding Company and Aurcolo Manufacturing Company of Denver, Colorado, their officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in the American Federation of Labor, or any other labor organization, by discriminating in any manner in regard to the hire, tenure of employment, or any term or condition of employment, of their employees. (b) Threatening to increase the workload of their employees if they formed, joined, or assisted any labor organization. (c) Interrogating any of their employees concerning their voting intentions with respect to any election conducted by the 6 There are 23 designations relied on for a majority in a unit of 32 employees . The Trial Examiner found proper card designation and/or "background" evidence to support effective designation by the other 7 employees relied on for a majority. 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board; concerning their attendance at meetings of any labor organization ; whether they had been invited to attend such meetings or vote for officers of any such organization; whether they had voted at such meetings or otherwise parti- cipated in such organization; or concerning their reasons for forming, joining, or assisting a labor organization. (d) Requesting or requiring any of their employees to identify themselves as members or officers of any labor organization. (e) In any other manner interfering with, restraining, or coercing their employees in the exercise of their right to self- organization, to join or assist the American Federation of Labor, to form, join, or assist any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Offer to Harry H. Darr and Clara P. Ferrill, according to the terms and under the conditions set forth in section V of the Intermediate Report entitled "The remedy," immediate and full reinstatement to their respective former or sub- s cantially equivalent positions, without prejudice to their senior- ity and other rights and privileges, and jointly and severally make them whole in the manner prescribed in said section V. (b) Post at their plant in Denver, Colorado, copies of the notice attached hereto marked "Appendix A."' Copies of such notice, to be furnished by the Regional Director for the Seven- teenth Region, shall, after being duly signed by the Respondents' representative, be posted by the Respondents immediately upon receipt thereof and be maintained by them for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondents to insure that the said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Seventeenth Region in writing within ten (10) days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not herein found. Members Houston and Styles, dissenting in part: We cannot agree with that portion of our colleagues' deci- sion which upholds the Trial Examiner's dismissal during the hearing of the 8 (a) (5) allegation of the complaint on the ground that the General Counsel did not make out a prima 7 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." GLASS FIBER MOULDING COMPANY 387 facie case . Our colleagues reason that because the Respondents agreed to the Union's demand for a consent election and the . Union did not expressly renew its prior unanswered request for recognition, "it cannot be said that the Respondents, despite the subsequent unfair labor practices committed by them, were seeking time within which to undermine the Union, so as to have unlawfully refused to bargain." Thus, the mere fortuity that the Union advanced the consent-election proposal becomes for our colleagues the basis for absolving the Respondents of their unlawful efforts to liquidate the Union's majority so as to evade the statutory duty to bargain. With this startling proposition, the implications of which go far toward upsetting well-established Board doctrine approved by the courts, we cannot concur. Correctly stated, the fact that an employer declines to bar- gain but agrees to a consent election may, in proper circum- stances, indicate an acceptance of the principle of collective bargaining.I That is not the rule, however, where, as here, the Employer's unfair labor practices, by their character and tim- ing, demonstrate that in agreeing to a consent election, the Employer was motivated not by an honest doubt as to the Union's majority but. rather by adesire to gain time in which to undermine that majority and render the election a nullity.9 In these circumstances, it matters not whether the consent election is requested by the union or the employer. In either case, the Board has repeatedly held that an employer's reliance on a consent election or a petition filed by a union is no defense to a refusal to bargain. 10 It is therefore in the light of the applica- ble decisional law that we turn to the General Counsel's evidence. On September 12, 1951, the Union informed the Respondents by letter that it represented a majority of the 32 production and maintenance employees and requested a meeting "at the earliest possible time" to "enter into negotiations concerning 0Cf. for example, Roanoke Public Warehouse, 72 NLRB 1281, where the employer offered to join in a consent election which the union rejected and the unfair labor practices consisting of two antiunion remarks by supervisors antedated the request to bargain; Chamberlain Corpo- ration, 75 NLRB 1188, where the employer insisted on a Board certification and the unfair labor practices consisting of coercive statements by a supervisor antedated the request to bargain and the supervisor was reprimanded by the employer. In both cases the Board found no refusal to bargain. 9Joy Silk Mills, Inc., 85 NLRB 1263, enfd. as mod. 185 F. 2d 732 (C. A. D. C.), cert. den. 341 U. S. 914; N. L. R. B. v. Ken Rose Motors, Inc., 193 F. 2d 769 (C. A. 1); N. L. R. B. v. Inter -City Advertising Co , 190 F. 2d 420 (C. A. 4); N. L. R. B. v Everett Van Kleeck and Company, Inc., 189 F. 2d 516 (C. A. 2); Dismuke Tire and Rubber Company, Inc., 93 NLRB477. 10See, Inter-City Advertising Co., supr in which the Board and the court held that the fact that a petition has been filed by the union and the employer makes no reply thereto, furnishes no defense to the refusal to bargain by the employer in the face of concurrent un- fair labor practices . See also the remaining cases cited in\footnote 2. supra ; also The Cuffman Lumber Company, Inc., 82 NLRB 296, where the employer orally agreed to the union's sug- gestion for a consent election and then resorted to unfair labor practices; Louisville Con- tainer Corporation , 99 NLRB 81, where the employer failed to answer the union's bargaining request, committed unfair labor practices , and then agreed to a consent election; Rehrig- Pacific Company, 99 NLRB 163, where the employer asked the union for a Board election and subsequently agreed to a consent election but inthe interim committed unfair labor practices. 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wages, hours , and conditions."" On the same day the Union filed a petition. The Respondents never replied to the request for recognition but, on September 21, 24, and 25, met.with the Union and a Board field examiner. At these meetings the Union did not expressly renew its demand for bargaining but pro- posed a consent-election agreement and the Respondents countered with a "stip form" election. On September 25, the Respondents agreed to a consent election in exchange for the Union's agreement to the Respondents' proposal that the local union, which had been established at the plant but not yet chartered, be placed on the ballot instead of the parent organiza- tion." Between September 25 and October 3, the date of the election, the Respondents committed unfair labor practices. Thus, on September 27, a leader of the Union was discrimi- natorily discharged; on October 2, the Respondents' president assembled the employees and inquired of a number of individuals whether they had been invited to attend the Union's meeting and had voted for its officers and requested that employees "stand up and identify themselves" as officers of the Union; and on October 3, about 45 minutes before the election, the Re- spondents' president again assembled the employees and de- livered a speech in which he threatened to increase the em- ployees' workload in the event of unionization of the plant.'' We are unable to agree with the implicit finding of the majority that the Union abandoned its claim for recognition and a contract because it did not renew its request at the September meetings. It is clear from the sequence of events that the Union construed the Respondents' failure to reply as a rejection of its request for recognition and consequently endeavored to prove its majority by the most expeditious method available under the circumstances, i. e., a consent election. Thus, contrary to the view of our colleagues, it was the Respondents and not the Union who compelled resort to a Board election. Indeed, we should have thought that the failure of the Respondents to reply to the Union's bargaining request would detract from, rather than add to, the Respondents' good faith in agreeing to the consent election.14 That the Union did not emphasize the obvious by repeating its demand for bargain- ing, a demand which it never withdrew and, in any realistic appraisal of the events, implicitly continued in the seeking of a consent election, does not, in our opinion, throw the Union out of court. Clearly, in the light of the Respondents' unfair labor 11 The Union, in fact, represented amajority ofthe Respondents ' employees in an appropriate unit. 12 The majority styles the consent agreement as "negotiated." However, the recognition required by Section 9 (a) of the Act is not a bargaining matter and the Respondents were dutybound to reply to the Union's request for a consent election. Consolidated Frame Company, 91 NLRB 1295. isOn the same day a foreman interrogated an employee as to her voting intentions. 14Cf. Model Mill Company, Inc., 103 NLRB 1527; Drummond Implement Corporation, 102 NLRB 596; Ken Rose Motors, Inc., supra; Howell Chevrolet Company, 95 NLRB 410, enfd. 204 F. 2d 79 (C. A. 9). GLASS FIBER MOULDING COMPANY 389 practices which followed close upon the consent agreement, a restatement by the Union of its bargaining demand, would have been a futile act. Manifestly, the unlawful discharge of a union leader, the mass interrogation, the threat of economic reprisal made to assembled employees shortly before the election, stamp the Respondents' acquiescence in the consent agreement and their failure to reply to the Union's bargaining demand as but a sham behind which to dissipate the Union's majority and make a free election impossible. As the court held in the Joy Silk Mills case, Certainly it is not one of the purposes of the election provisions to supply an employer with a procedural device by which he may secure the time necessary to defeat efforts toward organization being made by a union. is In view of the foregoing, unlike our colleagues, we are unable to perceive in the current posture of the case that at any time material herein the Respondents entertained a good-faith doubt of the Union's majority. Furthermore, we are convinced that the decision of our colleagues will discourage resort by unions to Board repre- sentation proceedings in an effort to expedite proof of majority in the face of employer rejection of a request for voluntary recognition and will, instead, encourage them to file unfair labor practice charges at the outset. In this manner the major- ity decision stultifies free collective bargaining and imposes a wholely unwarranted burden on the Board's processes. Accordingly, we are of the opinion that the General Counsel has proved a prima facie case that the Respondents on and after September 13, 1952, refused to bargain with the Union. We would therefore remand this proceeding to the Trial Examiner for the purpose of conducting further hearing on the allegation of a violation of Section 8 (a) (5). t5Supra, at p. 741. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT discourage membership of our employees in the American Federation of Labor, or any other labor organization , by discriminating in any manner in regard to their hire , tenure of employment , or any term or condition of employment. WE WILL NOT threaten to increase the workload of our employees if they form, join , or assist any labor organiza- tion. 283230 0 - 54 - 26 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT interrogate any of our employees con- cerning their voting intentions in any election conducted by the Board; concerning their attendance at meetings of any labor organization; whether they had been invited to attend such meetings or vote for officers of any such organization; whether they had voted at such meetings or otherwise participated in any such organization; or concerning their reasons for forming, joining , or assisting a labor organiza- tion. WE WILL NOT request or require any of our employees to identify themselves as members or officers of any labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to join or assist the American Federation of Labor, to form, join, or assist any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bar- gaining or other mutual aid or protection, and to refrain from any or all such activities, except to the extent that such right may be affected by an agreement re- quiring membership in a labor organization as a con- dition of employment, as authorized by Section 8 (a) (3) of the Act. WE WILL offer to Harry H. Darr and Clara P. Ferrill immediate and full reinstatement to their respective former or substantially equivalent positions without prejudice to their seniority or other rights and privileges previously enjoyed, and jointly and severally make them whole for any loss of pay suffered as a result of the discrimination against them. All our employees are free to become or remain, or to re- frain from becoming or remaining, members of any labor organization except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act. Glass Fiber Moulding Company, Employer. By ... . .. ................. .... .............. ... .. . . .. (Representative ) (Title) Aurcolo Manufacturing Company, Employer. Dated . ............... By.................................................... (Representative) (Title) This notice must remain posted for 60 days from the date hereof , and must not be altered , defaced , or covered by any other material. GLASS FIBER MOULDING COMPANY Intermediate Report and Recommended Order STATEMENT OF THE CASE 391 On September 13, 1951, the American Federation of Labor ( referred to herein as the A. F. of L.) filed a charge with the National Labor Relations Board (also designated below as the Board). Various amendments to the charge were thereafter filed by the A. F. of L. Based upon the charge and amendments thereto, the General Counsel of the Board, on March 21, 1952, issued a complaint alleging that Glass Fiber Moulding Company and Aurcolo Manufacturing Company,' herein called the Respondents , 2 had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of the National Labor Relations Act (61 Stat. 136-163), referred to herein as the Act . A copy of the charge has been duly served upon Glass Fiber . Both Respondents have been duly served with copies of the amendments to the charge, and of the complaint. The complaint , in material substance , alleges that the Respondents are engaged in inter- state commerce within the meaning of the Act ; that both concerns engage in an "integrated" manufacturing enterprise , that the A. F. of L . was on September 13, 1951 , and has been since that date the exclusive , collective-bargaining representative of an appropriate unit of persons employed by the Respondents , that , although requested to do so by the A. F. of L., the Respondents , in violation of Section 8 (a) (1) and 8 (a) (5) of the Act, have refused to bargain collectively with the A. F. of L. as the representative of the said unit, that the Respondents violated Section 8 (a) (1) and 8 (a) (3) by discriminatorily discharging an employee , Harry H. Darr , on September 26, 1951 , and another named Clara P Ferrill on November 5, 1951, because the two employees "had joined or assisted" the A. F. of L or had exercised other rights guaranteed to them by the Act ; and that the Respondents , also in violation of Section 8 (a) (1), "have expressed disapproval of the (A. F. of L) have interrogated their employees concerning their union affiliations , (and) have urged , persuaded , threatened , and warned their employees to refrain from assisting, becoming members of, or remaining members of the (A. F. of L )." The Respondents filed a joint answer in which they admit the jurisdictional averments of the complaint applicable to Glass Fiber Moulding Company, and that Darr was discharged, but deny the remaining allegations. The answer also affirmatively alleges that on and after Sep- tember 25, 1952, the A. F. of L "elected not to and has declined to act as collective bar- gaining representative" of the Respondents' employees ; that the A. F. of L: is "ineligible" to represent the employees ; that the sole subject of negotiations between the A. F. of L and the Respondents was the holding of a consent election , that an agreement was reached for such an election and provided that the A . F. of L. should not appear on the ballot; that the election was held and its results are "final"; and that the A. F. of L. "has ratified , approved and adopted the election and all prior and subsequent proceedings affecting the election " Pursuant to notice duly served upon all parties , a hearing was held before me, as duly designated Trial Examiner , at Denver , Colorado , on April 15 , 16, and 17, 1952.9 The General Counsel and the Respondents were represented by counsel , and the A. F. of L by one of its representatives . All parties participtated in the hearing and were afforded a full opportunity to be heard, examine and cross -examine witnesses , adduce evidence, submit oral argument, and file briefs. Before any testimony was presented , the Respondents moved to dismiss paragraph 13 of the complaint (allegations of interference, restraint , and coercion) as "vague, unintelligible , and uncertain," or in the alternative for a bill of particulars.4 The motion to dismiss was denied , but with respect to much of the allegations of paragraph 13, the General Counsel was directed to furnish the Respondents with a bill of particulars which need not be detailed here. The General Counsel complied with the order . The Respondents then moved again to dismiss paragraph 13 as particularized by the bill. The motion was denied. The Respondents moved to segregate all witnesses "other than the parties and their representatives ." The motion was granted with the exception of the two alleged dischargees. i The pleadings have been amended to substitute the name "Aurcolo Manufacturing Company" for "Arcolo Manufacturing Company" wherever the latter name appears. 2 The Respondents will also be referred to respectively as Glass Fiber and Aurcolo. 3The transcript contains a substantial number of errors . Among them are references to the Trial Examiner as "Denious " (the name of Respondents ' counsel). As the significant aspects of the evidence, in the light of the whole record , are not affected by the errors, I deem it unnecessary to enter an order correcting the record. 4 Actually, the alternative portion of the motion was that "the General Counsel be required to amend" the relevant paragraph to set forth the Respondents ' alleged "acts or omissions." I construed that portion of the motion as a demand for a bill of particulars. 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondents moved to dismiss all of the complaint , as well as particular portions thereof, at the close of the General Counsel's case-in-chief. The allegations that the Respondents refused to bargain were dismissed . The motion was denied in all other respects . For reasons which will appear , additional reference to the dismissal will be made below . After the close of all the evidence, the Respondents moved to dismiss the remaining allegations of the complaint. Decision was reserved on the motion . The findings of fact and conclusions of law set forth below in sections III and V. respectively , dispose of the motion . The parties waived oral argument upon the evidence. The General Counsel and the Respondents have filed briefs which have been read and considered . The A. F. of L. has not filed a brief. In his brief, the General Counsels urges that "the record (be) reopened for completion of this portion of the case" (the allegations that the Respondents refused to bargain). What the General Counsel apparently seeks is an order vacating the dismissal on the ground that the ruling was erroneous. I have thus construed the General Counsel' s request as a motion to vacate the dismissal. So construed , the motion is denied for reasons which will appear below. The General Counsel' s brief also requests " specific findings" with respect to "the effect" of certain evidence upon which the dismissal was based . I asume that what the General Counsel seeks by his request for "specific findings " are not findings of fact, but rather a statement of the legal reasons or conclusions underlying the dismissal . The basis for, the ruling were stated , at least in substantial degree, at the hearing and are reflected in the record , and it would appear that no restatement is essential . However, as the ruling was made extemporaneously and' is interwoven with an extended discussion with counsel, I think that a restatement here will facilitate an understanding of the reasons for dismissal and any review of the ruling the parties may seek . To that end , some summary of the ap- plicable evidence adduced during the General Counsel 's case-in-chief is appropriate as a preface to a restatement of the conclusions supporting the ruling. A summary of pertinent evidence presented during the General Counsel ' s case-in-chief follows. The Respondents are corporate manufacturing enterprises. They are housed in adjacent portions of the same building , have common officers and stockholders , and their operations are directed by the person who is president of both corporations . As will appear in findings of fact to be made elsewhere in this report, Aurcolo's operations have primarily served, and been ancillary to. the business and production processes of Glass Fiber. On September 13, 1951 . Glass Fiber received a letter from John W. Tucker, a field representative of the Colorado State Federation of Labor (referred to below as the State Federation), who also functions as an organizer for the A. F. of L., with which the State Federation is affiliated . The letter, dated September 12, 1951, written on the stationery of the State Federation , signed by Tucker as "Field Representative," and addressed to Glass Fiber , states that the A. F. of L. represents "over twenty -five of your employees" and requests a meeting "at the earliest possible time" in order to "enter into negotiations concerning wages, hours , and conditions." At the time of the bargaining request , there were 27 production and maintenance em- ployees on the payroll of Glass Fiber and 5 on that of Aurcolo . The A. F. of L.'s claim of representation rests upon 23 'authorization cards signed by production and maintenance employees , 22 of whom were employed in Glass Fiber' s operations , and 1 in those of Aurcolo.6 One side of each authorization card is in the form of a post card addressed in print to the "Colorado State Federation of Labor , 312 Insurance Building , Denver, Colorado." The reverse side of the card contains a printed form of which the following is a reproduction: 4References below to the General Counsel include the attorney who appeared for him at the hearing. 6 The General Counsel contends that a unit appropriate for the purposes of collective bar- gaining, within the meaning of Section 9 (b) of the Act, consists of "all production and main- tenance employees employed by the Respondents , excluding office and clerical employees, salespeople, and supervisors, as defined in the Act:" The Respondents ' position, at least by implication, appears to be that the employees of the 2 companies should not be included in 1 unit. The Respondents' claim runs counter to an agreement for a consent election which they signed on September 25, 1951, in Case No. 30 -RC-661 . However, as the collective-bar- gaining allegations were dismissed at the close of the General Counsel's case-in-chief, and as the Respondents thus had no occasion to adduce any evidence on the question , I deem it unnecessary in the present posture of the record to make findings with respect to the appro- priate unit. GLASS FIBER MOULDING COMPANY 393 Authorization for a Representation and a Union Shop Election Under the National Labor Relations Act and/or Colorado Labor Laws I, the undersigned , employee of A. A. Company F. F. of Address of Company of L. L. authorize the to represent me for collective bargaining and for the purpose of a union shop referendum as provided for by the National Labor Relations Act as amended , or Colorado Labor Laws, whichever may have jurisdiction. This authorization supersedes any similar authority previously given to any person or organization . It is understood that I am not obligated until a majority has signed authorizations. My Signature My Address Phone Kind of Work Date In 4 of the signed cards , the name "A. F. of L." Is written in the blank space following the words "authorize the." One contains the name in the line above the phrase . There is no insertion of the name of a bargaining agent in any of the remaining 18 cards. On September 12, 1951 , the day Tucker mailed the letter to Glass Fiber , he filed a petition on behalf of the A. F. of L. with the Board's Denver office, seeking certification of the A. F. of L. as the exclusive collective -bargaining representative of Glass Fiber ' s production and maintenance employees . The initial charge in this proceeding was filed by Tucker on the following day. On September 25, 1951 , Tucker, on behalf of an organization known as the "Fishing Rod and Tackle Workers Local Union" (also referred to below as the Local), and Dayton Denious , an attorney representing the Respondents, entered into an agreement for a consent election to be held on October 5,1951 . The agreement was the culmination of a series of three meetings held at the Board's Denver office on or about September 21, t and on September 24 and 25, and attended by Tucker, Denious, and F. T. Frisbie , a field examiner employed on the Board' s Denver staff. The evidence does not establish upon whose initiative the meetings were arranged , a although Tucker' s testimony suggests that the arrangements for the first meeting were made after Denious "got In touch" with him " through" Frisbie. Tucker was the only witness to describe the meetings . His relevant testimony is somewhat sketchy , has a conclusional character at points , and does not clearly establish at which of the three meetings some of the matters touched upon were discussed . It is clear , however, that the basic subject of discussion was the holding of an election to determine the issue of representation, and that the conversations turned upon the type of election to be held and the name of the labor organization to be placed upon the ballot . Tucker was eager "to go to an immediate election," and it is apparent that he pressed for one, to that end proposing at the first meeting that Denious consent to an election (presumably one held pursuant to Section 102.54 (a) of the Board's Rules and Regulations , under which the Regional Director's rulings upon the results would be final) Denious expressed a preference for the holding of a consent '' Tucker estimated, with some uncertainty, that the first meeting was held about 2 or 2-1/2 weeks after the representation petition was filed . However, other and more definite testimony he gave is to the effect that it was held about 2 or 3 days (either on September 21 or 22) before the consent-election agreement was signed . As September 22 fell on a Saturday, a day on which the Board's office is not open for official business , it is probable that the meeting was held on September 21, if not earlier. 8 At one point Tucker testified that he urged the Board's Denver office to "set up a meeting"; at another place he agreed that the meeting was "not initiated " by him. 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD election pursuant to the terms of a "stipulation form," under which finality of determination would rest with the Board (presumably under Section 102.54 (b) of the Rules and Regu- lations).9 At some unspecified points during the first meeting, Denious " stated that the A. F. of L. wasn't a labor organization as such ," and Tucker informed Denious that the organized employees had met and elected officers , and had resolved to adopt the name " Fishing Rod and Tackle Workers Union," and that he "intended to get a federal charter" from the A. F. of L. for the group. 10 Also, at the first meeting, Frisbie raised the point that the Board would not hold an election unless the A. F. of L. filed a waiver of its right to use the alle- gations of the charge as a basis for objection to the results of the election. No agreement was reached at the first meeting with respect to an election , and Tucker's testimony suggests that the meeting was adjourned because he "had to take time out" to determine whether a waiver would be filed. During the meetings , "the company (presumably Glass Fiber) made it clear (through Denious) that they would rather have a local union ... certified ... than the A. F. of L." There was also some discussion concerning the obligation of the Local, if a representation petition were filed in its name, to comply with the filing requirements of Section 9 (f), (g), and (h) of the Act. The final upshot of the negotiations was that Denious receded from his proposal for an election under the "stipulation form" and, on behalf of both Glass Fiber and Aurcolo, agreed, on September 25, to a consent election to be held on October 5, under the provisions of Section 102.54 (a), in exchange for an agreement by Tucker that the name of the Local be placed on the ballot in place of the A. F. of L. The form of consent agreement signed by Tucker and Denious carries out the terms to which they had agreed . Tucker filed a waiver of the type described above on September 24. On September 26, Tucker filed an amended representation petition . The effect of the amend- ment was to add Aurcolo as an employer , to delete the name of the A. F. of L. as the petition- ing labor organization, and to substitute therefor the name of the Local. The Respondents did not suggest "in any way" that the amended petition be filed. As set out in findings later in this report , between the date of the execution of the agree- ment and the date of the election , the Respondents committed certain unfair labor practices. These consisted of the discriminatory discharge of Harry H . Darr , and of unlawful state- ments to, and interrogation of, employees. The election was held as scheduled , and the Local lost . On October 12, 1951, the Local filed objections to the results of the election with the Regional Director of the Seventeenth Region of the Board . In a report on the objections , dated March 11, 1952, the Regional Director set the election aside on the ground that his investigation had disclosed that prior to the election, the Respondents had engaged in certain conduct raising "substantial and ma- terial issues with respect to the election." What emerges from the foregoing summary is that the evidence adduced during the General Counsel's case-in-chief was insufficient to establish (1) that the Respondents refused to bargain with the A. F. of L.; and (2) that a majority of the claimed bargaining unit effectively designated the A. F. of L. as their bargaining representative. An analysis of these coh- clusions follows. 11 1. With respect to the first ground for dismissal stated above, it may be noted initially that this is not a case where a refusal to bargain may be inferred from a failure to answer a bargaining demand . The evidence presented will not support a finding that the Respondents 9It is not clear whether Denious made this proposal at the first or a later meeting. The general context of Tucker's testimony suggests that it was probably made at the first meeting. 10 A group of the employees (the record does not specify how many) held a meeting on September 15, 1951, elected officers, and decided upon the name of the Local "for our union" (see testimony of Clara P. Ferrill). 11 The question also arises whether the bargaining demand upon Glass Fiber effectively served as a demand upon Aurcolo. The General Counsel contends that the request was suffi- cient to include both Companies as the concerns are an "integrated " enterprise, and he relies for support upon The Red Rock Company, 84 NLR13 521. The Court of Appeals for the Fifth Circuit denied enforcement (187 F, 2d 76) with respect to one of the companies there involved because the employees affected were not on its payroll. Without passing on the matter, there may be a possible factual distinction between the Red Rock case and this one, since here it affirmatively appears that Tucker was not aware of the existence of Aurcolo at the time of the ba the ga r request, and it may thus be contended that he could not have in- tended his letter as a demand upon Aurcolo. I deem it unnecessary to pass on the question since the grounds for dismissal described in the body of this report are, in my judgment, ample to support the ruling made. The question of the joint responsibility of the Respondents for the violations found will be considered later. GLASS FIBER MOULDING COMPANY 395 failed to respond to Tucker's letter. Whether the meetings between Tucker and Denious were the product of Tucker' s letter or the filing of the representation petition, or of both, cannot be known, for the record is silent on the question. On that score, the important fact is that the parties met within 8 or 9 days after the bargaining request reached Glass Fiber. The Respondents are not chargeable with the fact that the negotiations did not deal with conditions of employment . The A. F. of L. never advanced proposals on that score, and it is plain from the record that what Tucker was intent on negotiating at the meeting was an agreement for a consent election. True, what Tucker proposed was an election with the A. F. of L. on the ballot and what resulted was an agreement to substitute the Local , but that does not alter the fact that the parties met soon after the bargaining request , negotiated with respect to the only subject advanced by Tucker, as well as on counterproposals made by Denious, and quickly reached an agreement , although it did not contain all that Tucker sought . Thus the evidence will not support a conclusion that the Respondents failed to meet and negotiate with the A. F. of L. reasonably soon after the bargaining demand. The General Counsel urged at the hearing, and implements the position in his brief with citation of cases , 1tthat the Respondents proposed the substitution of the Local as ameans of using the Board's election machinery in order "to gain time in which to dissipate the union's majority." The cases cited are inapposite. They deal with situations where an employer, having no reason to doubt the existence of a majority , raises a question of representation and in effect compels the union to use the Board's election machinery , as a result of which the employer gains time within which to dissipate the union ' s majority. The basic difficulty with the General Counsel' s position is precisely that the Respondents raised no question concerning the A. F. of L.'s majority. It was Tucker who projected the question of representation into the negotiations by pressing for an election. The election was an outgrowth of his proposal, and no greater time was consumed in holding it than if the A. F. of L. had been on the ballot. The claim is also advanced by the General Counsel that the Respondents ' proposal that the Local appear on the ballot was made in " bad faith" and was the product of a design to use the Board's procedures as a means of diluting the organizational strength in the plant through unfair labor practices and that thus the Respondents' whole course of conduct constituted a refusal to bargain. it may be pointed out in that regard that the Local was for all practical, if not legal, purposes the alter ego of the A. F. of L. organization at the plant ; that it was already in existence as a labor organization , although unchartered, at the time of the first Tucker-Denious meeting ; that Tucker informed Denious of its existence at that meeting, and of his intention to secure a charter for it ; and that it was in that setting that Denious made his proposal, ii It is true, as will be found below , that the unfair labor practices which followed the consent-election agreement , consisted in part of interrogation of employees by the Re- spondents' president as to whether they had had an opportunity to vote , and had voted , for the officers of the organizational group at the plant , and of a request by him that the officers of the group identify themselves . However , I am unconvinced that the purpose of the Respondents in proposing the substitution was toplaceitselfin a position to focus its unfair labor practices on the Local, as such, rather than on unionization of the plant in general . In cases in which an employer in bad faith compels resort to an election in order to gain time within which to commit unfair labor practices in order to dissipate a majority, there is a clear correlation between his maneuver to have the Board's procedures invoked and the unlawful conduct used to thwart the election machinery. I can perceive no such correlation in the light of the evidence "Joy Silk Mills v. N. L. R. B., 185 F. 2d 732 (C. A. D. C.), and M. H. Davidson Co., 94 NLRB 142. 13 The General Counsel asserts in his brief that the Respondents insisted on the "estab- lishment" of the Local. At one point, Tucker testified that it was not his "original intention" "to establish" the Local and that it was established "more or less at the insistence of Mr. Denious." Tucker also testified, in response to a leading and suggestive question, that the Local was established "to solve Mr. Denious' objection to bargaining with the A. F. of L." Such testimony concerning the establishment of the Local is inconsistent with Tucker's admitted statements to Denious at the first meeting. Moreover , Clara P. Ferrill, former president of the Local who was produced as a witness by the General Counsel, testified credibly that the Local elected officers and selected its name on September 15, 1951. Thus the actual status of the Local was that it was in existence as a labor organization, even though unchartered, prior to the negotiations . The mere fact that it did not secure its charter from the A. F. of L. until after Tucker and Denious reached an agreement does not alter that conclusion. In the light of the evidence, I can accord no substantial weight to the testi- mony that the Local was established at the "insistence" of Denious or to an answer to a leading question that it was established "to solve Mr. Denious ' objection to bargaining with the A. F. of L." 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the Respondents raised no question of a majority; did not initiate the proposal that an election be held; gained no time to dissipate the union's majority; and proposed a substitution on the ballot of an organization which had been organized with the assistance , or under the aegis, of the A. F. of L., and to which the latter intended to issue a charter , according to what Tucker told Denious. Finally, one other basic circumstance prevents a conclusion that the Respondents refused to bargain. The effect of the agreement , with its provision for the placing of the Local on the ballot ;u and of the filing of the amended representation petition , was an abandonment by the A. F. of L. of its prior demand for recognition. 15 That conclusion is not altered by the fact that the Local was substantially the alter ego of the A. F. of L. The test of the view that the A. F. of L. abandoned its claim to recognition Is that had the Local won the election, the Respondents would have been legally obligated to recognize and bargain with the Local and not the A. F. of L. I think that it would be inappropriate to read into Tucker's agreement to substitute the Local and the amendment of the petition an implied condition that the A. F. of L.'s demand for recognition should be considered as withdrawn only if the Respondents refrained from committing the unfair labor practices in which they subsequently en- gaged .16 What the General Counsel is in effect urging is that the A. F. of L. be permitted to recant what was in substance a withdrawal of its bargaining demand. This is not a case in which, upon nullification of an election because of an employer 's conduct, the Board ap- propriately accepts other evidence of representation and requires an employer to bargain upon a preexisting request by a union . In this proceeding, there is no longer a bargaining demand in existence upon which a bargaining order may be predicated . A direction to the Respondents to bargain would mean that the Board would have to ignore the adandonment of the A. F. of L.' s request for recognition and hold that it is still in existence, notwithstanding the fact that it was voluntarily abandoned . In my judgment, it would be inappropriate to permit the A. F. of L. to recant. The reasons set out above require the conclusion that the General Counsel failed to es- tablish prima facie evidence that the Respondents refused to bargain. 2. There is ufficient evidence that a majority of the employees effectively designated the A. F. of L. as their bargaining agent . Some initial points should be made clear in that regard . First, I am fully mindful that in appraising the cards one must do so with a sense of Industrial realities . The people who signed them are not lawyers and it may be assumed that they are unaware of legal niceties or the refinements of the law of agency and of industrial relations. Nevertheless an essential ingredient of the General Counsel's case is that he establish an authorization by the majority of the employees in the unit of the A. F. of L. to represent them . If that ingredient is missing, whether for hypertechnical reasons or other- wise, I am under an obligation to dismiss the relevant portions of the complaint. Moral convictions based on speculation concerning the employees' intentions may not be substituted for a judgment based on evidence. Second, there is much talk in the record of representation of the employees by the A. F. of L., and this may leave the impression that there Is sub- stantial evidence beyond the four corners of all the cards to establish the claim of repre- sentation.' Careful scrutiny of the record establishes that this is not so. Were there a back- ground to the cards of evidence of meetings or other activities in a context from which it could be inferred that a sufficient number of identified employees knew that the A. F. of L. purported to represent them or participated in its activities, the cards could be construed against such a background and an inference of representation could perhaps be drawn from 14At the hearing, Tucker made the conclusional statement that he was "forced" to sub- stitute the Local on the ballot. He is an experienced organizer and he was not "forced" to do anything. The parties met, negotiated, made concessions, and freely reached an agreement. 151t is not my intention to hold that where a union files a representation petition after a bargaining demand, it thereby waives its right to insist that the employer bargain. The conclusion that the amended petition was part of a course of conduct constituting an aban- donment of the bargaining demand is based on the particular facts of this proceeding. i6It may be noted that the consent- election agreement was reached in the face of the fact that the charge in this proceeding had already been filed. The filing of the waiver does not mean, of course, that it affscted subsequent unfair labor practices . But it does indicate that Tucker, who represented both the A. F. of L. and the Local, was not deterred from a course of conduct amounting to an abandonment of the A. F. of L .'s demand for recognition by the fact that, in his judgment, the Respondents were capable of an attempt to defeat unionization through unfair labor practices . There is some intimation in his testimony that he visualized the possibility of other unfair labor practices than those alleged in the charge, because he testified that he sought an early election because of his familiarity "with tactics that are sometimes used to break a union." GLASS FIBER MOULDING COMPANY 397 the whole context of the evidence . However, there is insufficient evidence of such a back- ground . The sum of such background evidence is that 5 employees , of whom only Ferrill is identified , met with Tucker on September 8; that Ferrill and 3 other employees, Darr, Carpenter , and Hansen , had a meeting with Tucker at Darr ' s home on September 10 (ac- cording to Tucker this was his first meeting with the employees ; Ferrill testified to the September 8 meeting); that at that meeting , Tucker gave Darr some blank authorization cards which he thereafter took to the plant and distributed "among the few of them , the men"; that a meeting was held on the following night (from the context of the whole record it appears that Tucker , Ferrill , and Darr attended , but there is no evidence that anyone else did); that there was a meeting at Tucker ' s office on September 15 at which those in attendance (unidentified in the record except Ferrill) organized the Local , and that Mary C. Antolini, an employee , was an officer of the Local . In addition to their activities , Darr , Hansen, and Antolini inserted the name of the A. F. of L in the cards as their bargaining agent , and with the background evidence of their organizational activities and meetings with Tucker, the A. F. of L.'s representative , give support to a finding that they effectively designated the A. F. of L. as their bargaining representative . But with respect to the other 18 signatories, the record is barren of any evidence that they attended any meetings , participated in any other organizational activities , or did anything else except sign the cards . Nor is there any evidence of what passed (except a card) between any person or persons who distributed the cards and any of the 18 signatories , i7 As 2 of these cards contain a designation of the A. F. of L. they are not in question , but with respect to the remaining 16, the evidence of represen- tation consists solely of the cards , and the General Counsel' s claim that their signatories designated the A. F. of L. to represent them must stand or fall on the effect to be given to the 16 cards, which constitute a majority of those in evidence. The name and address of the State Federation on the front portion of each card constitute no part of the reverse or authorization side . The printed material on the front is plainly designed to serve as a mailing address . The cards were not in fact mailed , and there is no evidence that the 16 signatories in question were aware of the printed name and address, knew of the connection between the State Federation and the A . F. of L., or in any way in- tended to constitute the State Federation their bargaining agent With respect to the 16 cards , if an inference of authorization may be drawn , it must be based upon the printed initials "A. F. of L." appearing on the left and right of the authorization side of the cards. I am unable to construe the initials as part of a context of authorization in- ferred from the card as a whole . They are not clothed with any language of authorization and they apparently were not designed for that purpose , since a blank line is provided for the conferral of authority and may not be regarded as surplusage. Moreover, although the initials "A. F. of L." are widely understood to represent the name of the American Federa- tion of Labor and have received considerable publicity as such , I am unable to 'speculate what meaning any given signatory attached to the initials . It is in this area that evidence of contact by a given signatory with the A. F. of L., through meetings or otherwise, would have particular force and aid a construction that the signatory , in a context of such association or activity, designed his signature as a specific conferral of authority upon a labor organization known to him as the A. F. of L., or upon one of its affiliates is 17 Compare Northwestern Cabinet Company, 38 NLRB 357, 366-367, where the Board made a finding of authorization upon the basis of background evidence that card signatories were told that they were applying for membership in an international union belonging to the American Federation of Labor, although they had signed cards applying for membership in a federal local chartered by the American Federation of Labor. Significantly, the Board stressed the indicated background evidence, notwithstanding the fact that the local advanced no claim of representation and had some loose, although unaffiliated, association with the international. ilPanther-Panco Rubber Co., 11 NLRB 1261, may be distinguished on its particular facts, since the Board entertained doubts of the accuracy of testimony bearing on the genuineness of certain signatures and the reason why these and others were not on a signature line intended for them. However, it is noteworthy that a question was raised whether signatures appearing on a blank line marked "Name" and not upon one designated "Signature of Ap- plicant" were effective as a conferral of authority. The Board declined to accept such cards as authorizations in the absence of credible evidence that the names appearing in the blank line marked "Name" were both genuine and intended as a signature . The question of the genuineness of the signatures is in no way involved in this proceeding, but the Panther- Panco case has some relevant application to the fact that there is no evidence in this case to indicate that the initials "A. F. of L ." were intended to be used by the 16 signatories as a designation in place of the blank authorization line. 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The case of Cummer -Graham Co., 90 NLRB 722 , upon which the General Counsel relies, is clearly distinguishable. There the authorization line contained the printed initials "C.LO." with space in front of the initials apparently intended for the insertion of an affiliate of the C.I.O. Some of the employees inserted an approximation of the name of an international union affiliated with the C. LO. in front of the printed initials ; others made no insertion, so that the authorization line contained only the designation "C.LO." Upon a claim of representation by the international union, the Board, under well-established doctrine , held that the designation of the C. LO. was sufficient to include a union affiliated with it . That principle is in no way involved here, for the point of the matter is that the authorization line in the 16 cards in question contains no designation of any kind. Undoubtedly , each of the 16 signatories intended to confer authority upon some person or organization , but I am unable to infer an effective conferral of authority upon the American Federation of Labor from the mere fact that the initials "A. F. of L." appear along the sides of the cards , even when viewed within the context of all the language on the cards, in the absence of extraneous evidence establishing an intention that the printed initials were to serve as the designation of a bargaining agent . Moreover , I can draw no such inference from the mere possession of the cards by the American Federation of Labor , in the absence of proof that the employees intended to confer , and in fact conferred , authority upon that organi- zation.19 Such proof is lacking with respect to the 16 cards in question , and the allegations of refusal by the Respondents to bargain thus must fail. Turning to the remaining issues in this proceeding , upon the entire record in the case, and from my observation of the witnesses , I make the following: FINDINGS OF FACT L THE BUSINESS OF THE RESPONDENTS Glass Fiber Moulding Company is a Missouri corporation and is authorized to transact business in Colorado. Aurcolo Manufacturing Company is a Colorado corporation . Glass Fiber manufactures and sells fishing rods . Aurcolo produces the handles used in the rods and sells them to Glass Fiber. Both companies are housed in the same building , which displays Glass Fiber' s name but not Aurcolo' s, have common officers and stockholders , share clerical facilities , although separate books and records are maintained for the concerns , and their operations are under the active management and direction of Arthur W. Loerke , the president of both firms. Glass Fiber employs approximately 30 persons , and Aurcolo's have not exceeded 5 in number. One or two employees have been transferred from the payroll of one of the companies to that of the other . The labor-relations policies of both Respondents are controlled in common by Loerke . Employees of both firms have been assembled at the same meetings for speeches by him on the subject of the Respondents ' labor - relations policies and the com- panies' attitude toward unions . The consent -election agreement which the Respondents signed on September 25, 1951 , provides for a single bargaining unit of their production and main- tenance employees. A substantial volume of raw materials (to an extent not specified in the record) is sold and shipped to the Respondents from points outside the State of Colorado . Glass Fiber sells goods it produces to another firm in Colorado. Such sales annually exceed a value of $100,000. Glass Fiber' s customer in turn annually ships more than $50,000 worth of such goods to points outside of the State of Colorado. Aurcolo began its operations in July 1951 . For the period between July 9 and December 31 , 1951 , the volume of Aurcolo' s sales amounted to $ 18,172.20, of which all but approximately $ 1,000 was derived from sales to Glass Fiber. Since December 31, 1951, whatever sales Aurcolo has made have been made to Glass Fiber (the volume of such sales is not described in the record ). Between July 9 and December 31, 1951, Aurcolo purchased materials valued at $19 ,303.62. With the exception of several thousand dollars ' worth of supplies , the goods so purchased consisted of raw materials "transferred" by Glass Fiber to Aurcolo. Glass Fiber concedes in its answer that it is engaged in interstate commerce , and it does not dispute that the Board has jurisdiction. There is no doubt that the Board has jurisdiction of Aurcolo, if for no other reason than that it produces goods shipped in interstate commerce. The question arises whether the Board should take jurisdiction over Aurcolo in view of the fact that its purchases and sales , considered separately from Glass Fiber' s operations, do not taCf. Christian Board of Publication, 13 NLRB 543, where the Board refused to accept as evidence of authorization signed slips of paper containing no words of authorization, although in the possession of the purported representative who also held numerous signed cards containing a proper designation. GLASS FIBER MOULDING COMPANY , 399 meet jurisdictional criteria administratively established by the Board in such cases as Hollow Tree Lumber Company, 91 NLRB 635. The evidence abundantly establishes that the operations of both companies are substantially integrated and that those of Aurcolo have been primarily an ancillary feature of Glass Fiber' s operations .20 In short the companies have, in the main', constituted a single enterprise , and this warrants the assertion of jurisdiction over Aurcolo as well as Glass Fiber. n I find that both Respondents are engaged in interstate commerce and that their operations affect such commerce , within the meaning of the Act, and that the assertion of jurisdiction over Aurcolo, as well as Glass Fiber, will effectuate the policies of the Act. IL THE LABOR ORGANIZATION INVOLVED The American Federation of Labor admits persons employed by the Respondents to mem- bership and is a labor organization within the meaning of Section 2 (5) of the Act. n Ill. THE ALLEGED UNFAIR LABOR PRACTICES A. Prefatory statement Organization of the employees began as a result of withdrawal of a rest -period privilege from the employees by the management. The privilege was restored , either in whole or in part, by Loerke, but five of the employees , including Ferrill, communicated with Tucker on September 8, 1951 , concerning organization of the plant. Tucker met with employees , first at Darr' s home on September 10, and then at Ferrill's house on September 11. At one of the meetings, Tucker furnished Darr with some blank authorization cards for distribution among the employees . All but three of the cards in evidence are dated either September 10 or 11, and presumably were respectively signed on oneor the other of those dates . As noted earlier, Tucker addressed his bargaining request on behalf of the A. F. of L. and filed the represen- tation petition on September 12; Glass Fiber received the bargaining request on September 13; employees met on September 15 and elected officers of the Local and decided upon its name; Tucker and Denious met on or about September 21 and negotiated concerning a consent elec- tion, completing their negotiations on September 25 with an agreement providing for a consent election and the substitution of the Local for the A. F. of L. on the ballot; and the election, which the Local lost, was held on October 5. B. The allegations of interference, restraint, and coercion Loerke delivered a series of speeches to employees during a period of approximately a week preceding the election. u The first speech, delivered about a week before the election, mLoerke testified that Aurcolo seeks and anticipates the development of other business and is conducting some experimental work to thatend. I am unable to indulge a speculation concerning Aurcolo's future business prospects . Whatever they may be, the evidence indi- cates that in the past its operations have been primarily an adjunct to those of Glass Fiber. n The Red Rock Co., 84 NLRB 521, enforcement denied on other than jurisdictional grounds with respect to one of the companies involved, 187 F. 2d 76 (C. A. 5); Launderepair Co., 90 NLRB 778 ; Morgan Packing Co., 26 LRRM 1552; Manhattan Shirt Company, 84 NLRB 100. 22 The Respondents' claim that the A. F. of L. is not a labor organization is without merit. See N. L. R B. v. Westex Boot and Shoe Co., 190 F . 2d 12 (C. A. 5). Cf. N. L. R. B. v. Highland Park Manufacturing Co., 341 U. S. 322. :a Findings with respect to the speeches are based on a synthesis of relevant portions of the testimony of four employees , Ferrill, Ronzio, Antolini, and Smith. Carpenter 's recol- lection of the content of a speech made on the day of the election appeared markedly faulty and was stimulated by discussions with others , and I base no findings on this portion of his testimony, although it may be noted that he attributes remarks to Loerke on that occasion, which are also imputed to him by Smith and Ronzio . Some variances may be found in the testimony of Ferrili, Ronzio, Antolini, and Smith, including differences in the remarks imputed to Loerke, but, upon my observation of the witnesses, these do not proceed from dishonest motives and are attributable to normal variables in the powers of recollection which exist among human beings . With respect to much of the statements attributed to Loerke, there is substantial accord among the witnesses . It is important to remember that Loerke, although present at the hearing, gave no testimony with respect to the content of his speeches, nor did the Respondents produce any witnesses on the subject . The testimony of the employees stands undisputed except as they may differ among themselves . Ferrill impressed me as having the best recollection of the speeches , and where material differ- ences exist among the employees , I have accepted her recollection as a basis for my findings. 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was made to an assemblage of all of the employees in the plant' s reception room . Loerke read from a prepared script, asserting that he did so in order not to be " blamed for intimi- dation of his employees" (Ferrill' s testimony). The speech was devoted primarily to the origin of Glass Fiber and its progress and contained no material violative of the Act. Loerke' s second address was made about 3 days before the election to group of approxi- mately 20 female employees in an area inside the plant near its entrance door His talk was made extemporaneously, beginning toward the end of the lunch period and extended for a sub- stantial time thereafter. Not all of those who heard him were present throughout his remarks, since the group gathered about him grew as employees returned from lunch and joined those already there. Antolini was the second employee on the scene, and Ferrill and Ronzio arrived later. During the course of his remarks , Loerke pointed to different members of the group, inquiring, as he pointed , whether they had been invited to attend the meeting of the organized employees at which the officers had been elected and if they had voted for such officers. As Ronzio described it, as he pointed to a given employee , he asked her: " Did you vote? " He inquired why the employees had not come to him to form a company union instead of having an "outsider in there to tell us what to do and how we should work and what nego- tiations should go on." Loerke adverted to the question of overtime , asserting that if a "union got in," it would limit the employees ' workweek to 40 hours and would not permit overtime in order to compel the employer to hire new employees , so that the Union could increase its membership and thus collect more dues Loerke stated that union-authorization cards had been distributed at a plant operated by Wright and McGill , a Denver concern, and that there the cards had been distributed openly , unlike those at the Responents ' plant. The cards at the Respondents' establishment had been passed out stealthily "behind his back," he asserted , and he had not been given "the opportunity that Wright and McGill had had." That concern, he stated , had given its employees " a blanket raise" and there "the union had evidently been forgotten about ." As far as appears , Ferrill was the only person to make any response to Loerke' s remarks . When she observed that no one replied to his inquiries con- cerning the election of officers , she made statements defending the fairness of the election and the representative character of the organization. 2e About 45 minutes before the election , Loerke delivered a speech to all of the employees in the plant who had been assembled for that purpose in one of the offices . The talk ended about 15 minutes before the employees voted . Loerke made substantially similar remarks con- cerning a 40-hour workweek and overtime as he had done on the occasion described above. I He asserted that if the employees thought they had worked previously , they "were really going to work when the union got in there" and he stated that he "did mean work." He "asked the officials (of the employees' organization) to stand up and identify themselves ." He paused "a considerable time" for them to do so , and when no one complied , he belittled the "offi- cials" for not identifying themselves and indicated that they were acting stealthily. Earlier that day, Howard Fischak , Ferrill' s foreman , in Antolini' s presence, asked Ferrill what the Union' s contract proposals would be, why employees were joining a union, and how she "was going to vote." She replied : "Why does everybody come to me and ask for things like that? Why should I know more than anybody else? " Fischak retorted that Ferrill "seemed to be the head of everything that went on." 26 In appraising the legality of various of Loerke 's statements , reference should be made to the setting and full context of the speeches in which they are to be found . One of his basic themes is that employees , as at Wright and McGill , stand to profit from an abandonment of 24Except as otherwise indicated, the language appearing in quotations in the description of Loerke's speeches herein is taken from Ferrill's testimony. 25Smith quotes Loerke as stating that if the plant were unionized "there would be no raises." No other witness quotes Loerke to that effect . Smith's recollection appeared to be somewhat faulty. In the light of that fact and of the other witnesses ' testimony, although Loerke gave - no testimony on the subject. I do not believe that the evidence preponderantly establishes that Loerke made the statement on the subject of "raises" and therefore base no finding on this aspect of Smith's testimony. 25Smith also described an incident with Fischak. About 3 days before the election, in the presence of Smith and 2 other employees , Fischak made the observation that "just three days" remained before the election and that he hoped that the Union would not win. Smith said, "Hub?" and Fischak remarked, "What do you mean, huh9 You mean you are for the union." Smith replied that she was "not going to make any statements." It is unnecessary to determine whether Fischak's inquiry during this somewhat fragmentary and casual conversation was unlawful, as such a determination would "neither add to, nor detract from, the scope" of the remedial order to be recommended herein (Chicago Newspaper Publishers Association. 86 NLRB 1041, 1044). GLASS FIBER MOULDING COMPANY 401 unionization. Thus I do not deem his reference to a company union as a mere rhetorical inquiry , but rather as the expression of a preference for such a union and as a proposal that the employees abandon their right of self-organization and instead " come to him" for the formation of an organization which would have his favor and assistance . Such a proposal interferes with and inhibits the right of employees to select their own bargaining represen- tative and violates the Act . Loerke's description of the "blanket increase" at Wright and McGill and his assertion that the union there had been " forgotten," coupled with his com- plaint that he had not been given "the opportunity" afforded that firm , were but a thinly disguised promise of possible benefit to be derived by the employees at the Respondents' plant if they would abandon their organizational efforts. n Such statements are designed to perform the same office as the proverbial carrot dangled before a mule to induce him to pur- sue a given course, but, unlike the mule , the law guarantees employees freedom from such inducements as Loerke put before them. His inquiries whether the employees at whom he pointed had been invited to attend organizational meetings and whether they had voted for union officers were no mere rhetorical questions , but constituted unlawful interrogation con- cerning attendance at meetings and participation in the union' s activities.$ Loerke' s demand for identification of the union' s "officials" is plainly coercive and unlawful. 29 The same may be said of Fischak's interrogation of Ferrill which, when viewed against the background of Loerke' s inquiries and other misconduct by the Respondents , may not be regarded as an isolated incident . Loerke' s remarks concerning overtime did not violate the Act, although they appear among other statements which were unlawful . Taken literally , as Ferrill and Antolini described them, the remarks with respect to overtime purported to de- scribe Loerke' s view of what the Union would require and not what the management would do, 30 and thus are protected by Section 8 (c) as an expression of "views , argument, or opinion." a However, that is not true of Loerke's statement that in the event of unionization the employees' workload would be increased . That was a threat of change in management policy and was thus unlawful. In sum, I find that the Respondents violated Section 8 (a) (1) of the Act as a consequence of Loerke' s expressed preference for a company union; his intimation that the way to secure an increase is by abandoning unionization , his inquiry whether given employees had been invited to attend the Union' s meeting and had voted for its officers; his request that employees "stand up and identify themselves " as officers of the Union ; his threat that the employees ' workload would be increased in the event of unionization of the plant ; and Fischak' s interrogation of Ferrill. 31 C. The discharge of Harry H. Darr Darr was on Glass Fiber' s payroll and began his employment in December 1950 . He oper- ated a machine which processed fiber material into the shape desired . It is undisputed that Loerke discharged him on September 27, 1951 As found above , he was one of a small group who initiated union organization at the plant. The first union meeting after the approach to Tucker was held at Darr ' s house. He is the only person identified in the record as a distributor of authorization cards at the plant. Prior to the organizational campaign at the plant , there was no rule in the plant prohibiting employees from talking while at work On one occasion in or about the middle of September, Barr and Hansen talked while the former was at work at his machine Loerke summoned Darr Z7Krimm Lumber Co., 97 NLRB 1561. 28 A. Kravitz and Co. , 89 NLRB 1415; International Furniture Co., 98 NLRB 674. 29Alside, Inc., 88 NLRB 460. SORonzio, Smith, and Carpenter simply quote Loerke as stating, in effect, that unionization would result in a loss of overtime. Their testimony suggests that Loerke's relevant remarks had the earmarks of a threat or reprisal for unionization . However, the testimony of Ferrill and Antolini with respect to the relevant statements contained greater circumstantial detail and I have accepted their version. iShortly before the election, the Respondents placed some posters on the plant 's bulletin board on the subject of unionization and the impending election . While some of the language used is intemperate and exaggerated in tone and content, the posters are protected statements of "views, argument, or opinion" within the meaning of Section 8 (c). 32 Although Fischak was employed as a foreman in Glass Fiber's operations , I have imputed responsibility for his conduct to Aurcolo, as well as to Glass Fiber , because of the unitary nature of the enterprise at the plant , and upon the authority of cases which will be cited in connection with a discussion of Darr's discharge. 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to his office and forbade the employee to talk while at work or to distribute any authorization cards 33 Darr and Carpenter worked in the same department at the plant and usually rode to work together in Carpenter's car. It was Carpenter's practice to call for Darr at the latter's home. Their scheduled starting time at the plant was 8 a.m. Fischak was their foreman. Darr was ill on Wednesday, September 26, and he was absent from work on that day. In order to spare Carpenter the trouble of calling for him and to notify the management of his absence, Darr telephoned Carpenter about 7:35 a in and requested the latter to notify the plant that he was ill and was unable to come to work When Carpenter arrived at the plant at his customary time, he notified Fischak that Darr would be absent. At the end of the day, Darr's timecard was removed from the rack by a clerk (unidentified in the record) upon Loerke's instructions. According to Loerke, this was done because he wished to speak to Darr when the latter returned to the plant Loerke testified that the only instructions he gave the. clerk were to tell Darr to see him. Mildred E. Barrett, the Respond- ents' bookkeeper, testified that at noon of that day she instructed Ruth Hires, a clerk, to call Darr's home, that she heard Hires give a number to the telephone operator, that no conver- sation followed, and that Hires then hung up Neither Hires nor the clerk referred to by Loerke was produced as a witness. Darr arrived at the plant on the following day at the scheduled hour. When he saw that the card was not in the rack, he spoke to Hires about the matter and she informed him that he had been terminated Hires has her desk near the time clock and it appears to be her function to place the cards in the rack. Darr left the plant after his conversation with Hires When Loerke arrived at the plant later that morning, he learned that Darr had been there Loerke thereupon called Darr's home and, upon learning that the employee was not at home, left a message requesting that Darr return to the plant Darr reached his home that morning after Loerke's call, changed into his street clothes, and was then informed by his daughter that Loerke had telephoned. Darr thereupon complied with Loerke's request and returned to the plant and upon his arrival proceeded to Loerke's office. The evidence of who was present in the office and what occurred there is conflicting. Ac- cording to Darr, only 2 other persons were present when he spoke to Loerke. These were 2 employees; Ross and Ellis (who subsequently succeeded Fischak as foreman). Loerke and Barrett claim that the latter was also present According to Darr, he opened the conversation by telling Loerke that his daughter had given him a message from Loerke that he had not been terminated and to return to the plant. Loerke, Darr stated, replied that "it was all a mistake" and that Darr had not been termi- nated. Darr testified that he then expressed the view that he should be paid for "this half day's work", that Loerke replied that he would be paid for the half day; and that Loerke then laid him off, stating that there was insufficient business to keep his (Darr's) machine running and that he would be recalled if business picked up The sense of Darr's testimony is that he felt he was being discharged and not temporarily laid off and that he expressed himself to that effect. Whether at that point or another, but after Loerke had told Darr that he was being laid off, Ellis (whoappears tohavebeen identified Closely with management, although not yet a fore- man) remarked, according to Darr, that "we have put up with you an awful lbt" and pointed out that Darr had beeh absent a number of weeks in order to have his teeth extracted and to have dentures made. Darr then inquired, tie testified; why he had not been discharged at that time. He also inquired of Ellis, Darr asserted, why Ellis had not discharged or criticized him for smoking in the lavatory on several occasions, although such smoking was contrary to company rules and he (Darr) had informed Ellis that he was going to continue to smoke. Darr's version does not indicate whether Ellis made any response, but according to Darr's account, at some point after Darr asked Ellis why he had not been discharged earlier , Loerke interposed to point out that Darr was not being discharged but "was just laid off temporarily" because of lack of work Darr also testified that he asked Loerke for "a recommendation showing that I was laid off on account of no work"; that Loerke agreed to give him one, and that when he prepared to leave, he repeated his request, but Loerke, left the office for awhile and stated, upon his return, that he was out of "government forms" and could not supply the recommendation "at this time" but would mail it Darr left the plant after re- ceiving 2 paychecks (1 covering his time for that morning) which were prepared after his interview with Loerke. 59 The General Counsel's brief urges a finding that this prohibition, as well as an alleged elimination of a rest period after unionization began, violated Section 8 (a) (1) of the Act. In the light of the bill of particulars furnished by the General Counsel and of statements that he made at the hearing to the Respondent's counsel with respect to the material upon which he would rely to establish the allegations of paragraph 13 of the complaint, I deem it inappropriate to make the findings sought by the General Counsel. GLASS FIBER MOULDING COMPANY 403 The following excerpt from the transcript contains Loerke's version of the conversation and of the circumstances of Darr's termination: And about, 11 o'clock he came in and wanted to see me. So I talked to Mr. Darr, and he stated that I could take my job and stick it up my rear end; that is the first statement he made. And he says, "I am making and have been making over three ro (sic) four hundred dollars." And so I said, "Well, Harry, there is no use your working for me at such low pay when you are making so much more on the outside." And he asked, he says, "Am I fired?" and I said, "You can take your own judgment on that, whichever you want to take, you are terminated." And so that was the reason Harry Darr was terminated. Barrett's version of the conversation is that Darr walked into the office and asked Loerke if he had been discharged, that Loerke replied, "Sit down, Harry, and we will talk it over"; and that Darr responded, "You think I'm a dumb- - ... I can make three hundred a week and you can just stick it--." Darr denied that he made the rude remarks, either in words or substance, attributed to him by Loerke and Barrett. He also denied, in response to a question put to him by the Respondents' counsel, that he told Loerke that he was "already making $300 a month," and he explained that what he had said (at a point in the conversation not specified in his testimony) was that a layoff for a few weeks would not "bother" him because it was the melon harvest season and that he could make himself "a couple of hundred bucks a week" in the harvest area There are aspects of the evidence which militate against acceptance of the versions given by Loerke and Barrett. First, some phases of their testimony do not quite mesh with other evidence which is both credible and undisputed. There is no reason to doubt the testimony that Darr telephoned Carpenter and asked the latter not to call for him and to convey a message that he would be absent. Carpenter lived at some distance from Darr, and it would only be natural that Darr should make the call to spare Carpenter an unnecessary trip. Carpenter credibly corroborates Darr's testimony, and the evidence is undisputed that when Carpenter arrived at the plant he gave Fischak Darr's message. Yet Barrett claims that she instructed Hires at noon of that day to call Darr's home "to see if he was absent," and Loerke asserts that he had Darr's card taken out of the rack at the close of the day because Darr had absented himself "without notifying the company." The implication of that claim is that either Loerke did not talk to Fischak about the matter or that the latter did not tell Loerke about Darr's notification. Bearing in mind that Loerke appears to have focused his attention upon Darr's absence, that the plant is relatively small, and that Fischak was Darr's foreman, it is difficult to conclude that Loerke would not take up the question of Darr's absence with Fischak before ordering the card taken from the rack or, if he did talk to the foreman, that Fischak would not tellLoerke about Darr's message It is unnecessary to speculate whether Loerke had, in fact, ordered the card taken from the rack because of a purpose to use Darr ' s absence as an excuse to discharge him and then changed his mind because such a justification would be insufficient to conceal a design to discharge Darr for union activity. The point is that I am unpersuaded of the truth of Loerke's claim, as he testified, that he had the card removed from the rack because Darr had absented himself "without notifying the company," and I do not believe that Loerke made a frank disclosure of his motivation in removing the card. Second, although Darr had been told by Hires that he had been terminated, in the light of Loerke's request that he return. I deem it less probable that he would open his remarks on so insolent and challenging a note as Loerke described than that there would be some opening statements dealing with Loerke's request that he return. In that regard, Darr's version of the initial phases of the conversation sounds a more plausible note. Third, I do not credit Barrett's claim that she was present in the office during the conversation . There are discrepancies in her testimony which bear on the question whether she was actually in the office during the conversation. Her desk is located outside Loerke ' s office and about 2 or 3 feet from its en- trance. Loerke's testimony described her location during the conversation as "in" his office "at the doorway." Initially, Barrett's account placed her position "as just about the entrance of Mr. Loerke's office and right about the corner of my desk " She also testified that Darr "went by" her in order to get "into" Loerke's office. At a later point in her account, she located her position as "in the door, between the two offices." Now Barrett could not have been standing "in" the office, and "in" the door, and "right about the corner" of her desk which is 2 or 3 feet outside of Loerke's office, all at the same time. There is no evidence that she could not have overheard the conversation from a position at the corner of her desk out- side the office and I would be disinclined to attach significance to what, in other circumstances, might be minor variances in a witness ' description of her location at a given time. However, at points in describing her location, her demeanor assumed an evasive cast and it became evident to me when she finally placed herself as "in the door, between the two offices" that 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD she did so because of a realization that she had already given testimony from which one might possibly infer that she was not actually in Loerke's office, but at her desk outside, and that it was possible that she was not ina position to overhear the conversation Upon my appraisal of the witness, I do not regard her testimony as reliable. Finally, for all that appears in the testimony of Loerke and Barrett, Darr's side of the conversation consisted of little more than an insolent outburst which as already noted, I regard as implausible in the light of other evidence On the other hand , Darr's version is characterized by circumstantial detail such as his concern over payment for the morning and a recommendation. Significantly, Darr was actually paid for the morning and this tends to corroborate his claim that he requested such payment, a request to which no, reference is made by Loerke and Barrett Moreover, Darr quotes a detailed and recriminatory conversation between himself and Ellis; Loerke and Barrett make no reference to the matter. The circumstantially detailed nature of Darr's account contributes a note of plausibility to it, particularly as one phase of his testimony, his request for a half day's pay, is corroborated by the undisputed fact that he received pay- ment for the half day in sum, I am unable to credit Loerke and Barrett I credit Darr's version of what occurred in Loerke's office. The Respondents do not contend that Darr was discharged because of his absence , or laid off temporarily because of a lack of work . There is no evidence that there was insufficient work available. On the contrary, it is undisputed that Fischak told Darr only 2 weeks before the latter' s discharge that production would have to be stepped up and that the backlog of orders was so great that it would be necessary "to run two shifts." Thus it is clear that Loerke did not tell Darr the truth when the former told the employee that he was being temporarily laid off for lack of work . I am convinced and find that it was`no more than a pretext to conceal a motivation to dismiss Darr because of his union activity. Loerke offered no denial that he was aware of Darr ' s activities , and it is plain that he had substantial in- formation about them , for he forbade Darr to distribute cards in the plant, and it is evident that the cards to which Loerke referred were the union authorization cards . Against the background of the evidence that Darr was one of the principal sponsors of the movement to organize the plant and engaged in extensive activities to that end ; that the discharge occur- red shortly after the agreement to hold the election was made ; that Loerke was aware that Darr engaged in union activities and rebuked the employee for distributing the cards in the plant ; that Loerke was hostile to the employees' efforts at self-organization and engaged In unfair labor practices to implement his hostility, and that he used a pretext to effect Darr' s termination , I find that Darr was discriminatorily discharged because of his union activities. As Darr was on Glass Fiber' s payroll , the question arises, as it does with respect to the other unfair labor practices found above , and also in the case of Ferrill , whether responsi- bility for the unlawful conduct may be imputed to Aurcolo as well as Glass Fiber. Such responsibility goes without saying with respect to the unlawful practices committed by Loerke during any speech at which all employees in the plant were present . In connection with the other violations , it may be borne in mind that the two corporations have been in effect arms of the same enterprise Moreover , the fact that the Respondents agreed on September 25 to place employees on the payrolls of the companies in a single collective- bargaining unit provides evidence that the firms themselves regarded their operations as unitary in nature , at least for the purposes of their labor- relations policies. In any event, quite apart from the election agreement , the integrated character of the Respondent's operations warrants a finding that they bear joint and several responsibility for the conduct of Loerke and Fischak. x Accordingly . I find that , as a result of Darr's discharge, both Respondents violated Section 8 (a) (1) and 8 (a) (3) of the Act. D. The alleged discharge of Clara P. Ferrill Ferrill began her employment with Glass Fiber about April 1. 1951, and resigned on November 5, 1951, under circumstances which will be described below. Fischak was her foreman. His employment was terminated on October 30, 1951, and he was succeeded by Ellis who thereafter supervised Ferrill and assigned work to her. MHill Transportation Company, 75 NLRB 1203, enforced Dec. 7, 1948 , Docket No. 1203 (C. A. 1); Don Juan Co., Inc., 79 NLRB 154; N. L. R. B. v. Federal Engineering Co., 153 F. 2d 233 (C. A. 6); N. L. R. B. v. Condenser Corporation, 128 F. 2d 67 (C. A. 3); The Red Rock Company, 84 NLRB 521, enforcement denied on this aspect, 187 F. 2d 76 (C. A. 5). See, also, N. L. R. B. v. Pennsylvania Greyhound Lines, 303 U. S. 261. The decision of the Fifth Circuit in The Red Rock case is to the contrary, but it does not appear to be in accord with the weight of authority. GLASS FIBER MOULDING COMPANY 405 Sometime before Ferrill resigned, Ellis commenced a practice of watching her during much of each day, and he continued such conduct until she resigned (Ferrill estimated that Ellis began the practice about 2 weeks before her resignation) He would take up a position behind or to the side of Ferrill at distances variously estimated by witnesses as ranging from 6 to 17 feet and focus his gaze upon her. It was necessary for Ferrill from time to time to move from one place to another in the plant for the performance of her duties and on such occasions Ellis would move with her and take up a position from which he would continue to watch her. Several days after Ellis commenced his practice, Ferrill began to get a "a little bit nervous." As he had said nothing to her, she "turned around asked him if he was having fun " His only reply was that he "was having fun." Ellis did not criticize her work at any time prior to her resignation No supervisor had ever engaged in such conduct before. The effect upon Ferrill, as she described it, was that she became"nervous and afraid I was going to make a mistake " She testified; "I couldn't take this constant watching all the time. It was ruining my home life and ruining my eating and everything. I was all tied up in knots." On November 5, she submitted her resignation in the form of a note reading: "I, Clara P. Ferrill, hereby resign my employment with Glass Fiber Moulding Company for personal reasons." The findings made above with respect to Ellis' conduct do not rest upon Ferrill's testi- mony alone. Her testimony is substantiated by that of others who worked near her and were in a position to observe what went on. There are some differences in the testimony bearing on the duration of the period of Ellis' behavior, the length of time that he would devote on a given day to watching Ferrill, and the distance from her that Ellis would stand when he focused his gaze upon her, but the variances are not of such a nature as to alter the con- clusion that Ferrill's description of Ellis' conduct is substantially supported by the other witnesses. Nor do I accord any controlling weight to the fact that Ellis' behavior antedaaed Fischak's termination on October 30 and that evidence presented by the General Counsel casts Ellis, during part of the period while he was watching Ferrill, in the role of foreman, as Fischak's successor, prior to that date. It may be borne in mind that, prior to the time when he succeeded Fischak, Ellis was identified with the management in something other than the role of a mere employee, as witness his participation in the conversation on Sep- tember 27 during the meeting between Darr and Loerke. The suject of the colloquy be- tween Darr and Ellis on that occasion indicates that employees regarded Ellis as a repre- sentative of management long before he succeeded Fischak. Thus whether Ellis began his course of conduct before he became foreman and continued it until Ferrill's resignation or whether it started after he succeeded Fischak and thus lasted for a shorter period than the witnesses described is of no importance if, in fact, he did behave in the manner described by the witnesses. The central facts to bear in mind are that Ellis was not produced as a witness and that the Respondents offered no testimony of any kind to explain his extra- ordinary conduct. In short, the substance of the witnesses' description of Ellis' conduct stands uncontroverted, irrespective of the relatively minor differences in their testimony. The Respondents, stressing the presence of the term ,personal reasons" in the resignation, assert that the evidence at most establishes personal hostility by Ellis toward Ferrill The short answer to that contention is that there is not a shred of evidence that Ellis' conduct stemmed from personal hostility, but there is abundant proof that the Respondents were deeply hostile to the organization of the plant, committed unfair labor practices to thwart the employees' efforts at self-organization, and resorted to devious behavior to rid the plant of Darr, another leader in the union activity. It is in that setting that Ellis' behavior requires some explanation , and the Respondents have advanced none . Moreover, against that back- ground, the use of the term "personal reasons" is indeed a slender reed to support a con- clusion that Ferrill was not coerced into resigning because of her union leadership and activity. The term is broad enough to include many reasons, including the fact that Ellis' conduct was antiumon in character and had so affected Ferrill personally that she was forced to resign. What is more important, the basic issue is not the construction that Ferrill put upon Ellis' conduct, but what the motivation for his behavior was and what it was designed to accomplish. What that motivation was must be sought not merely in a phrase used by an employee under coercive pressure but in the record as a whole. The Respondents also stress the fact that Ferrill lodged no complaint with Loerke. It may be pointed out that Ellis ' functions were Loerke' s responsibility and not Ferrill's. It was not her obligation to undertake steps to correct her supervisor 's misconduct . Signifi- cantly, Loerke gave no testimony disavowing his complicity or acquiescence in Ellis' behavior. Ferrill testified that she lodged no complaint with Loerke because she assumed thy( Ellis was acting under his direction . I find her assumption in that regard to be credible, 7283230 0 - 54 - 27 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD particularly in the light of the evidence of Loerke's antiunion animus, and of Ferrill's leadership in the movement to unionize the plant 35 Ferrill was not merely in the forefront of the efforts to organize the plant , but she was the president of the Local. It may be recalled that when Loerke addressed a group of approxi- mately 20 female employees a few days before the election , she was the only person who spoke up and came to the defense of the Union when Loerke challenged its representative character . Moreover , Fischak regarded her as "the head" of organizational activity in the plant and expressed himself to that effect shortly before the election. It is thus clear that the Respondents had a substantial awareness of her leadership status Bearing in mind Ferrill' s union activities , the Respondents' knowledge of her leader- ship role, Loerke's hostility to unionization, the evidence of his unfair labor practices, and the failure of the Respondents to go forward with the evidence to explain Ellis' conduct, I am convinced that Ellis' behavior toward Ferrill was caused by her union activities and that it was no more than a device to coerce her into quitting her job . In that setting, I cannot consider her resignation as voluntary , for to do so would frustrate the remedial policies of the Act in short, Ellis' conduct was tantamount to a discharge of Ferrill. Accordingly, I find that the Respondents discriminatorily discharged Ferrill on November 5, 1951, and thereby violated Section 8 (a) (1) and 8 (a) (3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above , occurring 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 disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY As it has been found that Respondents have engaged in unfair labor practices , it will be recommended that the Respondents cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. As it has been found that the Respondents have interfered with, restrained , and coerced their employees in the exercise by them of rights guaranteed by Section 7 of the Act , it will be recommended that Respondents cease and desist therefrom. As it has been found that the Respondents have discriminated in regard to the tenure of employment of Harry H Darr and Clara P. Ferrill, it will be recommended that the Re- spondents offer to them immediate and full reinstatement to their respective former or substantially equivalent positions ss without prejudice to their seniority and other rights and privileges , and jointly and severally make them whole for any loss of pay they may have suffered by reason of the Respondents ' discrimination against them , by payment to each of a sum of money equal to the amount of wages such employee would have earned from the date of said employee' s discharge, as found above, to the date of a proper offer 35Shortly before Fischak's tenure ended, Ferrill entered a hospital for a few days with what the record suggests was a female complaint. Ellis was foreman when she returned to work. Ferrill asked Loerke for permission to work part time until the restoration of her strength. He gave such permission. Ferrill testified that she placed her request before Loerke and not Ellis because she felt that Loerke would give her a "decent answer" and Ellis, who, according to Ferrill, was uncivil to the female employees , would not. The sense of her testimony is that she did not wish to discuss so personal a matter as her ailment with Ellis . I am unable to draw any definitive conclusion from this, as the Respondents seem to do, that Ellis' behavior stemmed from mere general hostility toward the female help or that he engaged in a frolic of his own which would have been corrected upon complaint to Loerke. The fact that Ferrill believed that she would receive considerate treatment at Loerke's hands of a matter so personal as her ailment does not necessarily mean that she should have assumed that Loerke had no complicity in Ellis' behavior. It is not infrequent that individuals who are humane in their personal relationships will not hesitate to violate the Act. 36In accordance with the Board's previous interpretation of the term , the expression "former or substantially equivalent position" is interpreted to mean "former position whenever possible and if such position is no longer in existence , then to a substantially equivalent position." See The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. TERMINAL STOi2AGE COMPANY 407 of reinstatement to such employee. Loss of pay for each employee will be computed on the basis of each separate quarter or portion thereof during the period from the date of dis- charge of such employee to the date of a proper offer of reinstatement . The quarterly periods shall begin with the respective first days of January, April, July, and October. Loss of pay shall be determined by deducting from a sum equal to that which the employee normally would have earned in each' such quarter or portion thereof, his net earnings, if any, in other employment during that period . Earnings in one quarter shall have no effect upon the back-pay liability for any other quarter. sa The Respondents will be required, upon reasonable request, to make available to the Board and its agents all records pertinent to an analysis of the amount due as back pay and to the reinstatement recommended herein. Upon the basis of the foregoing findings of fact , and upon the entire record in these pro- ceedings, I make the following: CONCLUSIONS OF LAW 1. American Federation of Labor is a labor organization within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing employees , as found above, in the exercise of rights guaranteed to them by Section 7 of the Act, the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 3. By discriminating in regard to the tenure of employment of Harry H. Darr and Clara P. Ferrill, 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 (a) (3) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sections 2 (6) and 2 (7) of the Act. [ Recommendations omitted from publication.] 37See Crossett Lumber Company, 8 NLRB 440 for a construction of "net earnings." 38 F. W. Woolworth Company, 90 NLRB 289. TERMINAL STORAGE COMPANY, Petitioner and CHAUF- FEURS, TEAMSTERS AND HELPERS, GENERAL LOCAL NO. 200, INTERNATIONAL BROTHERHOOD OF TEAM- STERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL. Case No. 13-RM-151. April Z7, 1953 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Joseph Cohen, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the mean- ing of the Act. 2. The labor organization involved claims to represent employees of the Employer. 3. The Employer, which is engaged in warehousing and public cold-storage operations in Milwaukee, Wisconsin, re- quests that an election be held among all of its employees, con- tending that these employees constitute a separate appropriate unit. The Union contends that the only appropriate unit is a multiemployer unit of employees of all employer members of 104 NLRB No. 54.