Injection Molding Co.

INJECTION MOLDING COMPANY 639 INJECTION MOLDING COMPANY and EMMA BANDY, NETTIE M. HARPER, RUBY HOBBS, LOUISE LEMBKE, ELSIE MARY MAY, EVELYN RUSSELL, NONA SHAW, MILDRED SPANGLER, HAZEL TIMMONS, NADINE RING, ANNABELL WOOLEN INTERNATIONAL HANDBAG, LUGGAGE, BELT AND NOVELTY WORKERS' UNION, KANSAS CITY PLASTIC AND NOVELTY WORKERS' UNION, LOCAL NO. 161, AFL and ANNABELL WOOLEN. Cases Nos. 17-CA-331, 17-CA- 333, 17-CA-334, 17-CA-335, 17-CA-336, 17-CA-337, 17- CA-338, 17-CA-339, 17-CA-340, 17-CA-349, 17-CA-354, and 17-CB-38. May5, 1953 DECISION AND ORDER On October 31, 1952, Trial Examiner Peter F. Ward issued his Intermediate Report in the above-entitled proceedings finding that the Respondent Company had engaged in and was engaging in certain unfair labor practices in violation of Section 8 (a) (1), (3), and (4) of the Labor Management Rela- tions Act, as amended, and that the Respondent Union had engaged in and was engaging in certain unfair labor practices in violation of Section 8 (b) (1) and (2) of the Act, and recom- mending that the Respondents cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the Respondent Company filed exceptions to the Intermediate Report and a supporting brief, and the Respondent Union filed exceptions. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed.' The Board has 1 We make the following correction of minor misstatements of fact or typographical errors appearing in the Intermediate Report, which do not affect the ultimate conclusions. I. R. text, after footnote 19: The withdrawn charges against the Respondent Union were in Case No. 17-CB-28, not 25. The night shift hours were 11 p. m. to 7 a . m. - not 2 a . m. - as otherwise amply appears. I. R. text, after footnote 34: "Foreman Banken's statements , set forth above, need no reiteration here." Underlined letters added to supply meaning obviously intended. I. R. sec. III, A, 2, (c): Timmons was hired October 26, 1949, not 1950. I. R. sec. III, A. 2, (d): Lembke's service letter correctly stated that she was first employed October 26, 1949, not October 6 , and terminated July 25, not July 1, 1950. I. R. sec. III, A. 2, (h): Ludwig was hired July 19, not July 29, 1949. I. R. text, after footnote 92: The next sentence should read: "Field told Grazda he didn't have to pay the fine, as it was against the law, but the latter stated that he would personally see that Field lost his job if he didn't pay it." I. R. footnote 97: delete "not" in sentence concerning Republic Steel Corporation holding. The Respondent Company excepts to the Trial Examiner's "inference" (I. R. footnote 10, and text in paragraph immediately preceding paragraph containing footnote 33) of admitted 8 (a) (2) activity on the part of Respondent Company based on its May 3 Neutrality Notice, posted during the strike, and the poststrike settlement notice. We agree that the exception has merit insofar as the inference was based upon the formal settlement notice. But the earlier notice, posted by the Respondent Company without reference to settlement of then pending charges, unquestionably implies domination and interference with "I.M.C.O. in- dependent Union." 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD considered the Intermediate Report,' the exceptions, the Re- spondent Company's brief, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following additions and modifications. 1. We agree with the finding of the Trial Examiner that the Respondent Company violated Section 8 (a) (3) and (1) of the Act when, on July 25, 1950, it discharged Bandy, Hobbs, Lembke, Shaw, Timmons, and Ring, in connection with eliminat- ing the third shift in the bottle assembly department,' for the discriminatory reason that they were known CIO ad- herents.4 In this connection we emphasize the following: that these employees were identified in the mind of the Respondent Company's president-manager with the picketing during the strike; 5 that they admittedly did satisfactory work;6 that earlier in the same month of the discharges--and without any union contract being in effect--the Respondent Company had used seniority as the basis for transferring employees to another department, but in making the discharges several weeks later gave no convincing explanation of its failure to follow the same policy in order to make a fair selection among satis- factory employees, and relied instead upon the generality of need for a "well-rounded organization," could assign no reasons for specific selections , and admitted not consulting the dischargees' forelady; that 4 days before the July 25 discharges the Respondent Company had hired 2 new em- ployees,' during the ensuing month of August hired 6 new 2A careful study of the entire record discloses that the Trial Examiner's findings of violation of the Act are clearly justified. No bias or prejudice is apparent in these findings despite the Intermediate Report's lengthy quotations from the record, of which the Respond- ent Company complains. S We note some ambiguity in the Trial Examiner's finding that a reduction in force was not warranted . As such a finding is unnecessary to a determination of the issues before us, we shall neither analyze nor adopt it. 4The Trial Examiner assumed that the service letters sent to Hobbs and Timmons mis- takenly implied that they were night shift employees . However, these letters were equally capallle of the interpretation that the two were merely bottle assembly department employees dispensed with rather than reallocated in connection with the third shift elimination. Although the record does not affirmatively show that President-Manager Archer resented the UAW-CIO's interference in the Lembke-Shaw cleanup assignment controversy (see I. R. footnote 56) - as it does in connection with the March 1950 reinstatement of Elsie May - we agree with the Trial Examiner's conclusion that Archer, having acceded to the Union's request and put Lembke and Shaw back to work without loss of pay, may not later urge their conduct giving rise to the incident as a defense to a charge of discrimination in their dis- charge. 6Three days after the strike began on April 17, 1950, a State court injunction limited the pickets to 4 at any 1 time. All 6 of these employees had engaged in conversations with Archer while picketing, and Archer admitted that the picketing identified CIO adherents in his mind. 6 This admission was made by Archer and Night Shift Forelady Elma Lou Cook-- entirely independent of the Trial Examiner 's inference based upon the favorable service letters given dischargees under the Missouri statute . All six were capable of doing any job in the bottle assembly department. 7These two were Margaret Henkel and Goldie White, the wife and the sister- in-law of employee Henkel, a toolmaker , who was president of the Respondent Local Union. Archer attempted to explain these hirings , made at a time when a layoff was contemplated, by saying that they were necessary to keep Henkel in Kansas City. We note that General Counsel's Exhibit No. 11 indicates that Margaret Henkel worked only about 2 weeks , resigning August 5, 1950; White was terminated in February 1951. INJECTION MOLDING COMPANY 641 employees ,9 and during October 9 new employees , all for work in the bottle assembly department , but made no effort to contact the dischargees in August and October , and gave the inadequate explanation that the discharge letters required employees to express a "desire for reemployment."? 2. We likewise agree with the Trial Examiner ' s findings that the Respondent Company violated Section 8 (a) (3) and (1) of the Act when it discharged Mildred Spangler ( Ludwig) on July 11, Nettie Harper on August 8, and Elsie May on August 22. May, a "good operator ," and the senior nonsupervisory woman operator , was well known to the Respondent Company as a CIO adherent . She was elected steward for the production department in February 1950 and in March wrote a memo to management concerning a grievance about Foreman Petrovic. Her March discharge grew out of this incident , but the Union intervened and secured her reinstatement. Later she was cautioned by Foreman Martin not to contact union representa- tives near the plant on her lunch and rest periods . We agree that the grounds for her discharge --" closing up on a die" and passing bad work --were mere pretexts to rid the Employer of an employee known for her militant unionism . We think the record clearly shows that the • "cards were stacked" against May , to use a figure of speech , when she returned to work about August 15 , after being out ill for 2 weeks. She was assigned to No . 1 machine , which had been causing trouble for some weeks . 1° Her complaints to foremen that No. 1 machine was working poorly were answered by instruc- tions to pass all but the worst bottles , and followed by com- pliments on the amount of her production . After a week of this, Archer himself warned her to watch the quality of the bottles, but Foreman Epling told her "not to worry about it" -- 9 The Respondent Companq objects to the statement in the intermediate Report that "an entire new group of employees were hired " for the temporary night shift in August 1950. This wording is somewhat misleading, but we note that Archer did admit that 6 new em- ployees were hired during the month of August . A comparison of the Respondent Company's Exhibit No. 35 with General Counsel's Exhibit No. 11 indicates that 3 of the 6 were actually assigned to the extra shift work Wilma Ripley. Darlene Irwin, and Midge Ray. 9 We agree with the Trial Examiner that the dismissal letters to these six employees were "adroitly" worded to discourage requests for reinstatement . Bandy testified, without contra- diction, that when she was discharged she told Miss Mayo, the office girl , that "if it was on account of the shifts. ..[she] could work either of the two"; that she spoke with Mayo again in early November asking for her job back, but when she managed to see Archer later in November he said he didn't know she wanted it back; and that although she thereafter called Forelady Rodgers "regularly," she was never recalled. As to Hobbs and Ring, the Respondent Company ignored the purported requirement set out in the letters and took the initiative in offering them reemployment in September 1950. In general. concerning its policy on "recalling or retaining help," Archer testified that the Respondent Company had "no set policy," and frequently hired new people rather than those laid off because it didn't know whether the latter were employed elsewhere. Yet we note Archer's testimony that he could tell from unemployment compensation claims whether employees were working. 10 Foreman Epling admitted that they were "probably" having difficulty with this machine. Archer himself, in explaining the necessity for the temporary third shift then being run, testified "We were short of machinery. We had breakdowns in our machines ." (emphasis supplied). Epling also admitted that rejects from previous shifts were not checked by him to see whether operators other than May were having similar difficulty on No . 1 machine. 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD just do her best. The next day, still worried, she called the attention of foremen to two particularly bad bottles, only to be called to the office and discharged by Archer despite her protest that she had not closed up on the die. Testimony supporting May's testimony, but not mentioned by the Trial Examiner, is that of Field, who had been a relief operator and floorman during 1950. Field testified that: The No. 1 machine had been giving trouble; it needed a new part and he had discussed the matter with Shop Foreman Banken; he had seen one of the bad bottles from May's machine the morning of her discharge and didn't think it had been "closed up on"; later that year employees Grazda and Yeado "closed up on" a die and were reported but not discharged; and frequently the damage to a die from such action is not serious and the die can be used "for months."ii Harper, also a seasoned employee," who picketed "just about every day" during the strike and wore a UAW-CIO button that occasioned comments by Shop Foreman Banken and President Archer," appears to have been an earlier victim of the "don't worry about how your machine is running" technique. Foreman Martin admitted that he "could have told her that,"--as she testified he did--when a week before her discharge she asked him about a production report to foremen 14 mentioned to her by a fellow employee, which indicated a high reject count on machine No. 1. This was the machine Harper had worked on the previous week and the same machine that figured in May's discharge several weeks later. Archer's testimony as to the reason for Harper's discharge is par- ticularly unconvincing. Much of it is quoted inthe Intermediate Report. It varied from: "I think lack of cooperation was sufficient," to "reports" that Harper "was throwing the count off on our bottles," to Harper' s "carelessness in itself"--which Archer then defined as "carelessness in count and refusal to obey orders," which refusal he then defined as refusal to "answer" questions about her count--, to "misconduct," and, finally, to advice of his attorney. Both Archer and Foreman Martin admitted that before Harper's discharge they gave her no specific warning that her work 11 Grazda and Yeado did not testify. Banken recalled the Grazda incident but denied that it constituted closing up on a die; he had no recollection of the Yeado incident . He was not asked about the condition of No. 1 machine, and hence did not deny Field's testimony that the machine needed repairs. Archer also did not recall the Yeado incident but testified that he had discharged an employee named Frances in 1948 for that reason. He was not asked about Grazda. 12Of the Respondent Company's women employees , only May and Forelady Rodgers had longer service. See General Counsel's Exhibit No. 11. isBanken did not deny seeing the button, but denied these comments . Archer was not questioned about the incident. Credited by the Trial Examiner was testimony that Banken said Harper was discharged because "she belonged to the wrong union ." ( I. R. footnote 80.) 14From Harper's testimony it appears that this may have been the Respondent Company's Exhibit No. 9, referred to next below. In its brief the Respondent Company mistakenly refers to Martin speaking to Harper about this report or memorandum . Actually, it was Harper who was concerned about the existence of such a report, and whatever warning effect the incident and her concern might have had was clearly negatived by Martin telling her not to worry about it. INJECTION MOLDING COMPANY 643 was unsatisfactory. 15 It was also undenied that on the August 7 night shift--her last working day--her production was con- siderably above that of the previous operator, and that when she was summoned to the plant several hours after the end of that shift,'' she was not told the reason . Testimony that Foreman Price had told her only 2 weeks before, while she was working on No. 6 machine, that she was doing better on it than the other 2 operators, also was not denied. Iti.view of Harper 's experience as an operator , we consider the failure by the Respondent Company to warn her about the quality of her work before discharging her, instead of lulling her into a feeling of security, and its vacillation in assigning a reason for her discharge, conclusive evidence that the reasons given were mere pretext for ridding itself of this CIO adherent. Spangler, like May, was elected a UAW-CIO steward in February 1950--for the bottle room--and had twice conferred with management and union officials in that capacity. While picketing she had several conversations with Archer, who testified that he knew her to be "C.I.O." As the reason for her discharge on July 11, Archer testified: "failure to report to work for about three weeks." At the time of her discharge Spangler had completed a year in the employ of the Respondent Company. The record contains no indication that she did anything but satisfactory work;1/7 in fact, Forelady Rodgers, who actually told her of the discharge, admitted that, "a couple of times." when absent, she had placed Spangler in charge of the bottle room because she was "very competent." Rodgers also admitted that she and Spangler had been "pretty friendly." In the light of these facts--plus the absence of any formal leave policy for these employees--it is understandable that Spangler felt justified in leaving for Peoria, after giving to Rodgers' husband" her message that she would be away 2 or is We agree with the Trial Examiner that Respondent Company's Exhibit No . 34, a pencil note by Foreman Martin dated August 7. 1950 , concerning rejects and scrap on No. 1 machine, was inconclusive . On the stand Martin admitted that this note was not a routine report, but an "extra" one which he decided to make. Although finding that Respondent Company's Exhibit No. 9 was properly rejected, the Trial Examiner thoroughly analyzed it and found it lacking in probative value. In adopting the conclusion of lack of probative value, we empha- size particularly the fact that no other operator whose production appears to be shown thereon was working on the same sort of bottles as Harper. 16 We do not concur in the Trial Examiner 's implied finding that Harper had. no duty to return to the plant until the beginning of the August 8 night shift at 11 p. m. However, in the circumstances, we do not think that her failure to come in by 4 p. m. that afternoon was the real reason for the discharge-- assuming that the Respondent Company had actually relied upon the reason. 17 Evidence that during her last 2 weeks of work she stayed home on Friday and worked Saturday, when overtime pay was in effect, was neutralized by an admission that this was not unusual among employees , as well as by Archer 's inability to "recall" whether she had been cautioned about this. 16 The Trial Examiner (I. R. footnote 68) questioned Rodgers' credibility in this connection but instead of resolving the question, concluded that if true, her testimony that her husband didn't give her the full message indicated his CIO animosity . We do not adopt the latter con- clusion. We do attach significance to the lack of corroborative testimony by Rodgers him- self. We find that Dorothy Rodgers' testimony is not credible . In this connection we note not only the lack of corroboration, but her unsatisfactory testimony concerning the knowledge of Spangler 's "close" association with her relatives in Peoria, hedging as Rodgers obviously did in answering questions on this point. 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3 weeks because of her cousin's death, and after giving the same message later can that night--when she received no call from Rodgers as requested--to Elma Lou Cook, the super- visor on duty. On these facts it is also understandable that she made no further arrangements about leave upon her temporary return to the city about June 30, either when she went to the plant to vote, or when she answered May's telephone call to ask whether her nephew should be allowed to pick up her current paycheck. In fact, had the Respondent Company actually been in doubt about how much longer a "very com- petent" employee expected to be off, it is not understandable, in the affairs of this admittedly "small" company, why Mayo did not inquire about it during this conversation.1° And, if the Respondent really objected to Spangler's overstaying the 3- or 4-day leave apparently approved by Cook," it clearly missed an opportunity to caution Spangler at this time when, according to its understanding, she had already overstayed a week. Actually we think it evident on this record that the Respondent knew that Spangler had requested a 2- to 3-week leave, and seized upon the convenient informality of the arrangement as a pretext for ridding itself of this well-known CIO adherent. 3. We affirm without comment the Trial Examiner's findings that the Respondent Company violated Section 8 (a) (4) and (1) of the Act when, after learning that they did not intend to withdraw charges,n it reinstated Ruby Hobbsn and Evelyn Russell on September 26, 1950, at a lower rate of pay than they had been earning. 4. We concur in the Trial Examiner's finding that the Respondent Company violated Section 8 (a) (3) and (1) of the Act when, on September 25, 1950, it discharged Annabell Woolen for refusal to join the Respondent Union, and cor- relatively, his finding that the Respondent Union violated Section 8 (b) (2) and (1) of the Act when it prematurely 19 in justification of the discharge the Respondent Company submitted a copy of an unem- ployment compensation decision stating that Spangler 's conduct indicated a "willful disregard of her employer's interest" and laying stress upon her June 30 return to Kansas City without notifying her employer when she would return to work . The evidence upon which that finding was made is not in this record. On the record before us we attach no such significance to this occurrence. 2o in its brief the Respondent Company states that "Alma Lou" Cook bad no authority to grant leave, citing as a reference "Elizabeth" Cook's testimony that she, Elizabeth. had no such authority. n The complaint also alleged 8 (a) (4) violations as to Nadine Ring and Annabell Woolen. The Respondent company moved to strike the allegation as to Ring because her charge was not filed until September 27, the day after her reinstatement . We hereby grant this motion to strike. Although the Trial Examiner did not specifically pass upon said motion, he did find only an 8 (a) (3) and 8 (a) (1) violation as to Ring. We affirm his finding (I. R. footnote 58) that Ring's reinstatement at a lower rate of pay after a discriminatory discharge was discrimination in itself within the meaning of Section 8 (a) (3) and 8 (a) (1) of the Act. As to Woolen, we think the Trial Examiner properly concluded that Attorney Brown's conversation about getting her job back was not meant to suggest a withdrawal of charges except on the basis of a formal settlement approved by the Board. Hence we likewise do not find an 8 (a) (4) violation as to her. n We have already affirmed the Trial Examiner's 8 (a) (3) finding as to Hobbs. INJECTION MOLDING COMPANY 645 demanded Woolen be discharged for refusal to join. No exceptions having been filed to the Trial Examiner's finding that the Respondent Union did not discriminate as to Woolen when it refused her membership except at the $10 initiation fee, we likewise affirm that finding of the Trial Examiner. Concerning the remedy of reinstatement and back pay recommended as to Woolen, the Respondent Company urges the language of the United States Court of Appeals for the Third Circuit in N. L. R. B. v. Kingston Cake Co., 191 F. 2d 563, in support of its contention that reinstatement is not an appropriate remedy "for this formal defect . . . especially where the employer seems to have acted in good faith in assuming that he was subject to discharge." With due respect to the court's opinion in that case," we deem it our duty, under Section 10 of the Act, to determine what affirmative action will effectuate the policies of the Act. Reinstatement and back pay are, of course, the remedies which the Board has customarily ordered in cases of discriminatory discharge. The argument that the Employer and the Union did not intend to discriminate against an employee within the meaning of Section 8 (a) (3) of the Act, we think should have no application and constitute no basis for an exception to our general rule. Regardless of the intent of the party violating Section 8 (a) (3) or the "technical" nature of the violation, a discriminatory discharge interferes with the right of employees to engage in or refrain from union activity. The effects of such inter- ference must be remedied. The Act clearly provides a 30-day grace period from the effective date of a union-shop agreement before employees may be discharged for failure to become union members. Prior to the 1951 amendment to the Act, a Board certification following a union-shop authorization elec- tion was necessary to make a union-shop contract "effective," and by no stretch of the imagination could a tally of ballots cast at the election, with the attendant right to file objections thereafter, be considered the requisite certification. When a discharge is made 20 days, rather than 30 days, after the effective date of a contract- -in direct violation of the statutory mandate--we see no alternative to remedying the discrimina- tion in our customary manner if the congressional policy is to be made effective. Only by so doing will the employee discriminated against be returned, as nearly as possible, to the condition of employment in which she found herself absent discrimination, and only thus will her fellow employees be impressed with the true meaning of the statutory language. 5. We agree with the Trial Examiner that the Respondent's conduct in deducting from employee Field's pay, over his protest , a union fine for failure to attend a union meeting, constituted interference, restraint, and coercion within the meaning of Section 8 (a) (1) of the Act because it tended to n'Because of other factors in the Kingston cake case, the court's suggestion as to the recom- mended order was considered only briefly. See Kingston Cake Company, Inc., 97 NLRB 1445. 1451. 283230 0 - 54 - 42 6 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD force Field to attend union meetings against his will." More particularly we find that such conduct was in direct derogation of the right of employees under Section 7 of the Act to refrain from union activities "except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3)." The Trial Examiner termed the deduction of the one-dollar fine from Field's last paycheck an "illegal assessment." We need not pass upon the broad question whether such an assess- ment if authorized by an employee under a contract would be illegal. Here the bylaws of the Respondent Local Union provided--pursuant to authorization in the International Union's constitution for "proper fines and assessments "--that mem- bers must " stand assessed" 1 dollar for each meeting missed in the event of failure to attend 1 meeting per month. The August 15, 1950, contract between the Respondent and the Respondent Union calls for checkoff of dues, initiation fees, and "assessments if they are regularly part of membership dues."25 Apparently the authorizations secured pursuant to the contract followed this wording. There is no claim that "fines" or "assessments for failure to attend meetings" were specified in the checkoff authorizations. And it appears that Field signed a checkoff authorization, although he was not actually asked whether he had done so. We consider that a deduction from pay for failure to attend a union meeting is a sporadic penalty or fine, not an "assessment regularly part of membership dues" within the meaning of the checkoff provision of the contract and the authorizations. Consequently it was unauthorized by Field. In addition, Field objected orally to his foreman before the deduction was actually made. In its brief the Respondent argues that "a mere [contract] provision for check-off of assessments, without more" is not a violation of the Act. It emphasizes that its contract does not obligate it to "discharge or otherwise discriminate against" any employee except upon permissible denial or termination of membership within the meaning of Section 8 (a) (3). But this case does not involve a question of the permissible scope ?We note the uncontradicted testimony of Field that Grazda, a fellow employee and a union member, called Field's attention to the imposition of the fine , and told him he'd have to pay it or he, Grazda, "personally" would see that Field lost his fob. Although an 8 (b) (1) (A) finding against the Respondent Union would appear to follow logically from the 8 (a) (1) finding on this record, that question was not litigated and we therefore make no finding. The General Counsel did not include such allegation when, at the hearing, he moved to amend the complaint to include 8 (a) (1) and (3) allegations as to Field . We agree with the Trial Examiner ( I. R. footnote 95) that the General Counsel's 8 (a) (2) contention in its brief-- based on these same facts- -came too late, as the matter was not litigated at the hearing. We also agree with the Trial Examiner 's finding that the record is inadequate to support an 8 (a) (3) finding of discrimination against Field by reason of job assignment or constructive discharge . We see no basis for an 8 (a) (3) finding based on the possible discriminatory character of the fine deduction, as the record is silent concerning the general practice of the Respondent in making such deductions , and there is no question that the union- security contract itself is valid. 26 By the time of the hearing in this case the contract had been amended to provide for the checkoff only of "membership dues and initiation fees." INJECTION MOLDING COMPANY 647 of collective bargaining and whether such an assessment could be authorized, as the Respondent's argument implies .26 Instead it involved action taken by the employer beyond the scope of the agreement and checkoff authorization, against the em- ployee's expressed desire to the contrary. Such action, we find is calculated to discourage Field in the exercise of rights guaranteed him in Section 7 of the Act. In Union Starch & Refining Company" we discussed the right of employees to refrain from union activity and referred to the Section 7 provision as the "negative right not to join or assist labor organizations." 28 We also said that the 8 (a) (3) excep- tion in Section 7--because it is an exception--must be strictly construed to remove from the purview of Section 7 only those subjects "expressly" freed 'From it. After careful considera- tion we are not now prepared to say that Section 8 (a) (3), by providing for "membership" in a union as a condition of employment in appropriate circumstances, expressly requires, when a valid union-security contract exists, that employees shall participate in union activities in addition to tendering the necessary dues and initiation fees .21 We believe that the Sec- tion 8 (a) (3) proviso was intended to deal only with the limita- tions on discharge pursuant to union-security agreements. Beyond this we do not believe that it was intended to remove union-security contracts and their application from interpreta- tion in the light of Section 7. It is our considered opinion that the deduction of a fine by an employer for an employee's failure to attend a union meeting --a deduction not provided for in the union-security contract and not authorized by the em- ployee concerned--cannot be reconciled, with Section 7's guaranty of the employee's right to refrain from union activi- ties. CONCLUSIONS OF LAW We adopt the Trial Examiner's conclusions of law numbers 1, 2, 3, 8, and 9. In lieu of his numbers 4, 5, and 7 we reach the following conclusions of law: $ We are mindful of the fact that many bargaining contracts currently contain provisions for the checkoff not only of dues and initiation fees, but also of assessments and fines; that, at the time the 1947 amendments to the Act were under consideration, Congress was impor- tuned by a number of those appearing before the committees to leave the subject of checkoff to collective bargaining; and that the resulting legislation eliminated a provision in H. R. 3020 creating an additional 8 (a) (2) violation if union "dues , fees, assessments" and other levies payable to a labor organization were checked off by an employer except upon written consent of the employee revocable on 30 days' notice, and finally enacted the Section 302 provision creating, not an unfair labor practice violation , but a criminal violation for check- offs not in conformity with its provisions. See Salant & Salant, Inc., 88 NLRB 816, 818, where the Board determined that the effect of the 1947 legislation was to leave undisturbed the Board's preexisting criteria concerning violations of the broad proscriptions of Section 8, including, of course, Section 7. "87 NLRB 779, 784 foomote 12. rsSenator Taft (93 Cong. Rec. 7001, June 12, 1947) stated that the new, specific refrain language "merely makes mandatory an interpretation which the Board itself had already arrived at administratively," as well as complementing the new Section 8 (b) (1). 29See our discussion in Union Starch, above, p. 786, concerning the actual probabilities of participation because of the requirement that dues and initiation fees be paid, from which decision Member Houston and then Member Reynolds dissented. 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. By such discrimination the Respondent Company has interfered with, restrained , and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, thus engaging in unfair labor practices within the meaning of Sec- tion 8 (a) (1) of the Act. 5. By Respondent Company's conduct in acceding to the untimely and premature demand of Respondent Union for the discharge of Annabell Woolen on the basis of a union-shop contract not yet effective within the meaning of Section 8 (a) (3) of the Act, to the end that the Respondent Union could prematurely enforce its demands for union membership and encourage membership in the Respondent Union , the Respondent Company discriminated against Annabell Woolen in regard to the tenure of her employment, thereby violating Section 8 (a) (3) and (1) of the Act. 6. We renumber conclusion 8 as conclusion 6. 7. By deducting from the pay of Edward Field a union fine for failure to attend a union meeting , a fine not authorized to be deducted by the employee pursuant to the collective-bar- gaining contract , thereby discouraging Field in the exercise of rights guaranteed him in Section 7 of the Act, the Respondent Company has engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 8. We renumber conclusion 9 as conclusion 8. ORDER U on the entire record in this case and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that: 1. Injection Molding Company, its officers , agents, suc- cessors, and assigns , shall: (a) Cease and desist from: (1) Encouraging membership in International Handbag, Luggage, Belt and Novelty Workers' Union, Kansas City Plastic and Novelty Workers' Union, Local No. 161, AFL, or in any other labor organization of its employees , and discourag- ing membership in International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, UAW-CIO, or any other labor organization of its employees, by discriminatorily discharging them, or by discriminating in any manner in regard to their hire , tenure of employment, or any term, or condition of employment. (2) In any other manner interfering with , restraining, or coercing its employees in the right to self -organization, to form labor organizations , to join or assist International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, UAW-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing , and to engage in collective bargaining or other mutual aid or protection, or to refrain from any and all such activities except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a INJECTION MOLDING COMPANY 649 condition of employment as may be legally authorized under Section 8 (a) (3) of the Act, as guaranteed in Section 7 thereof. (b) Take the following affirmative action which will ef- fectuate the policies of the Act: (1) Offer to Emma Bandy,, Nettie M. Harper, Ruby Hobbs, Louise Lembke, Elsie Mary May, Nona Shaw, Mildred Spangler Ludwig,, Hazel Timmons, Nadine Ring, and Annabell Woolen, immediate and full reinstatement to their former or sub- stantially equivalent positions, without prejudice to their seniority or other rights and privileges. (2) Make whole each of the individuals next above named, including Evelyn Russell, in the manner set forth in "The Remedy" section of the Intermediate Report. (3) Upon request, make available to the Board or its agents, for examination and copying, all payroll records, social- security payment records and reports, and any other records necessary to analyze the amounts of back pay due. (4) Post at its plant in Kansas City, Missouri, copies of the notice attached hereto as "Appendix."90 Copies of suchnotice, to be furnished by the Regional Director for the Seventeenth Region, shall, after being signed by the Respondent Company's representative, be posted by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent Company to insure that said notices are not altered, defaced, or covered by any other material. (5) Notify the Regional Director for the Seventeenth Region, in writing, within ten (10) days from the date of this Order what steps Respondent Company has taken to comply herewith. 2. Respondent Union, International Handbag, Luggage, Belt and Novelty Workers' Union, Kansas City Plastic and Novelty Workers' Union, Local No. 161, AFL, its officers, agents, successors , and assigns, shall: (a) Cease and desist from: (1) Causing or attempting to cause Respondent Company or its agents , successors , or assigns to discriminate against their employees or prospective employees because they are not members in good standing in Respondent Union's Local No. 161, AFL, except insofar as it be done in accordance with Section 8 (a) (3) of the Act. (2) In any like or related manner restraining or coercing employees of Respondent Company, its successors and as signs, in the exercise of rights guaranteed in Section 7 of the Act, 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 Section8(a) (3) of the Act. (b) Take the following affirmative action which the under- signed finds will effectuate the policies of the Act: = 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." 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (1).Jointly and severally with the Respondent Company make Annabell Woolen whole for any loss of pay suffered by reason of the discrimination against her, and in the manner set forth in "The Remedy" section of the Intermediate Report. (2) Post immediately in conspicuous places about its business office, and at all other places where notices to its members are customarily posted, copies of the notice attached hereto and marked "Appendix A."31 Copies of this notice, to be furnished by the Regional Director for the Seventeenth Region, shall, after being duly signed by an official representative of Local No. 161, AFL, be posted by it immediately upon receipt thereof and be maintained for a period of at least sixty (60) consecutive days thereafter. Reasonable steps shall be taken by Local No. 161 to insure that said notices are not altered, defaced, or covered with any other material. (3) Notify Respondent Company, in writing , plus a copy to Annabell Woolen, that Respondent Union has no objection to Woolen's employment by Respondent Company. (4) Notify the Regional Director for the Seventeenth Region, in writing, within ten (10) days from the date of this Order what steps it has taken to comply herewith. Chairman Paul M. Herzog, dissenting in part only: I join in this decision, except in one minor respect. I can- not agree with my colleagues that the case of Annabell Woolen merits any remedy. Woolen, although given the opportunity to join the Union immediately before her discharge, refused to do so; it was clear that she was going to persist in that refusal despite the contract which required her to join. The Union and the Employer, apparently mistaking the tally of the ballots received by them after the union-security election for the actual certification, which they received 10 days later, dis- charged her 30 days after the tally of the ballots instead of waiting until 30 days after the certification. In those circum- stances, where no objections are received to the election and the certification follows as a matter of course from the elec- tion, I would not mechanically apply the usual 8 (a) (3) remedy, but would omit any remedy for so technical a violation.32 Member Abe Murdock, dissenting in part: On that portion of the decision finding that the Respondent Employer violated Section 8 (a) (1) of the Act by deducting a 1-dollar union fine from Field's pay for nonattendance at a meeting, imposed in accord with the Union's bylaws, I cannot agree with my colleagues. Because they find that the deduction was not specifically authorized by Field, they arrive at the conclusion that the Employer's cooperation in deducting the 31 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." at See N. L. R. B. v. Kingston Cake Co., 191 F . 2d 563, where the United States Court of Appeals for the Third Circuit questioned the propriety of our directing a similar remedy for an equally technical violation. INJECTION MOLDING COMPANY 651 fine pursuant to checkoff under a valid union-security contract cannot be reconciled with the latter half of Section 7 of the Act guaranteeing employees the right to refrain from union activi- ties. I cannot agree that the deduction was not authorized. I would find that the parties here (the Respondent Employer and the Respondent Union) acted reasonably in interpreting the con- tract checkoff clause in question--" assessments if they are regularly part of membership dues"--to include authority to check off a fine which the Local Union's bylaws provided for failure to attend meetings . Moreover, in my view the majority's position completely overlooks the true import of Section 7. Clearly that section does provide that an employee may refrain entirely from union or concerted activity, with Board protection in case of discharge except to the extent dictated by a union- security contract in conformity with Section 8 (a) (3) of the Act. But, just as clearly, it does not say that once an employee has joined a labor organization he may, within that organization, refrain from certain of its activities such as attendance at meetings to suit his convenience, and then look to this Board to redress his individual dissatisfaction because its rules have been applied to him. I The majority opinion refers to the Board's decision in Union Starch & Refining Company," and on the basis of language therein concludes that Section 7 is applicable to the interpreta- tion of union-security contracts, apart from the Section 8 (a) (3) proviso it contains. I, of course, agree that statutory excep- tions , such as the 8 (a) (3) proviso limitation on the rights guaranteed in Section 7, are to be construed strictly; my dis- agreement is with the majority's unwarranted enlargement of the overall scope of Section 7--an enlargement which says that employees who have become union members andwhose job tenure is in noway imperiled, may pick and choose their activi- ties within the union with Board protection. My colleagues have cited nothing to support this position, and I am aware of nothing to support it in the legislative history concerning the addition of the specific "refrain" language to Section 7 by the 1947 amendments to the Act, or in preamendment decisions by the a Similarly, in International Brotherhood of Teamsters, etaL, 94NLRB 1494, I dissented from the majority's position that a union which impaired a member 's seniority rights-- according to predetermined union rules--for failure to pay union dues promptly, violated Section 8 (b) (1) (A) of the Act. And I pointed out that individual members not wishing to abide by majority rule had the alternative of persuading their fellow members to their viewpoint. "In Union Starch & Refining Company, 87 NLRB 779, we were dealing with a discharge case, not a mere fine deduction by checkoff. We held that employees who were denied union membership or expelled from union membership for reasons other than nonpayment of dues and initiation fees were entitled to protection from discharge under a union-security contract so long as they were willing to pay periodic dues and initiation fees . We did not say that other qualifications uniformly imposed upon members to the dissatisfaction of individual members would entitle such individuals to the special protection afforded to Field by the Board in this case. 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board.35 There is no question in my mind that Congress never intended to provide in Section 7 the framework for such an un- warranted invasion of the internal affairs of a labor organiza- tion as my colleagues sanction here but, in the proviso to Section 8 (b) (1) (A), specifically precluded such inter. meddling. as Such decisions assume importance because of the Board's construction of the "right to engage" language of Section 7--before the Act's 1947 amendment--to include, impliedly, the "right to refrain." The absence of such preamendment decisions in the field of checkoff is perhaps explainable by the Wagner Act's total silence on the subject of checkoff. Indeed, as my colleagues admit, even after amendment the Act provides only criminal sanctions- -not unfair labor practice sanctions - - in connection With checkoffs. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT encourage membership in International Handbag, Luggage, Belt and Novelty Workers' Union. Kansas City Plastic and Novelty Workers' Union, Local No. 161, AFL, or any other labor organization, or dise courage activity in support of International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, UAW-CIO, or of any other labor organization, or discourage our employees from exercising the rights secured to them under the National Labor Relations Act, by means of discriminatory discharge or discrimination in any manner in regard to hire, tenure of employment, or any term or condition of employment. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, UAW-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL offer Emma Bandy, Nettie M. Harper, Ruby Hobbs, Louise Lembke, Elsie Mary May, Nona Shaw, Mildred Spangler Ludwig, Hazel Timmons, Nadine Ring, and Annabell Woolen immediate and full reinstatement to their former positions and make them whole for any INJECTION MOLDING COMPANY 653 loss of pay suffered , and we will make whole Evelyn Russell for any loss of pay she suffered. All our employees are free to become, remain , or to refrain from becoming , members in good standing of the above-named unions, or any other labor organization , except to the extent that such right may be affected by an agreement in conformity with Section 8 ( a) (3) of the Act. INJECTION MOLDING 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. APPENDIX A NOTICE TO ALL MEMBERS OF INTERNATIONAL HANDBAG, LUGGAGE, BELT AND NOVELTY WORKERS' UNION, KANSAS CITY PLASTIC AND NOVELTY WORKERS' UNION, LOCAL NO. 160, AFL Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT cause or attempt to cause Injection Molding Company , its agents , successors , and assigns, to discharge or otherwise discriminate against any of its employees because they are not members in good standing of the undersigned union, or in any other manner cause or attempt to cause the Respondent Company other- wise to discriminate against its employees in violation of Section 8 (a) (3) of the Act. WE WILL NOT in any like or related manner restrain or coerce Respondent Company ' s employees inthe exercise of their right to self -organization, to form, join , or assist labor organizations , to bargain collectively through repre - sentatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection and to refrain from any or all of such activities , except to the extent that such right may be affected by an agreement requiring member- ship in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL make Annabell Woolen whole for any loss of pay she may have suffered as a result of the discrimina- tion against her. INTERNATIONAL HANDBAG, LUGGAGE, BELT AND NOVELTY WORKERS' UNION, KANSAS CITY PLASTIC AND NOVELTY WORKERS' UNION, LOCAL NO. 161, AFL, Union. Dated ................ By..... .................. ..... .... ........ (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report STATEMENT OF THE CASE Upon separate charges duly filed by Emma Bandy , Nettie M . Harper, Ruby Hobbs, Louise Lembke, Elsie Mary May, Evelyn Russell, Nona Shaw , Mildred Spangler , I and Hazel Tim- mons , all of which charges were filed under date of September 6, 1950 ; Nadine Ring whose charge was filed under date of September 27, 1950 , Annabell Woolen whose charge in Case No. 17-CA-354 was filed October 18, 1950, and whose charge in Case No. 17-CB-38 was filed October 18, 1950 , individuals against Injection Molding : Company, of Kansas City, Missouri , herein called Respondent Company or the Company ; and.in Annabell Woolen's Case No 17 -CB-38 against International Handbag , Luggage , Belt and Novelty Workers' Union, Kansas City Plastic and Novelty Workers' Union Local No. 161, AFL, herein called Respondent Union or the Union, the General Counsel for the National Labor Relations Board, herein called, respectively , the General Counsel and the Board , caused the cases to be consolidated and issued a consolidated complaint dated September 28, 1951 , against said Respondent Company and the Respondent Union alleging violations of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act, within the meaning of Section 8 (a) (1). (3), and (4); Section 8 (b) (1) and (2); and Section 2 (6) and (7). Copies of the charges, the consolidated complaint , order consolidating the cases , and notices of hearing were duly served upon Respondent Company, Respondent Union, and upon all of the above-named claimants. With respect to the unfair labor practices , the complaint alleges in substance that: (1) From on or about March 7, 1950, and at various tunes thereafter , Respondent Company by its officers and agents interfered with, coerced , and restrained its employees by threatening said employees with loss of employment if they joined or remained members of the International Union, United Automobile , Aircraft & Agricultural Implement Workers of America . UAW-CIO, hereinafter referred to as the UAW-CIO, or engaged in other con- certed activities , and by offering employees financial benefits if they refrained from en- gaging in activities supporting the UAW-CIO; (2) Respondent Company by its officers and agents did , on or about the dates appearing after their names, discharge the following employees: Mildred (Spangler) Ludwig July 13, 1950 Emma Bandy July 25, 1950 Ruby Hobbs July 25, 1950 Louise Lembke July 25, 1950 Nona Shaw July 25, 1950 'At the time of the hearing Spangler gave her name as Mildred Spangler Ludwig, and is referred to in the record occasionally and at times by both or either surnames. INJECTION MOLDING COMPANY 655 Hazel Timmons July 25, 1950 Nadine Ring July 25, 1950 Nettie M. Harper August 8, 1950 Elsie Mary May August 23, 1950 Annabell Woolen September 25, 1950 2 (3) Respondent company by its officers and agents , after the dates appearing next to their names set forth above , failed and refused, and continues to fail and refuse , to reinstate the next above-named employees ; (4) said Respondent Company did by its officers and agents fail and refuse to reinstate Ruby Hobbs during the period from about July 25, 1950, to on or about September 26, 1950, Nadine Ring from on or about July 25, 1950, to on or about September 27, 1950 ; (5) Respondent did by its officers and agents reinstate or reemploy Nadine Ring, Evelyn Russell, and Ruby Hobbs on or about September 26, 1950, at a lower rate of pay than it formerly paid them because of said employees' refusal to withdraw unfair labor practice charges which said employees had filed with the Board; (6) Respondent Union by its officers and agents on or about September 16, 1950, and various times there- after , demanded that the Respondent Company discharge Annabell Woolen, an employee of said Respondent Company, because she was not a member of Respondent Union; said Respondent Company, pursuant to the demands of Respondent Union set forth above, did on or about September 25, 1950, discharge said Annabell Woolen because she was not a member of said Respondent Union and because of said Woolen's membership in and activities on behalf of the UAW-CIO; (7) on or about December 1, 1950, Respondent Company did offer to reinstate or reemploy Annabell Woolen, on condition that said Woolen withdraw the unfair labor practice charge which she had filed with the National Labor Relations Board, and did refuse to reemploy said Woolen because of her refusal to withdraw the charges which she had filed with the Board as aforesaid; and (8) by the acts above described, Re- spondent Company restrained and coerced its employees in the exercise of the rights guar- anteed in Section 7 of the Act in violation of Section 8 (a) (1), (3), and (4) and Section 2 (6) and (7) of the Act; and Respondent Union, by the acts above-described, in causing Re- spondent Company to discriminate against Annabell Woolen in violation of Section 8 (a) (3) of the Act, thereby restraining and coercing the employees of Respondent Company in the exercise of the rights guaranteed in Section 7 of the Act , thereby violated Section 8 (b) (1) (A) and (2) and Section 2 (6) and (7) of the Act. The Respondent Company's answer, duly filed, admitted the corporate character of Re- spondent Company; the fact that it is engaged in the manufacture of plastic products in its plant located in Kansas City, Missouri; that it annually purchases raw materials and equip- ment valued in an amount in excess of $100,000, and annually makes sales of manufactured products valued in excess of $100,000 and, that as to both purchases and sales, approxi- mately 75 percent of the former represents shipments from its Kansas City, Missouri, plant to'poinis outside the State; and as to both the Unions involved herein, each are labor organizations within the meaning of Section 2 (5) of the Act; and further alleges that Annabell Woolen was terminated for failure to tender her initiation fees uniformly required as a condition of acquiring and retaining membership in the International Handbag, Luggage, Belt and Novelty Workers' Union pursuant to a valid union- shop provision in a contract between Respondent Company and said Union. Respondent Union's answer denies the commission by the Union of the alleged unfair labor practices set forth in the complaint. Pursuant to notice the hearing was held between October 16 and October 27, 1951, at Kansas City, Missouri, before the undersigned Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel and Respondent Company were represented by counsel and the Respondent Union by an international representative. All participated in the hearing, were afforded full opportunities to be heard, to examine and cross-examine witnesses , and to introduce evidence bearing upon the issues . All parties were afforded an opportunity to argue before the undersigned upon the record. Counsel for the General Coun- sel and for the Respondent Company availed themselves of such opportunity. Parties were afforded an opportunity to file briefs with the undersigned and briefs were files by counsel for the General Counsel and counsel for the Company, which have been duly considered by the undersigned. Upon the entire record in the case and from his observation of the witnesses, the under- signed makes the following: 2 Evelyn E. Russell, whose charge alleges her discriminatory discharge as of July 28, 1950, was not listed with other claimants at this point. Her case was fully litigated as will appear below. 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT L THE BUSINESS OF THE RESPONDENT COMPANY Injection Molding Company , Respondent Company herein, is a Missouri corporation engaged in the manufacture of plastic products at a plant located in Kansas City . Missouri. In the course and conduct of its business , Respondent Company annually purchases raw material and equipment valued at an amount in the excess of $100 ,600, of which approxi- mately 75 percent represents shipments received by it from sources outside the State of Missouri . During the same period , the Respondent Company sold plastic products valued at an amount in excess of $ 100,000, of which approximately 75 percent represents shipments from its Kansas City, Missouri , plant to points outside the State. 3 IL THE LABOR ORGANIZATIONS INVOLVED International Union, United Automobile , Aircraft & Agricultural Implement Workers of America, UAW-CIO, hereinafter referred to as UAW -CIO, and International Handbag, Luggage, Belt and Novelty Workers' Union, Kansas City Plastic and Novelty Workers' Union, Local No. 161, AFL, are labor organizations within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The discriminatory discharges; interference, restraint, and coercion 1. Background ; events antedating and leading up to the discharges Prior to January 1, 1950, the Respondent Company had a collective-bargaining contract with Local 710, International Union of Mine . Mill and Smelter Workers, C .LO., hereinafter referred to as Mine-Mill. The last contract between Respondent Company and Mine-Mill was executed under date June 21, 1949, and was amended by three different supplements thereafter , the last of which was executed December 29, 1949. and each supplement was made retroactive to July 1, 1949.4 By its terms the contract was to remain in full force and effect until July 1 . 1950, and for successive yearly periods thereafter , unless 60 days' notice prior to annual expiration date be given by either party of a desire to modify or amend the agreement, "and in such case, the agreement shall continue in full force and effect until superseded by a new agreement." The record, without dispute, discloses that on February 15, 1950, the Congress of Indus- trial Organizations , hereinafter referred to as CIO, revoked the Certification of Affiliation of Mine-Mill and expelled it from the CIO; on this same date, February 15, Don Montgomery, chief of the UAW-CIO's Washington, D. Q. office, by telegram informed Luther Slinkard, UAW-CIO area director at Kansas City, Missouri , of such expulsion; Slinkard in turn noti- fied Respondent Company by letter on February 15 of such expulsion ; and under date February 17 forwarded a copy of Montgomery 's telegram, above-referred to, to the Company. Fol- lowing the expulsion of Mine-Mill from the CIO, as above set forth , and prior to February 15, 1950, the UAW-CIO and Local No. 132 thereof, succeeded in getting a substantial number if not the majority of the members of Local No. 710 of Mine-Mill to join Local No. 132, UAW-CIO. Under date of February 15, 1950 , Luther M. Slinkard , as UAW-CIO area director, by letter informed the Company that a majority of its employees had designated the UAW-CIO as their sole bargaining agent and requested that the Company advise whether it would voluntarily recognize the UAW -CIO as bargaining agent of its employees , notwithstanding that Mine-Mill contract , by its terms, did not expire until July 1, 1950. The Company made no reply to Slinkard 's letter; and on February 16, Slinkard filed an RC petition with the Regional Director for the Board' s Seventeenth Region. William K. Archer , president and manager of Respondent Company, was absent from the plant at the time UAW-CIO, on behalf of Local No. 132, demanded recognition . Archer returned to the plant early in March and within a day or two was called upon by John E. SFacts found in this section are based upon allegations in the complaint admitted by the answer of Respondent Company. 4Certain portions of this contract will be further referred to hereinafter. INJECTION MOLDING COMPANY 657 Rinkenbaugh, international representative of UAW-CIO, and Don Hayward,6 then president of Local No. 132, UAW-CIO, who requested recognition of the UAW-CIO as bargaining representative of Archer's employees. According to Archer, he told the two that the matter should be determined by the Board election. 6 At a Local 132 meeting held during February, Elsie Mary May? was elected union stew- ardess for the production department and Mildred Spangler was elected stewardess in the bottle room. Following her election as stewardess, May was active on behalf of Local 132; she passed out authorization cards and buttons ; and collected signed application- for- membership cards. On or about March 4, 1950, May had an altercation with Foreman Robert Petrovic of the production department which had to do with showing another employee how to operate May's machine. After some argument was had between May and Petrovic, the latter sent May home.8 Over the weekend, May wrote up her version of the dispute with Petrovic and on Monday morning, March 6, following, turned the letter in to the com- pany office. Archer, who had been absent from the plant, returned on that day. Later in the day, May was called to the office and in the presence of Alex Petrovic (Robert Petrovic's brother), Bill Banken, and Everett Epling was discharged by Archer. After the foremen had left the office, May suggested that Archer reconsider his act in discharging her and let her know the results thereof. In this connection, May testified: Q. Anything further said' A. Yes. Mr. Archer said, "Well, Elsie, we have a lot of bad tickets on you, you have put out a lot of bad work, and I think we'll just let you go." So the foremen all get up and walked out of the room, single file, and I stand there in the door room, [sic] and I said, Mr. Archer, "I think you are making a mistake," I says, " I have never been in this office before until I was a steward in all the years I have worked here, I have stayed out, but thought it was my duty to come and talk to you," and he says, "Well, what about this Union? Come over here and sit down and tell me about it." So we went back and sat down and talked. Q. Go on. What was said? A. And I said, "Well, at the February meeting I was elected steward in the pro- duction department, and Mildred Spangler was elected steward in the bottle room," and he said, "Well, why don't you form a little union of your own?" And I said, "Well, there has always been so few of us here that we never did give it very much thought." So we just sort of stopped talking after that, and Mr. Archer said that he would can me tomorrow. Q. About what? A. Because I had said again, "Well, Mr. Archer, won't you think it over or won't you talk to the foremen about me," and he said "Yes," thathe would talk to the foremen, and that he would call me tomorrow morning. Q. Did you return to work the next morning? A. No, I didn't. Q. Will you explain that? A. Well, the next day, before noon - - Q. (Interrupting) What was the normal hour to punch in in the morning? A. 7:30 to 3:30. Q. Did you punch in at 7:30? A. No, I didn't go to work the next day. Q. Why not? A. He was supposed to call me at my home the next day Q. But did you return to the plant the next day? A. Yes, I did. I returned with Pete Rinkenbaugh and Don Hayward. Q. Who are they? A. They are International U.A.W.-C.LO. men. Q. I see. And you and Mr. Rinkenbaugh and Don Hayward conferred with Mr. Archer, did you? A. Yes. 6The record indicates that Hayward had been an official of Local No. 710, Mine-Mill, prior to its expulsion from the C.I.O. 6 Neither Rinkenbaugh nor Hayward were called as witnesses herein. 7May's alleged discriminatory discharge as of August 2, 1950, is discussed below. 8It was then after 11, p. m. and May's shift had ended. 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. And as a result of that conference it was decided that you would return to work, wasn't it? A. Well, in a way. At noon time -- MR BROWNE: Pardon me, I didn't get the witness ' answer. (Answer read) Q. (By Mr. Sacks) DidFyou thereafter 'return to work? A. Do you mean that same day? Q. Well, did you rn' to work the same day? A. No, not the same day. Q. Did you return to work the following day? A. Yes. Q. Do you remember the day when you returned to work after your one day of not working? A. March 8. On March 8 , the day of Elsie May' s reinstatement as above set forth , Archer called a meeting of all production employees and addressed them . Among other things, he suggested that the employees form a company or independent union ; sometimesiIn the te$titiiony referred to as I. M. Co. Union. On this occasion Archer stated that the UAW-CIO had no part in Elsie May's reinstatement on March 8. With reference to the organization of an independent or a company union , Archer testified: Q. Mr. Archer, in the month of March 1950 did you call a meeting of the employees? A. Yes, sir. Q. Did you have more than one meeting? A. Yes, sir. Q. What did you say at the first meeting in substance? A. Well, in substance, i 'told the employees that I would recognize any union they wanted , that they voted into the plant , and I would not recognize a union unless a union election was held. Q. Did you read that speech or did you give it extemporaneously? A. It was extemporaneous. Q. Did you say anything else at that meeting that you now recollect? A. I don' t recall the entire speech. Areher testified , however , that at this first speech, he did not say that before he would recognize the UAW-CIO he would close the plant, or words to that effect. Q. Did you say you had a second meeting of the employees , is that correct? A. That is correct. Q. What took place at that meeting? TRIAL EXAMINER WARD: Which one is that with reference to time? MR BROWNE: Thank you, sir. Q. (By Mr. Browne) How long after the first meeting did the second meeting take place? A. I'd "say about a week. Q. What took place at that meeting? A. I again addressed the employees and told them that Mr. Rinkenbaugh had talked to me again , that I wouldn't have anything shoved down their throat, I would be guided by a decision they made at an election. Q. Did you say anything on this occasion about an independent union? A. I told them that if they could not settle their differences in the union, among the unions , that an independent union might be the answer. Q. Did you promise them any benefit if they formed an independent union? A. I did not. Q. Did you threaten them with any reprisal or discharge or anything like that if they did not form an independent union? A. No, sir Q. Did you tell them that before you dealt with the UAW-CIO you would close down the plant, shut the doors or move away or words to that effect? A. I did not. While the foregoing is substantially all the testimony given by Archer with reference to his comment or suggestion as to an independent or a company union, certain employees present at the 2 March meetings testified to different versions of the events . Mildred Ludwig INJECTION MOLDING COMPANY 659 testified that she was present at the meeting on March 8 , the day on which Elsie May re- turned to work as is elsewhere referred to herein , and testified that Archer spoke for about 20 minutes and had 3 pages to read . 9 Ludwig testified: Q. Will you tell us what you recall of what he said? A. Well, he said that he didn't know why that we wanted to belong to the UAW-CIO, that they were automobile workers and not plastic and he said that they really weren't interest in us any way, we were such a small plant, and being we was a small plant why couldn't we just elect our own officers in there, and if we had any grievances we could take them up with the foreman or forelady, and if we couldn't settle them then, why, his door was always open to us kids and we could come in and talk to him, and he also mentioned that cold steel which you couldn't eat. Q. Do you recall anything else he said about that? A. No, I can't right at the present . He also said that he would close his doors before he would let the UAW-CIO come in and tell him how to run his business , that he would not have them in there. Q. Do you recall anything else he said? A. Well, he said the union did not give Elsie May back her job , that he gave it to her himself. Ludwig further testified that Forelady Dorothy Rodgers , Alex Petrovic (a salesman and not a supervisory employee), and Everett Epling , a foreman, were each asked by Archer if they had anything to say. As to Forelady Rodgers, Ludwig testified that she stated that "she had been very happy in the employment of Mr. Archer and he had always been fair to her." Alex Petrovic stated "he didn't know why we wanted to belong to the UAW-CIO, that they had never--he felt like all he had ever done was pay his dues when he formerly belonged to it." And that Epling stated, "I don't know,why in the hell you want to belong to the UAW CIO when they never did a damn thing for me when I belonged to them." Emma Ruth Bandy testified she was present at a speech by Mr. Archer the first part of March 1950 . She testified: Q. Do you recall what Mr. Archer said in his speech? A. Mr. Archer said he wanted us to know that Pete Rinkenbaugh didn't get Elsie May her job back, that he gave it back to her out of the goodness of his heart. Q. Do you recall anything else Mr. Archer said? A. He said that the UAW was not coming into the Injection Molding Company, that he would close his doors first. Ruby Eileen Hobbs testified: Q. Was there ever any occasion when any of your supervisors or company officials spoke to you about any union? A. Yes. Q. Who spoke to you and when, if you recall? A. Well, Mr. Archer made a speech about a company union. Q. Do you recall when this speech took place? A. In March. Q. What year. Last year? A. Yes. Q. Can you recall what Mr. Archer said? A. Well, it was about putting Elsie May back to work, that he had put her back to work on his own will, and that he would like for us to all work together , that he would make up a contract for all of us if we would work together, and this contract would be made out that we would receive our wages , our raises , and our vacations . That is about all I can recall in the speech. 10 9While Ludwig states that Archer read the speech on March 8 , the undersigned is of the opinion she is in error as to the time that a speech was read, and that the speech the week after March 8 was one at which Archer read from a prepared draft. 10 While Ludwig, Bandy, and Hobbs were not too certain as to which statements Archer made at which March meeting above- referred to, the undersigned credits their testimony as having been stated at one of such March meetings ; and therefore does not credit testi- mony of company witnesses in conflict therewith. As is set forth below, Archer published notices attempting to "disestablish" the independent or company union and thereby tacitly admitted his attempt to organize it. 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Following the March 8 speech, a petition was circulated among employees for the forma- tion of the so-called company union, but insofar as is disclosed by the record it met with little or no success . Thereafter , an effort was made to enlist the employees to join the International Association of Machinists , hereinafter referred to as LAM , without any affirm- ative results being disclosed by the record herein. The record discloses , however , as to the IAM union , that Respondent Company ' s forelady in the bottle room , Dorothy Rodgers , actively aided such union' s agent, Angie Curtis. Rodgers , in part testified. Q. Do you recall when Angie Curtis was soliciting on behalf of the LA.M.' A. I knew she was soliciting , but I wouldn't say it was I.A.M. I would say it was different than the U.A.W. Q. Did she ask you to see certain employees? A. Yes, she asked me if I would send them out and I told her I would. Q. And did you send them out? A. I did. Q. And that was during working hours, too? A. Yes, sir. Q. You gave them relief (replacements) to see Angie Curtis? A. Yes, sir. I would rather state that I gave them permission to see Angie Curtis. is Emma Ruth Bandy , in this connection , testified: Q. Did you ever have any conversation with anyone other than Mr . Archer who represented the Company regarding any union? A. Yes , Dorothy Rodgers. Q. When did Dorothy Rodgers speak to you? A. It was about a week or ten days before we went out on strike. Q. Do you recall what she had to say9 V A. Well, she came to us and told part of us girls that we should go out and talk to Angie Curtis in the lunchroom. - Q: At the direction of Dorothy Rodgers , did you go out and talk to Angie Curtis? (Emphasis supplied.) V - A. Yes. is Q. Tell the Examiner what Angie Curtis had to say to you? A. Angie Curtis wanted us to sign cards for the A. F. of L. Machinists Union, Local 92. Q. You say Dorothy Rodgers told you to go and speak to Angie Curtis, is that correct? A. Yes, sir. Q. Did you go alone or with someone else to speak to Angie Curtis? A. Dorothy told us for Nadine Ring and me to go. 0 Q. (By Mr. Hoffman) Did you see anyone else at or about the time you went out to see Angie Curtis? A. Could I answer it in a different way? TRIAL EXAMINER. You don't understand the question? ii The record discloses that Curtis subsequently became secretary- treasurer of Re- spondent Union. 12 Rodgers further testified that she gave employee Al Cottman permission to hand out U.A.W. cards and gave Elsie May permission to talk to Mildred Spangler , who "was sug- gested as the U.A.'s stewardess in the bottle room ... " during working hours . The record discloses that May and Spangler had each been elected as a UAW-CIO stewardess at the February meeting of such Union. isAs is quoted hereinabove. Rodgers testified that she, at Curtis' request, sent employees to Curtis in the lunchroom where the latter solicited them to join a union other than the UAW-CIO. On direct examination of Rodgers , Attorney Browne prefaced a question as follows: "All right, now, Emma Bandy states that after she was given permission to see Curtis about joining this I.A.M. and etc.," thus implied that Bandy had requested such permission. Such implication is not borne out by the facts inasmuch as Rodgers' direction to Bandy amounted to an order by the former as Bandy's forelady and not a request by Bandy. INJECTION MOLDING COMPANY 661 Q. Do you understand the question? A. I understand the question , but I can't answer it like that Q. Did you see anyone else or didn't you? A. Dorothy told us when two came back in for us to leave our machines and to go., is that all right? MR BROWNE : Go ahead. Q. (By Mr. Hoffman) Do you recall what you said to Angie Curtis9 A. I told her I belonged to the C. LO., that I didn't want to join any other union. Q. After this conversation with Angie Curtis, what did you do? A. Angie kept trying to tell us what a good union it was , and that we would benefit by it, but we couldn't see it that way, so finally Dorothy told her to let us go back to our own machines. Q. Did anyone speak to you after you went back to your machines? A. Yes. Q. Who spoke to you? A. Dorothy Rodgers. Q. Did she speak to you once or several times after you returned to your machine? A. She came back several times and talked to me. Q. Tell us as near as you can remember what Dorothy Rodgers said to you when she came back to your machine after you had talked with Angie Curtis? A. She asked me if I wanted another chance to go out and sign up with the A .F.L., and I told her no, I didn't think so , and she went away and she came back again and she said, " Emma , do you want another chance to go out and talk with Angie," and I told her no. So she came back and said , "You know, a lot of girls are going to be out of a job over this C. I.O. trying to get in here ," and I said, no, I didn't know that they were. Q. Is that all you can recall of your conversation? A. No, she said , " what will you do for a job when you lose out," and she said, "I'll give you another chance. Emma , to go out," and I told her no, I didn't want to. She said, "You girls don't want the A. F. of L., you didn't want a company union, what do you want," and she was pretty angry and she walked away. In this same connection Ruby Hobbs testified that some 2 or 3 weeks before the strike of April 15, 1950 , Rodgers told her to go and talk with Angie Curtis. Hobbs testified: Q. Tell the Examiner just what went on, what Dorothy Rodgers said to you and what she told you to do , if anything? A. Dorothy Rodgers came to my machine and told Mildred Spangler (Ludwig) and I to go out in the lunchroom and speak to Angie Curtis. MR BROWNE. Just a minute. Q. (By Mr. Browne) Told who to go out? A. Mildred Spangler. Q. (By Mr. Hoffman) Do you want to continue with what occurred? A. Yes. We went out in the lunchroom and Angie Curtis handed us a card and asked us if we would sign with their union and it was the LA. M. union. Q. (By Trial Examiner Ward) I.A.M.? A. Yes. And Mildred Spangler spoke up and said, " Well, what happened to the com- pany union," and Angie Curtis said that the girls didn't seem to want a company union, so she asked us if we was going to sign up. And I said I had signed up for one card, and that was C.LO.-U.A.W., and that was good enough for me, and I went back to my machine and went to work , except Dorothy Rodgers did come in once when we were in the lunchroom talking to Angie Curtis, and she - - TRIAL EXAMINER. Off the record. (Discussion off the record) TRIAL EXAMINER WARD: On the record. Proceed 14 Evelyn Russell stated that she heard a conversation between Rodgers and Bandy. She testified: Q. This was a conversation between whom and who else? A. Dorothy came up to Emma , and I don't know what all she had said. Q. What did you hear there? 14 The questions next following in the record had to do with matters other than the solici- tation by Angie Curtis of the employees to sign with the IAM. 283230 0 - 54 - 43 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. What I heard Dorothy say was, you girls don't want a company union and you don't want an A. F. of L., and she mentioned another one, I don't know what one it was because there was so many, and she said what do you girls want, and she looked at me and Emma both when she said it, and she said the C.LO. is not getting in here, and then she left the room is While Rodgers categoricaly denied the testimony of Bandy and Hobbs in this connection. and could not remember making such statements in Russell's presence, the undersigned does not credit Rodgers' denials or alleged loss or lack of memory in the instance next above referred to and finds that the statements of Rodgers as testified to by Bandy , Hobbs, and Russell were made at the times and places substantially as testified to by them. On or about March 23 , 1950,16 the Respondent Company discharged employees Lillian Nagle and Annabell Woolen, machine operators . On the following day, March 24, Rinkenbaugh filed charges with the Board' s Regional Office at Kansas City, Missouri, on behalf of Local No. 132, UAW-CIO, alleging such discharges to have been discriminatory ones ; he further charged that on or about March 6, Respondent Company "dominated the formation and administration of, or contributed to the support of the L M . Co., an independent union; and on March 16, 1950, and since such dates , the Company is [sic] also assisting and contrib- uting to the support of" the IAM. On March 26 Rinkenbaugh filed an amended charge wherein such charge was enlarged by adding an allegation of Respondent Company ' s refusal to bargain with UAW-CIO on February 15 ; and by threats to close its plant in the event UAW -CIO representation in the plant and by other acts and conduct , interfered with, restrained , and coerced its employees iii the exercise of the rights guaranteed in Section I of the Act, all in violation of Section 8 (a) (1), (2), (3), and (5) of the Act. Under date of March 28 , Linus Wampler , as "Administrator," by letter informed the Respondent Company that on that date John Clarke, international president of Mine-Mill, had in his official capacity informed Wampler of the fact that Local Union No. 710 Mine- Mill officials had vacated their respective offices as president , recording secretary, and financial secretary ; and of Wampler's appointment as administrator to succeed to the duties of the resigned officials of Local No. 710 , together with the books , records, funds, and any other property of International Mine -Mill or to Local Union No. 710. Wampler further and in part advised Respondent Company that with respect to the then existing agreement between Local No. 710 and Respondent Company, that: You are further advised that the undersigned is solely and fully authorized to exercise the powers of office heretofore exercised by said aforementioned persons, and par- ticularly to receive from you said amounts of money due under said agreement. On or about April 17, the UAW-CIO and Local 132 called a strike against the Respondent Company. On April 21, the Respondent Company filed charges with the Board against said labor organizations alleging that they had engaged in and were engaging in unfair labor practices within the meaning of Section 8 (b) of the Act. Harry L. Browne, counsel for Respondent Company and a principal witness, testified that he had been employed by Respondent Company since April 13, 1950; from such date to the date of the hearing herein, namely October 24, 1951, he has continuously represented the Respondent Company in labor relations matters, having met with and conferred with UAW-CIO international and local officials on those occasions when the UAW-CIO unfair labor practice charges filed against Respondent Company, referred to herein above, and the unfair labor practice charges filed against UAW-CIO by Respondent Company. The record discloses that during the course of his employment as counsel for the Respondent Company, he drafted documents, agreements , and notices to all the employees, in which he invariably included statements to the effect that employees had the right to self-organi- zation, engage in concerted and union activities and/or to refrain from such; and that the Respondent Company would not interfere with, restrain, or coerce its employees in the exercise of such rights. Under date of May 3, 1952, while the strike was still in progress at the Respondent Company ' s plant, Browne prepared and Respondent Company posted a notice as follows: is When Rodgers was asked, "Did you make such a statement as that?", she replied, "I never remember making such a statement as that." i6Unless stated otherwise, all events referred to herein occurred in 1950. INJECTION MOLDING COMPANY 663 NOTICE TO ALL EMPLOYEES May 3, 1950 All our employees have the right to self-organization, to form, join, or assist labor organizations whether it is the U.A.W.-C.LO., or the A. F.L. or any other labor organi- zation 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 Our employees also have the tight to refrain from all of such ^^ activities . We will not interfere with, restrain , or coerce our employees in the exercise of these rights. This Company will not dominate or interfere -with formation or administration of the LM. C.O. independent Union arid , insofar - as-such Union is concerned , it is dises- tablished and no longer in existence : This-:Company will not-assist or contribute to the support of the International Association -of Machinists or any other labor organiza- tion. (Emphasis supplied.) We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against employees because of a membership in or activity on behalf of any labor organization. No one is authorized to speak for this Company on labor matters except the under - signed. Our supervisors have been instructed accordingly . If there are any violations of these instructions , I would appreciate your telling me Thank you Injection Molding Company Injection Molding Company By ................................... Under date May 1, 1950, on a letterhead of International Union--Region No. 5, reading as follows: UNITED AUTOMOBILE AIRCRAFT AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, LUTHER M. SLINKARD, AREA DIRECTOR OF UAW-CIO Slinkard wrote Respondent Company as follows: Injection Molding Company Attn: W. K. Archer 3823 Independence Avenue Kansas City 1, Missouri Gentlemen: Re: Contract Negotiations UAW:CIO, Ldcal 192 Enclosed is copy of formal notice which is submitted in accordance with the require- ments of the Taft-Hartley Act and Paragraph No. 52 i7 of the current agreement covering all of the employees of your Company which is subject to re-negotiations as of July 1, 1950. Please give written indication to the undersigned as to ilie date, time and place when you will be available for negotiations within the immediaie future. Yours very truly, cc. Russell Lerner, UAW, Reg. Dir. /s/ Luther M. Slinkard Luther M. Slinkard Area Director 17 Paragraph No. 52 referred to above has reference to a paragraph contained in the Mine- Mill contract between the latter and Injection Molding Company executed under date of June 21, 1949. 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Enclosed with the foregoing letter was a document entitled "60-DAY NOTICE TO EM- PLOYER," which requested a meeting by the Respondent Company with the area director of UAW-CIO for the purpose of negotiating terms of a "modified contract." On May 2 , Harry Browne , as attorney for the Injection Molding Company , answered the Slinkard letter and request, stating in part: Since the U.A.W.-C.I.O., Local 132 is neither party to the contract concerning which you speak or is it the collective bargaining representative of the Company ' s employees, we must respectively decline to meet or negotiate with you as you request. I might add that the U.A.W.-C.I.O. itself has already acknowledged these facts by the filing of its petition for representation with the National Labor Relations Board on February 16 , 1950, Case No. 17 -RC-675 Moreover , that petition states that the recog- nized or certified bargaining agent is the International Union, Mine , Mill and Smelter Workers' Local # 710. is Under date of June 2, 1950 , the Respondent Company by its counsel and the UAW-CIO, by Rinkenbaugh, signed an agreement in connection with a settlement of the strike, which provided in part , as follows. The strike now in progress at the plant will be discontinued The Company will rein- state all strikers including Annabell Woolen, without discrimination, provided, however, Lillian Nagle is not to be reinstated. Nagle and Woolen will receive one-half back pay from March 23, 1950, to April 17, 1950, at their regular hourly pay, less social secu- rity and withholding tax. The Union will withdraw its charges against the Company filed with the National Labor Relations Board and docketed in Case No 17-CA-275. The Company will withdraw its charges against the Union filed with the National Labor Relations Board and docketed as Case No. 17-CB-28. a a a a a a a a . . . the Company and the U.A. W. -C.I.O. both agree that the employees have the right to self-organization, to join, form , or assist labor organizations , including the U.A.W.- C.I.O., or any other labor organization , to bargain collectively through representatives of their own choosing , and to engage in concerted activity for the mutual aid and pro- tection , or to refrain from any or all such activities . It is understood that neither the Company, the U. A. W. -C. LO., nor any other labor organization , has the right to inter- fere with, restrain , or coerce employees in the exercise of these rights . It is also understood that the Company will not dominate or assist the formation and administra- tion of the I.M. CO. Independent Union and, and insofar as such union is concerned , it is disestablished and no longer in existence. (Emphasis supplied.) A copy of this agreement will be posted in conspicuous places in the plant Attached to the foregoing was a further signed statement referred to as a "supplement" dated June 2, 1950, which, in part, stated: (General Counsel's Exhibit No. 4.) Lay-offs, if any, preceding the election will be based on seniority. 19 (Emphasis supplied) The foregoing agreement provided for a consent election to be held by June 30, 1950, unless the parties agreed on an earlier date. As provided by such agreement, the UAW-CIO withdrew its charges in Case No 17-CA-275; and the Company withdrew its charges in Case No. 17-CB-25. Following a conference of the parties to such agreement with a field examiner of the Board on June 8, the Regional Director on that day notified the parties that the charges in each case had, with his approval, been withdrawn without prejudice. Pursuant to strike-settlement (General Counsel's Exhibit No. 8) agreement of June 2, referred to above, the strikers returned to work on June 5 at which time Archer again is The document above described will be referred to further in the conclusions set forth hereinafter. i9 The record discloses that Respondent Union filed a petition for certification of repre- sentatives on May 1, 1950, which was docketed as Case No. 17-RC-761. INJECTION MOLDING COMPANY 665 addressed all the employees reading from a prepared speech in which he set forth "the Company's labor policy" which was to the effect that no organizational activity would be permitted on company property during working hours, and, as was the case in the settlement agreement of June 2 (General Counsel's Exhibit No. 4) and the posted notice of May 3, each hereinabove referred to, the employees were advised, in the language of the Act of their rights to engage in union or concerted activities or to refrain therefrom. (Emphasis sup- plied.) Louise Lembke was employed by Respondent Company on October 26, 1949, and assigned to the bottle assembly room at her shift. The afternoon and night or 11 p. m. to 2 a. m. shifts were supervised by Elizabeth and Elma Lou Cook, sisters. They rotated their shifts of supervision. When first employed, Lembke joined Mine-Mill and in January 1950 joined UAW-CIO; joined in the April 17 strike and "walked the picket line regularly." When she returned to work after the strike she was assigned to the so-called "midnight" shift and thereafter requested Dorothy Rodgers, floorlady and supervisor of the bottle department, to be changed to the afternoon shift She informed Rodgers that employee Hazel Timmons, m who was on the afternoon shift, was agreeable to exchanging shifts with her, and asked if Rodgers had any objections. Rodgers replied that she was making no changes at that time. Nona Shaw was employed during the first week of February 1950, and like Lembke was assigned to the bottle assembly department. She requested assignment to the 7 a. m. to 3 p. in. shift, but agreed to take the 3 p. m to 11 p. m. shift, and indicated that she would not work the 11 p m. to 7 a. m. shift. Shaw joined the UAW-CIO, joined in the April 17 strike, and participated in strike activi- ties. While on the picket line Archer asked her to return to work. She told him she could not cross the picket line and did not She returned to work after the strike, and was assigned to the "midnight" shift. On the first night's work, Shaw and Lembke were assigned to work on a sealer, which sealer was shut down for a time, ostensibly for minor repairs. Whereupon Supervisor Elizabeth Cook assigned Lembke and Shaw to the basement to clean out the cellar, the work required that certain cardboard cartons located in an unlighted room be assorted as to size in a larger room that had a light, then tied up and returned to the darkened room. After about an hour spent on this cleanup job, Lembke asked Cook if the latter did not think the assignment "was discrimination." Lembke testified: Q. Did she reply to your question? A. She said, "Don't jump on me, jump on Bob Petrovic, he is the one who sent you down there." Lembke immediately spoke to Petrovic who was foreman in charge of production, and "asked him if he didn't think it was discrimination putting two girls at that hour in the basement while there was [ sic) men on the job . . . ? " Petrovic told Lembke and Shaw if they didn't wish to work there (basement) to "time out" and go home, which they did. The 2 girls left work about 3 hours before the end of shift time. When the 2 girls returned to work the next night, their cards were not in the card rack. After contacting the office, new cards were supplied and Lembke and Shaw punched in and went to work. Archer testified that Rinkenbaugh called him concerning the cellar assignment of Lembke and Shaw, which Rinkenbaugh thought was discrimination, and that he (Archer) informed Rinkenbaugh that he had received a report on the matter, had discussed the case with his attorney; had paid the girls for the hours they did not work; and thought the matter should be dropped right there. As noted heretnabove, Lembke had worked the 3 p. m. to the 11 p. m. shift prior to the strike After the strike, she was assigned to the 11 p m. to the 7 a. m. shift Also, as above noted, Shaw was employed on the 3 p. m. to the 11 p. m. shift prior to the strike. After the strike she too was assigned to the "midnight shift" or the 11 p. m. to the 7 a. m. shift. Timmons, whose discharge is discussed below, was employed in the bottle assembly department on October 26, 1949 She was first assigned to the evening or 3 p. m. to 11 p. m. shift. After a few days she requested Forelady Rodgers to transfer her to the day shift or 7 a. m. to 3 p. m. shift, which was done. Following the strike, Timmons was assigned to the 3 p. m. to the 11 p. m. shift. Miss May, Archer's office manager or secretary, informed m Timmons was also one of the strikers. Her discharge will be discussed below. 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Timmons by telephone of such assignment notwithstanding that Timmons informed May "that Dorothy [Rodgers] an,4 I ;iad `agreed that I didn't have to work but [sic] the day shift." Timmons' shift was not changed.' Ring, whose discharge is discussed below , was first employed by the Company on August 24. 1949 She joined the 'April strike , and "walked the picket line." She returned to work after the strike and was ' assigned to the midnight or 11 p. m. to 7 a . in. shift. She then asked Rodgers if there was any' chance of getting back on the day shift , Rodgers replied "yes, I believe there is,-- I have been wanting to make some change ,--(and) next week there is going to be some big changes." Nothing further has transpired in Ring's case except that on July 25 , 1950, she was discharged . Her discharge is discussed below. Bandy was employed by the Company on August 25, 1949 . She was assigned to the bottle assembly room and put on the day shift. Except for some 2 or 3 weeks in February 1950, when she worked on the midnight shift , she remained on the day shift until she joined the April strike. She returned to work after the strike and was assigned to the midnight shift. Hobbs was employed by the Company on October 27, 1949. She was assigned to the day shift and worked no other shift prior to the strike . On her return to work following the strike she was assigned to the evening or 3 p . in. to 11 p. m. shift . Hobbs testified that she had expressed no preference to her supervisory or company officials for any particular shift Russell was employed by the Company on September 21, 1949. tl During January 1950, Rodgers called Russell at the latter' s home and itifoicmed her that she was making shift assignments and inasmuch as Russell had seniority over employee Wanda Phillips , Rodgers wished to know which shift Russell preferred to work on . The latter stated that she pre- ferred the day shift so she could be with her son in the evenings . She was accordingly assigned to the day or 7 a . in. to 3 p. m. shift and worked on that shift until she joined the April strike. On her return after the strike , she was, however , assigned back to the 3 p. in. to 11 p. in. shift. Woolen was employed on February 7, 1950, and assigned to the bottle assembly room on the 11 p. in. to the 7 a. in. shift. As has been detailed hereinabove , she was discharged on March 23, 1950, and pursuant to the strike-settlement agreement was returned to work on June 5, 1950, and assigned to the day shift--7 a. m. to 3 p. m Claimant Nettie Harper testified that during the latter part of March , Foreman Bill Banken delivered Harper's paycheck to her and asked her if she thought she had earned her money. When Harper replied in the affirmative , Banken said that if she would take "that union button off," she would get more. to Harper further testified that the proposed coming union election was being discussed between she , Banken, and one Mike Grevowiec, U and Banken stated that if the election was held he would have the AFL Harper asked , "Why we didn' t have an election," Banken said "that UAW would not allow the election in [sic] because they knew we'd lose." Banken then made a remark about "why don't all the little plastic companies form a union of their own." ffi Richard Hessenflow was employed by the Respondent '-Company on October 8, 1946. At material times herein , he was engaged as a floorman. It was his duty to fill the hoppers, carry away production , make boxes , and relieve the operators on the plastic machines. Hessenflow joined the April 17 strike, returned to work following the strike settlement. Some 2 or 3 weeks following the strike , Hessenflow had occasion to talk with his foreman, Bill Banken, at a time when they were changing colors on the plastic bottle machines He testified. Q. What did he tell you? A. Well, he told me that Mr . Archer was going to fire Otto Wilson and I because he didn't like us , we spent too much time on the picket line. 21 Russell testified that she was hired in December of 1949 . The employment records in evidence disclose the proper date as September 21, 1949. n Woolen was the only I of the 8 UAW-CIO employees of the bottle room assembly who returned to work after the strike who wa_ r_r -signed to a "less desirable shift than she held prior to the strike." The record does not indicate one way or the other whether Woolen expressed a preference for any particular shift. Her eventual discharge on demand of the Respondent Union is discussed and described in detail below. At the time in question. Harper was wearing a UAW-CIO button. KThen an independent contractor in maintenance of equipment for Respondent Company. 25Banken did not deny making the statement favoring the AFL or his prediction that the UAW would lose the election, if held; and expressly adrnitted recommending a "little plastic companies union" of their own. INJECTION MOLDING COMPANY 667 Q. Did he say anything else? A. Well, he said Ruby Cook and Eddy Field , he like them, and he was going to keep them because they didn't spend so much time in the line. On cross -examination , with reference to Foreman Banken' s statement to the effect that Archer planned to fire Otto Wilson and Hessenflow , the latter testified: Q. (Interrupting) When you had this conversation (with Banken)? A. Yes. Q. Did you report it to Mr. Archer? A. No. Q. Why didn't you? A. Oh, I figured I was on the list anyway and it wouldn't help me if I did report it. Q. You are still working , aren't you? A. Yes. Q. As a matter of fact , Mr. Archer by notice asked you to report infractions like that to him, did he not? A. I believe he did Q. Why didn' t you report it to him? A. Just as I said , I thought I was on the list (for discharge) anyway, so it wouldn't do any good if I did report it. Edward Field was employed by the Respondent Company on September 9, 1947. During his employment , he was a machine operator and a floorman in the production room . Prior to the strike, Foreman Banken discussed labor organizations with Field and told the latter that the group " would benefit more with a company union , if we had our own and own meet- ings" and that about a week later , in a further discussion with Field, "... said we'd be better off if we had an A. F. of L. union in and if we got the C.I.O. in, we'd always be on strike " -. On the occasion when the strike began and as Field was leaving the plant , he told Banken "so long," the latter said, " well, I wouldn't be back in there again because Mr Archer would close the plant before he'd allow the CIO in." 26 As set forth hereinabove , Elsie May was discharged on or about March 7, 1950, and returned to work on or about March 8, as is also set forth hereinabove. Since the UAW-CIO officials had taken her March discharge up with Archer , May gave that union credit for her being returned to work. Subsequently , May had occasion to be working with Banken at which time he told her that he had turned against her after she had stated that the Union (UAW- CIO) got her job back. Ora Evelyn Johnson was formerly employed by Respondent Company and stated that she knew Foreman Banken. She testified: Q. Will you tell us whether or not you ever had a conversation with Mr . Banken following the strike at injection Molding? A. Yes. Q. Will you describe that conversation to us" How did it occur? A. Well, (1) drove by there and it was about time for the shift to get off. Q. Which shift was that? A. The first shift. And Bill Banken was crossing the street. Q. Which street was that, do you remember? A. Well, Independence Avenue. I stopped him and asked him if Nettie was on duty. Q. Nettie who? A. Nettie Harper , ana he said Nettie isn't with us anymore, and I said , " did she quit?" and he said , "No, she belonged to the wrong union." On direct examination , Banken, in part , testified: Q. Ora Johnson said that sometime after Nettie Mae Harper was discharged, about August 8, 1950, she drove by on independence Avenue and saw you and asked you if Nettie Mae had quit , whereupon you stated , " no, she belonged to the wrong union." Did you make such remark to her? A. No, sir. 26Foreman Banken categorically denied the testimony of Hessenflow and Field set forth above. The undersigned does not credit Banken's categorical denial. 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. So far as you know you made Harper discharged for that reason? A. No Q. Who made the decision to discharge Nettie Mae Harper ? Do you know? A. I don't know that, no. On cross -examination in connection with the Johnson testimony , Banken testified: Q. (By Mr. Hoffman) You testified on direct, Mr. Banken, under questions from Mr Browne, that you never had a conversation such as he put to you with Mrs. Ora Johnson? A. I testified that was not in the evidence. I believe, what she said. Q. Did you have a conversation with her? A. Yes. Q. Would you relate what that conversation consisted of, what you said and what she said to you? A. Yes. I was crossing Independence Avenue to the warehouse , and as I got to the middle of the street she drove up and she stopped , and she asked me what shift Elsie May was working, and I said-- At this point in the testimony , Banken inadvertedly referred to Elsie May instead of Harper, which resulted in some confusion , after which Banken continued , as follows. A. May I start over? Q. Start over. A. As I was crossing Independence Avenue, I happened to stop for a car to pass, and it was Ora Benge Johnson, and she saw me in the middle of the street , and she pulled over to the curb, and I walked over to her and she asked me what shift Nettie Harper was working on, and I said that she isn't with us anymore , and she said , " well, what happened?" and I said , " I don't know the exact cause of it , but I thought she had had trouble with her foreman or could not follow her foreman ' s instructions or orders, and she said, "well, I didn't know that " And she said, "Where is she working now')" And I said , " I don't know where she is working " And that was the full conversation and I want to add. rr The representation election was held on June 30 between the UAW-CIO and Respondent Union as opponents . The latter Union won . Following the election and the announcement of its results, Forelady Rodgers and Alex Petrovic, a brother of Foreman Bob Petrovic, then a salesman for Respondent Company, went to the bottle assembly department and announced the election results Rodgers, according to employee Ruby Hobbs, stated , " Whoopee, we won , we won," and then had her little dance. Shortly thereafter , Rodgers and Alex Petrovic were in the Monroe Inn, a nearby tavern, when employee Nona Shaw" entered the Inn en route to the ladies ' restroom. In this connec- tion Shaw testified: Q. Would you tell us what Dorothy Rodgers said to you or you to her? A. Do you want Dorothy' s words? Q. Yes. A. I walked into the door and she said, "There comes the C.I.O. girl," she said, You get your ass out of here." And I said, " I don't know you have the authority to tell me that," and Dorothy Rodgers said , "All of you C. I.O. girls are going to get your asses out of the Injection Molding and we are going to see that you do." Q. Did anyone other than Dorothy Rodgers speak to you at that time? A. Alex Petrovic verified her statement . He said , "We are going to see that you girls get your asses out of Injection Molding." Following the tavern episode, Shaw contacted Archer and reported what had transpired there. According to Shaw , Archer said he had told "them" (supervisors) " not to make remarks of that sort." Rodgers , as a company witness, in this connection testified: rlJohnson impressed the undersigned as a truthful witness . Her version of the events and statements on this occasion is credited. 28 Shaw's discharge will be discussed below. INJECTION MOLDING COMPANY 669 Q. Nona Shaw stated that you saw her at the Monroe inn the afternoon of the election and that you said , and I will quote her words as nearly as I have them down here on this piece of paper , "There comes the C.I.O. girl. You get your ass out of here All you girls are going to get your asses out of here." I just want to ask you if you made such a statement or anything like it? A. I absolutely did not Q. Now, do you recall Alex Petrovic being there at that time? A. Yes, sir. Q. Do you recall whether he made the statement , a similar statement , " Get your damn ass out of here." A. He did not. m Alex Petrovic testified that he was present at the Monroe Inn after the Board election on June 30 ; that Rodgers and others were with him drinking beer at a table ; that Shaw was creating a disturbance. He testified: Q. And Mrs Rodgers didn't speak to her at all? A. Not at all, sir. Q. And you didn't speak to her at all, is that right? A. I did speak to her, yes. Q. You just told her to shove off? A. I just told her to shove off and leave us alone. r s • e • s • Q. (By Mr. Sacks) And she mumbling something at a range of 12 feet and you didn't understand it, is that correct? A. That's all I recall from the little episode, she looked frustrated and as if she wanted to say something, but I did not understand her. Q. And that in your view constituted a disturbance by this woman, is that correct? A, An annoyance, that is correct, she was obviously trying to create some disturbance Q. How did you know that? A Well, by the mumbling and by the appearance and by the - - Q. What did she say? A. I could not understand, what she said. In this same connection, Archer testified: Q. (By Mr. Browne) Did Nona Shaw , Mr. Archer, speak to you about an incident that occurred at the Monroe Inn involving Dorothy Rodgers? A. I recall that she did. Q. Do you recall what is was she said about Dorothy Rodgers? A. Simply that someone had made a derogatory remark. Q. Did you tell her that you would speak to Dorothy Rodgers about it , if you recall? A. Yes, I did. Q. Did you speak to Dorothy Rodgers? A. Yes, sir. Q. Did Dorothy Rodgers admit the remark or deny it? A. She denied it. Q. You don't recall the remark right now , is that it? A. No, I don't know. From his observation of the witnesses Shaw , Rodgers, and Alex Petrovic, and the record herein, the undersigned credits Shaw ' s version of the events which took place at the Monroe Inn on June 30 and wholly discredits the testimony of Rodgers and Alex Petrovic in such connection and finds that Rodgers and Alex Petrovic made the statements to Shaw sub- stantially as testified to by the latter.m On cross-examination Rodgers testified that she heard Alex Petrovic's testimony in connection with the Monroe Inn incident and that "he was a hundred per cent accurate on that event"; and "He just merely said why don't you go on home and leave us alone ." Rodgers testified: Q. Are you sure he said that? A. Yes, I am pretty sure. 30 Rodgers' credibility as a witness is referred to elsewhere herein. 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As is found hereinabove, Forelady Dorothy Rodgers induced Emma Bandy to talk to Angie Curtis who was soliciting applications for membership in the LAM prior to the strike. Notwithstanding that Rodgers had spoken to Bandy on a number of occasions in an attempt to get her to sign the authorization cards as requested by Curtis, Bandy refused to sign any applications at that time. Following the strike, Bandy returned to work with the rest of the strikers. Bandy con- tacted Curtis in an attempt to join the AFL. Curtis was then secretary-treasurer of the Respondent Union. Bandy told her she would like to have a card to fill out for the AFL. Curtis replied that she had no cards. This request was made on or about July 4 or 5. u Bandy heard no further from Curtis. Thereafter she, in company with Elsie May and Rosa Bledsoe, called at the home of Harry S. Helgesen, then the business representative of Respondent Union and at the time of the hearing international representative. In this connec- tion, Bandy testified: Q. Tell the Examiner what you said toMr . Helgesen and what Mr . Helgesen said to you as nearly as you can recall? A. We told Mr. Helgesen we would like to have union cards for the girls of the CIO to fill out , that we had asked Angie (Curtis) but she never did give them to us, that she always didn't have them with her or explained to us that if we joined we were to pay the $10 just the same as a new member would come and we asked him why we would have to pay to be considered a new member , that we had been longer than some of the girls who had joined for 2 dollars , and he said , "Well, really, the girls don't even want us in the Union, that they were afraid of us." Thereafter, Helgesen held a meeting with the CIO girls at the AFL meeting place which the girls attended for the purpose of getting application-for-membership cards to fill out or finding a way to join the Respondent Union. The meeting was held at the AFL union hall about a week after the three girls had called on him . Helgesen explained to the applicants gathered there that they would have to pay $10 to join Respondent Union. Bandy testified that "We signed the cards but he JHelgesen] said we would have to be investigated before they would even tell us whether we would join or not." So far as the record discloses, neither Bandy, Elsie May, nor Rosa Bledsoe became members of Respondent Union. Nettie Harper testified that she returned to work at the end of the strike, and participated in the National Labor Relations Board election held on June 36. She testified: Q. Did you have occasion after the election to speak to Angie Curtis? A. I don't remember having any conversation with Angie Curtis. Q. You don't? A. Except when we asked for union cards. Q. When did you ask for union cards? A. Let me see, I was on the afternoon shift then, too. It was in July. I believe it was the first half of July, and I asked her one night if she would bring me a card to fill out--a union card, and she said she didn't have any then, but they would bring me one the next night, and the next two nights I asked her for a union card, and both times she informed me she had forgotten them. Q. It was either she or you- -who was Angie Curtis, do you know? A. Well, as far as I know she was just another machine operator, but she seemed to be, and I think she was an officer of some kind in the union, this Novelty Union. Q. That same Novelty Union which won the election? A. Yes, sir. Q. Was this the card you had been speaking to her about? A. Yes, it was. Q. Did you ever receive a card from her? A. No, I didn't. Insofar as the record discloses , Harper did not become a member of the Respondent Union. Claimant Annabell Woolen, whose discharge is discussed in detail below, testified that she attended the AFL Novelty Workers'. Union meeting referred to above. She testified that the meeting was held sometime between July 4 and July 25 and was held on a Sunday after- noon. There were about 15 present, 10 had been UAW-CIO members. The president of the Respondent Union; the vice president, Elsie Ireland; Angie Curtis, secretary -treasurer; and e Bandy testified that she asked for the card about 3 weeks before her termination on July 25. INJECTION MOLDING COMPANY 671 Helgesen , AFL representative, were also present . The meeting lasted about an hour or longer and Helgesen did most of the talking . He reported the fact that the AFL had won the election and gave the returns of such election ; he stated that while the Labor Board was trying tog the initiation fee cut from $ 10 to $ 2, the Union was not going to agree to it, "and that we co sign cards to join this A. F. of L., but we would have to be investigated , and we wot notified whether or not we got into their Union, and they passed out application card and I signed one of those." Woolen gave her signed card to Elsie Ireland, whom the record st}iows to have been an AFL stewardess. Woolen had not been asked to join the Respondent Un(on prior to this meeting. 32 Claimant Hazel Timmons, whose discharge is discussed below , in this connection, testified: Q. (By Mr Hoffman) Do you know which Union won the election? A. The A. F. of L. Q. Did you ever make an attempt to join that Union? A. The only opportunity that was presented to me I did offer. Q. Who presented that opportunity to you? A. I don't recall just who told us or whether it was on the bulletin board ; that there would be a meeting on Sunday for all of those willing for one to join the A . F. of L. Q. When was this notice posted, before or after the election A. It was after the election . I never had any interest before, at least no one talked to me about this other Union. Q. Do you recall how long after the election this notice was posted? A. I don't recall exactly. Q. A week or two weeks? A. Possibly a week or two. Q. Did you take any action on that notice , contact any of the A. F. of L. officials? A. No, I didn't personally contact them other than at the meeting. Mr. Helgesen and the officers were there at the meeting on Sunday , and it was on Brooklyn Street, and I don't remember the address. Q. What was said at that meeting as nearly as you recall, by Mr. Helgesen or any of the others? A. Well, of course, he had his little say about their moon and what its benefits were, which was natural, and he also said that if we pleased we could sign cards for our entry but it would have to be voted on, and if it was voted out, naturally we wouldn't be entitled to join. Q. Was there any discussions at that meeting about initiation fees if you recall? (At this point Timmons gave an answer which was in part not responsive and volunteered testimony of, a self-serving nature; on motion, the Trial Examiner struck the answer.) The examination continued: Q. (By Mr. Hoffman) Would you tell us again, Mrs. Timmons , only what Mr. Helgesen said at this meeting , not how you construed what he said? A. Couldn't remember a man' s exact words over a period of a year and a half. Q. Well, as nearly as you can recall what he said. A. I don't know how to abbreviate it any less than what I said. That is what I got out of his conversation. That is what he said, I mean Q. Mr. Helgesen, as I understand your testimony regarding what he said, indicated to you that the initiation fee had been increased from $2 to $10 and that the charter was closed , is that correct? A. Did hesay-- TRIAL EXAMINER WARD: Have the witness state just what he said with reference to the initiation fees , giving her words as near as she possibly can. A. He said.the initiation fee was at that time $ 10 due to the fact that the charter had already been closed, and before the charter was closed it was just $2. Insofar as it was disclosed by the record, Timmons did not join Respondent Union. In this same connection Nona Shaw testified: Q. Do you recall who won that election that was held at the plant in June of last year? A. The A. F. of L. 32 Woolen's further contact with Respondent Union is described iii detail in connection with the discussion of her discharge below. 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. Did you ever contact the A. F. of L. union before or after that election to attempt to joie that Union? A. I was at a meeting after the election. Q. Can you recall for us what went on at that meeting, who spoke and what was said? A. Mr. Helgesen spoke, and he said we would be permitted to sign cards and they would investigate us, and if they found us desirable they would let us join the Union, and he also talked of the fees . He said the fees would be $10 for us where they had previously been $2. Q. You spoke of Mr. Helgesen saying that the fee would be $ 10 for us . Who were the other people at the meeting beside yourself and Mr. Helgesen? A. Well, there was a group of us C.I.O. girls there at the meeting. Q. Do you recall when this meeting was held? A. It was, I would say, about 3 weeks after the election. Insofar as the record discloses , Shaw never became a member of the Respondent Union. The record discloses that Ruby Hobbs and Nadine Ring were reinstated on or about Septem- ber 26 or 27, 1950, and that thereafter or on or about October 26 , 1950, they each joined Respondent Union. Conclusions as to Events Antedating and Leading to the Discharges The foregoing findings of "background" events preceding the discharges described and set forth below , in brief, disclose that during Archer's absence from the plant on or about February 15, 1950, the CIO revoked the certification of affiliation of the International Union of Mine, Mill and Smelter Workers, CIO, as an affiliate of the CIO and expelled it from the CIO; that immediately thereafter Local 132 of the UAW-CIO, by John E. Rinkenbaugh, inter- national representative , and Don Hayward , then president of Local 132 , claimed to represent a majority of the Company' s employees and demanded recognition as bargaining representa- tive; Linus Wampler , as an alleged CIO successor to and receiver of all rights under the Mine-Mill contract , also claimed to represent the company employees; and a further and independent claim by Luther Slinkard , area director UAW-CIO, was made as a representative of said employees entitled to bargaining rights. Then followed Archer' s attempt to promote an independent or company union followed by Forelady Rodgers' action and aggressive efforts to force or induce the employees to join a union other than a CIO affiliated one, then being promoted by Angie Curtis (who later turned up as an official of Respondent Union). Thereafter , and following his employment of counsel, Archer on two different occasions , by posted notices , sought to disestablish the "Company" union and to disclaim any interest in the IAM , and by such action tacitly admitted his prior connection or activity with both organizations. As has been found hereinabove , certain petitions , charges, and countercharges were filed by UAW-CIO's several representatives and officials and the Company filed countercharges. All charges were subsequently withdrawn without prejudice by the parties, 03 Following the close of the strike and thereafter , the Company posted a number of notices to the employees that their right under the Act would be recognized ; that the Company and its officers and supervisors would be and remain neutral and fair as between members of the UAW-CIO and other unions; and that foremen would be fair and impartial to all employees. Notwithstanding the foregoing , the record discloses , that with one exception , all claimant strikdrs who returned to work were assigned to shifts less desirable than those worked prior to the strike; that employees Lembke and Shaw on first shift worked upon their return to work were assigned to work normally performed by janitors or charwomen , and when they com- plained that such assignment amounted to discrimination , they were sent home and their cards withdrawn from the rack, an act which is normally construed as a discharge. 36 At the close of the June 30 election which Respondent Union won , Rodgers informed Nona Shaw, as found and detailed hereinabove , that she and all the CIO girls were going to be put out of injection Molding Company . Foreman Banken' s statement , set forth above , needs no iteration here. Lastly, the record discloses that CIO striker-claimants were in the main unable to procure application-for-membership cards from representatives of the Respondent Union and were w The facts in connection with proceedings before the Board are referred to further below. S4As found elsewhere herein , the girls took this matter up with Rinkenbaugh before their next shift began and he in turn took the matter up with Archer, with final result that they were paid for the time lost by being sent home and new cards were furnished on their request at the beginning of the next shift. INJECTION MOLDING COMPANY 673 told they would have to be investigated and voted upon before they could become members of the Union. as From the foregoing and preceding record , it is clear that following the expulsion of Mine- Mill from the CIO and the ensuing , insistent, and aggressive campaigns put on by Local 132, through Wampler , as an alleged successor to Local 710, Mine -Mill, and Slinkard, as UAW-CIO area director , for recognition as bargaining representative of company employees, Archer determined that under no circumstances would he bargain with an affiliate of the CIO, hence his abortive attempt at organization of an independent or company union and his assistance to the LAM through Rodgers ' activity in aid of Angie Curtis, all of which included, as below found , that the active CIO striker -claimants be eliminated and terminated as em- ployees. It is so found. 36 2. The discharges Under date of July 25 , 1950, the Respondent Company discharged six employees employed in the bottle department . ar The material facts in connection with the discharge of each of the above-named employees will be found and stated separately ; and certain concluding findings will be made covering them as a group. (a) Emma Bandy Bandy was employed and started to work for the Respondent Company on August 24, 1949, and was assigned to the bottle assembly room which was under the general supervision of Dorothy Rodgers . When first employed, Bandy was assigned to the day shift, 7 a . in. to 3 p. m. In February 1950 , for a period of 2 to 3 weeks , was assigned to the midnight shift , 11 p.m. to 7 a. m. While employed on this shift she was under the supervision of Elma Lou Cook or Elizabeth Cook, sisters, who were in charge of the evening shift and the midnight shift which they alternated at regular intervals . Rodgers remained in charge of the 7 a. in. to 3 p. in shift at all times , but had general supervision over the other shifts. Bandy signed with the Mine -Mill local and after the latter' s expulsion from the CIO, she joined the UAW-CIO local. Thereafter , as has been found hereinabove, she was solicited to join the AFL Machinist Union , Local 92, by Angie Curtis who interviewed Bandy in the lunch- room where the latter had gone at the instructions of Supervisor Rodgers . On this occasion Bandy refused to sign an application -for-membership card as requested by Curtis. Thereafter Rodgers offered Bandy a further opportunity to sign up with the LAM which was declined , and was advised by Rodgers that , " You know a lot of girls are going to be out of a job over this CIO trying to get inhere, ..." Bandy , however, refused to comply with Rodgers' suggestion. Bandy joined the UAW -CIO strike call on April 15 and actively participated in it by doing picket line duty Out on the picket line and on at least two occasions she had conversation with Archer 38 Bandy returned to work as a result of the June 2 strike settlement and was assigned to the midnight , or 11 p. in to 7 a. in. shift . At the time the strike began Bandy had been employed on the day shift . She participated in the June 30 election at which Respondent Union prevailed , and thereafter , on or about the first week of July 1950, sought out Angie Curtis, who at the time was secretary -treasurer of Respondent Union , and asked for an appli- cation-for -membership card She was told by Curtis that the latter did not have any cards with her. Bandy was 1 of the 3 girls who called upon Helgesen at his home in connection with former UAW-CIO adherents procuring application -for-membership cards The details of which meeting have been set out hereinabove On July 25, Miss Mayo, Archer ' s office manager or secretary , called Bandy and informed her that the Company was discontinuing the midnight shift and that Bandy's services would not be required any further. Bandy left the plant and she received a copy of the notice to employees , reading as follows: $$In the strike- settlement agreement of June 2, signed on behalf of the Union, the employees were informed that the Union would not discriminate against them. 36 The record does not indicate and the undersigned does not find that Archer is or was antiunion, but does indicate that he resented the multiple and aggressive efforts of the CIO affiliate to succeed to the Mine-Mill contract . While one might feel disposed to sympathize with such position, one cannot justify it as a defense to unfair labor practices, inasmuch as it is the perogative of the employees to choose their bargaining representative. $7 The employees were Emma Bandy, Ruby Hobbs , Louise Lembke, Nona Shaw, Hazel Timmons, and Nadine Ring. aeArcher testified that he recalled seeing Bandy , among others , on the picket line. 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 11 Emma R. Bandy For reasons of economy and proper production control, we have decided to eliminate the 11 p. in. to 7 a. in. shift in the Bottle Department. It has been necessary to reallocate our personnel accordingly . We, therefore, regret to advise that of this date, because of the elimination of this shift, we will have to termi- nate your services. If at any time we resume our night shift operation, we will be glad to consider you for employment if you desire. (Emphasis supplied.) INJECTION MOLDING COMPANY The record discloses that on August 15, 1950, the Respondent Company reinstated a night shift. None of the six bottle department employees who had been discharged on July 25 were notified of this. Six employees, none of whom had been formerly employed insofar as Is dis- closed by the record, were engaged and assigned to such shift. In connection with the employ- ment of six new employees for a reopened night shift, Archer, in part, testified: Q. And you needed help less than a month later and you did not contact the C.I.O. girls to whom you had said "if I reinstate the night shift, I'll call you?" 39 MR SACKS: Could you read the witness the question ? Could you find it? (Question read) Q. (By Mr . Sacks) Is that correct? A. That is not correct. Q. Did you Mr. Archer , consider hiring Timmons , Shaw , Lembke, Bandy , Ring, and Hobbs in August when you hired new people ? Did you consider hiring the six CIO girls? A. They didn't say they desired to be hired. Q. So you didn't consider hiring them , is that correct? A. I didn't think any more about it. I hadn't heard from them. 40 (Emphasis supplied.) On cross-examination, Archer, testified that he hired nine new employees in the month of October 1950. He testified; Q. Did you consider contacting any of the experienced CIO girls at the time you determined to hire 9 new employees in October 1950? A. Well, I discussed these matters with Mr. Browne, and he advised me to go ahead and follow my past practice, whatever they were. Q. And your past practice was not to hire girls who had experience on your machines, is that correct? A. Not necessarily. s9 At this point, the record shows as follows: MR. BROWNE: No. I object to the General Counsel misstating the letter. "I will call you if you so desire." The letter says so, and you are deliberately misstating the record in that respect. I withdraw the word "deliberately," I don't think counsel is doing it, and I'm sorry, but I object to the question of misstating the evidence. TRIAL EXAMINER WARD: The examiner hasn't noted the misstatement part of it. He hadn't followed it. Wherein is it misstated? MR. BROWNE: The General Counsel said nothing in his question to this witness that he would consider them for employment if they desired. That is what the letter said, "If they desired," and I don't know whether they desired it or not. That is what I am objecting to, if the court please, and that is what the counsel said. TRIAL EXAMINER WARD: The objection will be overruled. 40 It should be noted from the emphasized portion of the notice set forth above, that while the company states it "will be glad to consider" the discharged employee "for employment if you desire," nothing was said as to how such employee will be advised of any resumption of such night shift. The Company's counsel's objections, stated above, along with Archer's underscored testimony, above, indicate that the language used in the notice was not inad- vertently selected. It left up to the employee the burden of learning when and if the night shift resumed. In the event the terminated employee did learn of such resumption of the night shift, the termination notice gives no assurance of reemployment and offers only a vague promise to "consider" an application for reemployment. INJECTION MOLDING COMPANY 675 Following her discharge on July 25, Bandy made several attempts to be reinstated or re- employed by Respondent Company. She called Supervisor Dorothy Rodgers a number of occasions and was informed that there was no opening for her . In the fore part of November 1950 , Bandy, in company with Nona Shaw, went to the plant to contact Archer, but did not see him on the first trip. They made a second trip at which time they got to see him and Bandy asked for her job back . Archer stated in substance that he did not know that she wanted it back; that he did not know that she was not working; when Bandy told him she would like to have a job , Archer stated that he didn't have any open at that time but would give her and Shaw every consideration . Insofar as the record discloses , Respondent Company had not made any offer of reinstatement , reemployment , or employment to Bandy at the time of the hearing herein. On or about September 6, 1950, Bandy requested a "service letter" from Respondent Company. Under date of September 9, 1950, Respondent Company wrote her as follows: Mrs. Emma R Bandy 426 Prospect Avenue Kansas City, Mo. Dear Mrs . Bandy: This will acknowledge receipt of your letter dated September 6, 1950, in which you requested a service letter. Your first employment by our Company was on August 24. 1949. You worked in the Bottle Assembly Department , where your duties consisted of operating machines for the purpose of placing print on plastic bottles, operating sealing machines which heat seal the bottoms on the bottles , and testing bottles for leaks by use of an air machine. You continued in that capacity until July 25, 1950 . On that date you were terminated because we discontinued the mid-night shift in the Bottle Assembly Department , in which you were working , due to the fact that our Production Department was not able to keep up with the Bottle Assembly Department , and there was not sufficient work for the em- ployees on the mid -night shift to continue working. Reasons of economy and proper pro- duction control make this step necessary. At all times while you were in our employ you were an able, satisfactory and industrious employee. (Emphasis supplied.) With kindest regards and best wishes, we are Very truly yours, INJECTION MOLDING COMPANY /s/ W. K. Archer President WKA:hm Registered Mail- Return Receipt Requested The record discloses that at the time of her discharge , Bandy had greater seniority than did at least 15 of the employees retained. ;4 On the foregoing , the record , and the concluding findings below applicable to all bottle de- partment dischargees herein, it will be found below that by the discharge of Emma Bandy on July 25, 1950 , the Respondent has discriminated in regard to the hire and tenure of employ- ment of said Bandy in violation of Section 8 (a) (1) and (3) of the Act. (b) Ruby Hobbs Hobbs was employed by the Respondent Company on October 10, 1949, and was assigned to the day shift in the bottle assembly room, on which shift she remained until she joined the April 17 strike. Hobbs first joined the Mine-Mill and after its expulsion from the CIO, she joined the UAW-CIO. She was among those present on an occasion about the 8th of March when Archer a The Company contends that seniority has no bearing herein since at the time of the 6 discharges in the bottle assembly department , it had no contract with any union. This contention will be discussed in the concluding findings below applicable to all 6 of such dischargees. 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD addressed all the employees and suggested the advisability of the employees forming an in- dependent or company union sometimes in the record referred to as the I .M. CO. Independent Union. On this same occasion Archer discussed Elsie May' s return to work, in this connection, Hobbs testified: Q. Can you recall what Mr . Archer said? A. Well, it was about putting Elsie May back to work , that he had put her back to work on his own will, and he would like for us all to work together , that he would make up a contract for all of us if we would work together , and this contract would be made out that we would receive our wages , raises and our vacation. That is about all I can recall in the speech Following the address or talk given by Archer on this occasion , Hobbs was directed by her forelady , Dorothy Rodgers, to go into the lunchroom and talk with Angie Curtis . These in- structions also included Mildred Spangler , and the 2 did go to the lunchroom and did get in touch with Curtis , who handed the 2 union application -for-membership cards with the request that they sign for the IAM. Spangler then spoke up and asked what had happened to the company union Curtis replied that the girls didn't seem to want a company union and asked if they were going to sign up the one proposed by Curtis . Hobbs then stated that she had signed with the UAW-CIO, which she said was good enough for her . During the time Hobbs and Spangler were talking with Curtis, Rodgers came into the lunchroom . The substance as to what then occurred at this meeting has been recited hereinabove. Hobbs joined the April 17 strike and participated in the same by walking the picket line. While on the picket line she had occasion to speak with Archer . Following the strike -settle- ment agreement , she returned to work with the other employees and was assigned to the afternoon or the 3 p. m. to 11 p. m., rather than to the 7 a. in. to 3 p. in shift she worked upon prior to the strike. Following the representation election held on June 30, Dorothy Rodgers and Alex M. Petrovic came into the room where Hobbs was working and announced "we won the election," and gave the figures covering the balloting, "and Dorothy Rodgers had her little dance." After the election Hobbs was one of those who attended the Respondent Union 's meetings on the occasion when former adherents of the UAW-CIO were invited to hear the conditions under which they might join the Respondent Union During such meetings , Angie Curtis and Helgesen spoke. Hobbs continued her employment until July 25. In this connection , she testified: Q. Were you terminated on that date? A. Yes. Q. Would you tell us how your termination was accomplished9 A. Elma Lou Cook handed me a letter -after working hours, and I took the letter, and I went outside on the side walk and read my letter , 42 and I came back in and asked Elma Lou if she would talk to me, and she said yes, and I said , " Elma Lou, was I laid off on account of my work," and she said no , that she didn't have no complaints on my work, and I said , "how come they laid us off not according to seniority ," and she says , "well you will have to see Mr. Archer about that." Q. Do you recall if anything else was said at that time by either Elma Lou or yourself? A. Well , I did say, too, ask her if it could be that I was a CIO girl, and she said it could be That was in between before I asked her how come we wasn't laid off according to seniority. 43 42 The "letter " written on a company letterhead reads as follows: July 25, 1950 Ruby Hobbs: For reasons of economy and proper production control, we have decided to eliminate the 11:00 P.M. to 7: A.M. shift in the Bottle Department. It has been necessary to reallocate our personnel accordingly. We, therefore, regret to advise that as of this date, because of the elimination of this shift , we will have to terminate your services . If at any time we resume our night shift operations, we will be glad to consider you for employment if you desire. (Emphasis supplied.) INJECTION MOLDING COMPANY. 42Elma Lou Cook admitted having a conversation with Hobbs on this occasion, but as to Hobbs' statement that she asked Cook "if it could be that I was a C.I.O. girl, and she said it could be," the reason for Hobbs ' discharge, Cook denied having stated that she "said it could be." Cook's denial is not credited by the undersigned who concludes and finds that such statement was made--Cook's credibility is discussed elsewhere herein. INJECTION MOLDING COMPANY 677 Q. After you were terminated on July 25 were you ever at some time later offered reemployment by the Company? A. Yes. Q. When? A. September 26. Q. How were you notified that you were being offered reemployment? A. By a telegram. 44 Upon arrival at Respondent Company ' s plant, Hobbs and Russell went to Miss Mayo's office. They arrived about 10 a.m. After the two had talked to Miss Mayo, she then talked to Archer and accompanied them to the door leading to Archer's office. Hobbs and Russell entered Archer's office and he asked them if they were working and they told him they were not. Archer then asked if they were ready to go back to work and they said that they were. Archer said then that he would have to get Dorothy Rodgers, he started to do so when Hobbs asked him if she and Russell were coming back at their regular rate of pay they had been getting and seniority. Archer replied that they would get the same rate of pay as when formerly employed, but that he could not promise them seniority. Archer then went for Dorothy Rodgers, brought her to his office where assignments were discussed with Hobbs and Russell. Archer then asked the two if they knew the reason why he was putting them back to work and when Russell said no, Archer said it was because they were experienced girls who knew the job and that Dorothy Rodgers had recommended them. Archer then advised them it would be necessary for them to join the Respondent Union within 30 days or they would be laid off. The regular rate of pay that Hobbs and Russell had been receiving prior to their termination was 95 cents an hour , and with a differential of 10 cents an hour for the midnight shift. At this point Hobbs produced and exhibited to Archer a document, reading as follows: Injection Molding Company 3827 Independence Avenue Kansas City, Missouri Atten: Mr. Archer, President As per request of the management of Injection Molding Company , I am reporting for work and am willing and ready to work on the job assignments that are fair and just In addition this is to inform you that my reporting to work does not abrogate my rights under the law, to process unfair labor practice charge and discrimination now pending before the National Labor Relations Board . It must be understood that I do not relinquish my right to back pay that may or may not be awarded by the Board. Yours truly, /s/ Ruby Hobbs45 On receipt of these two notices from Hobbs and Russell, Archer stated " ... that changes things" and added that he would have to call his lawyer. Archer left the room and was gone some 5 or 10 minutes . When he returned he handed Hobbs and Russell each a document, reading as follows: September 26, 1950 Miss Ruby I. Hobbs 625 Fuller Kansas City, Mo. Dear Miss Hobbs: We offered you employment with this Company of vacancies which have arisen. We are willing to employ you now without prejudice to the charges which you have filed with the "Evelyn Russell, claimant whose discharge is discussed hereinafter , also received the same telegram as did Hobbs and was present at the Respondent Company's office along with Hobbs on September 26. 45Russell also submitted an identical copy of the notice which was signed "Evelyn Russell." 283230 0 - 54 - 44 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD National Labor Relations Board. In other words, so far as the Company is concerned, you can process the Labor Board charge if you desire. That has nothing to do with your employment now. However, since your present employment is necessarily a new employment , you will therefore return with seniority beginning today, and at the starting rate we are now re- quired to give under the contract which we have with the Union. Very truly yours, Injection Molding Company 46 /s/ W. K. Archer W. K. Archer, President When Archer handed the above-quoted letter to Hobbs, he stated "well, girls, if you can get rough , I can get rough too." Archer denied that he had agreed to pay Hobbs the rate of pay she received at the time of her termination on July 25, 1950. He testified: Q. Incidently, Hobbs and Russell stated that you had already told them that they could be hired at their former rate of pay before they handed you the letter. Did you tell them that? A. No, sir. Prior to giving the foregoing answer to the above question, Archer testified. Q. (By Mr. Browne) Will you tell us what happened when you came to work? A. Well, they came in the office and I asked them if they were ready to go back to work, and they said yes, and they handed me a letter. Q. Is that letter in evidence in General Counsel's Exhibit 9? A. Yes, sir Q. What did you do then? A. I went into another office and called you. Q. Did you tell me what the letter was that you had received? A. I read it to you. Q. Did I suggest to you a reply? A. Yes, sir. Q. And did you prepare such a reply? A. I did. Q. Is that reply in evidence as General Counsel's Exhibit 10B and 10A? A. That is the letter. Q. There are two of them, one to Russell and one to Hobbs. A. Those are the letters I gave them. If Archer's testimony, next above-quoted , be credited , there was no (discussion of wages between he and Hobbs or Russell, since the latter two merely stated they were ready to go to work and handed Archer written statements to the effect that they were ready to go to work but made it clear that by returning to work they did not intend to abandon their unfair labor practice case against the Company. It would appear that the first paragraph of the attorney dictated letter to Hobbs (General Counsel's Exhibit No. 10 B) was a fulland complete statement or answer to General Counsel's Exhibit No. 9. The second paragraph of Exhibit No 10 B would appear to be uncalled for unless Hobbs and Russell had, as they testified , brought up the question of pay and seniority. From the fore- going, the record, and his observation of Archer, Hobbs, and Russell , the undersigned credits the version of the latter two as to the events occurring on the date of their reinstatement. - Hobbs returned to work on September 26, 1950 , and continued her employment until Febru- ary 8, 1951, which employment, as disclosed by the record, was "terminated due to lack of material." At the time of Hobbs' discharge, 11 employees in the bottle department with less seniority than she had were retained . The seniority issue will be discussed in the concluding findings below. Under date September 8, 1950 , the Company wrote Hobbs as follows: 46 An identical letter except for the address was given to Russell and addressed to Miss Evelyn E. Russell, 909 Indiana Ave., Kansas City, Mo. INJECTION MOLDING COMPANY 679 September 8, 1950 Mrs. Ruby Hobbs 625 Fuller Kansas City, Mo Dear Mrs . Hobbs: This will acknowledge letter dated September (sic) 1950, in which you requested a service letter. You were first employed by our Company on October 27. 1949. You worked in the Bottle Assembly Department, where your duties consisted of operating printing machines for the purpose of placing print on plastic bottles, operating sealing machines which heat seal the bottoms of the bottles , and testing bottles for leaks by use of an air machine You continued in that capacity until July 25, 1950. On that date you were terminated because we discontinued the midnight shift in the Bottle Assembly Department, in which you were working, due to the fact that our Production Department was not able to keep up with the Bottle Assembly department , and there is not sufficient work for the employees on the midnight shift to continue working . Reasons of economy and proper production control made this step necessary. At all times while you were in our employ you were an able , satisfactory and industrious employee. (Emphasis supplied.) With kindest regards and best wishes, we are Very truly yours, Injection Molding Company /s/ W. K. Archer W. K. Archer President Hobbs' termination notice of July 25 , quoted above, reads in part, as follows: For reasons of economy and proper production control , we have decided to eliminate the 11:00 P.M. to 7 A.M. shift In the Bottle Department. Hobbs' service letter dated September 1950 , also quoted above, reads in part, as follows- You continued in that capacity until July 25, 1950. On that date you were terminated be- cause we discontinued the midnight shift in the Bottle Assembly Department , in which you were working, . . (Emphasis supplied.) The record discloses , however , that Hobbs was not on the midnight shift on the date of her discharge, nor had she ever been assigned to the midnight shift. With reference to shifts worked during employment prior to her discharge , Hobbs, without dispute , testified: Q. When did you first start to work for them? A. In October '49. Q. On what shift were you first employed? A. Day shift. Q. In what department? A. In the bottle assembly room. Q. Did you ever work any other shift than the day shift before the strike? A. Yes, after the strike , the evening shift. Q. Had you ever worked any shift other than the day shift before the strike? A. No. The record further discloses that at the time Supervisor Elma Lou Cook handed Hobbs her letter or notice of termination , she also gave such a letter to claimant Hazel Timmons. Cook, in part, testified: Q. Did you give a letter of termination to anyone else at the same time you gave it to Ruby Hobbs? - 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. Let me think now. There was Rose Dodson and Hazel Timmons, and it seems like there was another one, but I don't remember. In this connection, Timmons, without dispute, and in part , testified. Q. How were you notified you were being terminated? A. As I went to leave that particular evening I was handed an envelope with a letter in it telling me that the midnight shift would be terminated , which I wasn't on it. That was why I was terminated. Q. And this letter notified you that the midnight shift was being terminated? A. That is right. Q. And you were on what shift? A. The afternoon shift. [3 p. m. to 11 p. in. ] On the foregoing and the record , the undersigned concludes and finds that Hobbs was not em- ployed on the midnight shift at the time of her July 25, 1950 , discharge. On the foregoing, the record, and for the additional reasons set forth in the concluding findings below, it will be found below that by the discharge of Ruby Hobbs on July 25, 1950, and by the refusal on September 25, 1950 , to reinstate said Hobbs to her former position in the bottle department at her former rate of pay , the Respondent Company has discriminated in regard to the hire and tenure of employment of said Hobbs in violation of Section 8 (a) (1), (3), and (4) of the Act. (c) Hazel Timmons Timmons was employed by Respondent Company on October 26 , 1950, and was assigned to the bottle assembly department She was assigned to the evening or 3 p . m. to 11 p. m. shift, where she worked for a couple of days and after which she applied to Forelady Dorothy Rodgers for and was transferred to the day shift or 7 a. m. to 3 p. in. shift. Timmons at times worked under the supervision of Elma Lou Cook and Elizabeth Cook, who alternated on the evening and midnight shifts as supervisors. Timmons joined the Mine Mill Smelter Workers Union when she started to work and con- tinued her membership in that Union until the Mine -Mill Union' s affiliation with the CIO was ended. Thereafter , she joined the UAW-CIO sometime in the latter part of January or early Febru- ary 1950 . She joined In the April 17 strike and participated in its activities by taking her turn on the picket line then doing kitchen duty . While on picket duty she had talked with Archer, who would " usually always , speak if he would come face to face with me." Following the settlement of the strike , Timmons returned to work and was assigned to the 3 p . in. to 11 p. in. shift rather than to the day shift that she was working when she joined the strike Such assign- ment was made by Miss Mayo and Timmons informed her that Dorothy Rodgers and she had agreed that Timmons would not have to work any but the day shift. Insofar as the record dis- closes, the assignment made by Mayo remained effective. Under date of July 7, 1950, Respondent Company posted a notice , as follows: NOTICE To the Employees of the Bottle Assembly Department July 7, 1950 Due to the fact that there is a shortage of machine operators in the production depart- ment, we have decided to transfer some of the employees in the bottle room to the pro- duction department. This transfer, of course, will be made on a seniority basis. If any of the employees are interested in a transfer to the production department , please advise a supervisor , Mrs. Dorothy Rodgers However , we wish to advise that any em- ployees who desire to be transferred , to lose their seniority in the Bottle Assembly Room. (Emphasis supplied.) /s/ M. L. Davis As a result of the above notice, Timmons contacted Rodgers and asked that she be per- mitted to take the 10 -day trial period . In this connection. Timmons testified: Q. Did you ever take any action on that notice and ask anyone if you could transfer to the production department? INJECTION MOLDING COMPANY 681 A. I did. Q. To whom did you speak? A. I asked Dorothy Rodgers if I could have a trial period . They had a 10 -day trial period , and I asked her if I would be permitted to have the 10-day trial period. Q. What did she say to you? A. She said that as far as she knew I could. Q. Were you subsequently transferred to the production department? A. No. I was given a half day trial, and I called Dorothy and told her , I called her on the phone due to the fact that she is on days and I was on evenings , called her at her home and told her I definitely would like a permanent transfer to that department , and she said alright. Q. About how long was that after this notice was posted, if you can recall? A. It was only a matter of a few days . I don't know the exact number. Q. And you said you called Dorothy Rodgers at the end of the day? A. No, on my lunch time. Q. After you had already spent a half day on the production department 9 A. No, I only spent about two or three hours. Q. Did you then continue the work in the production department on the following day? A. No. I wasn' t permitted only in a case of emergency at that any more. Q. Did you discuss with Dorothy Rodgers why you weren 't allowed to continue in the production department? A. I did, I asked and she threw up her hands and said, "I don't know . You have to ask Mr. Archer." Q. (By Mr. Browne) Who? A. Archer. Q. (By Mr. Hoffman) Did you then subsequently speak to Mr . Archer as to why you were not allowed to continue in the production department? A. I did. Q. Can you recall when you spoke to Mr. Archer, timing it from the date of this notice? A. Well, it was possibly , I'd say, a couple of weeks, because it was a matter of a few days after it was posted before I asked to be transferred , and it was a matter of a few days I was permitted when it suited their emergency to work , and then it was about a week after that I would say. Q. Tell us what you said to Mr. Archer and what he said to you? A. I asked him why he wouldn't let mego in production and work and be transferred as I had more seniority than some of the girls he was letting to in there. Q. Did Mr . Archer answer your statement to him? A. First he told me I would have to rotate shift . I told him I would rather rotate than be on the only shift I had asked not to have to work on, I would rather rotate. Then he also told me I'd lose my seniority in the bottle room , which I was even going to give that up not to have to work on the only shift I couldn 't work and keep home life. Then he also told me that the reason the other girls had been permitted to go in production instead of me because they had experience during the strike and had stuck by him and I was outside picketing. (Emphasis supplied.) Q. (By Mr. Hoffman) Where did this discussion with Mr. Archer take place? A. At my machine. He was passing through and I called him over. Q. What other employees were working at the same machine, was somebody else working with you on that machine? A. Well, there was another machine in the room, they are very close together , Evelyn Russell was working on the stamping machine in the same room at the time.47 aClaimant Evelyn Russell testified that about the middle of July she heard a part of the conversation between Timmons and Archer . She testified: Q. Was anyone else present besides Miss Timmons, Mr. Archer, and yourself? A. I don 't believe there was. I think there were just the 2 machines going at the time. Q. You were operating one and Miss Timmons the other? A. Yes. 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In connection with Timmons' request for transfer to the production department pursuant to the July 7 notice quoted above. Archer testified: Q. (By Mr. Sacks) And why was it you said you transferred certain people to bottle production - not Hazel Timmons? Will you tell us that again? A. I tried to pick the people I thought were most adaptable or had experience. Q. So when you posted a notice saying - which is in evidence as General Counsel's Exhibit 13 - saying that the transfer would be made according to seniority, you didn't really mean that, did you? A. Well, I didn't follow it, lets say, and that particular of Hazel Timmons. I might have made a mistake. Q. You announced a policy of following seniority but you didn't follow it in that incident, is that correct? A. In that incident. Q. Isn't that correct? A. That is correct. 11 Q. You didn't know who was going to make the best one until you tried them in it, did you? A. Well, I tried Hazel on machine, I think, for a half day or something like that. Q. Did you watch her during this half day? A. I observed her. Q. During the whole half day? A. Well, I went through the plant. I don't say I stood there and watched her the whole half day. Q. You might have glanced at her once or twice, is that right? A. I imagine. Q. Did you call on her foreman for an evaluation of her effort? A. No, I don't recall that I did. Following the June 30 election, Timmons was among those that attended the meeting at the Respondent Union's local hall on which occasion Helgesen and others including Angie Curtis discussed the requirements for the former UAW-CIO adherents to join the Respondent Union. Among other things they were advised that the charter of the Union had been closed and the initiation fees had been raised from $ 2 to $10. On the evening of July 25, Timmons was terminated and, in this connection, she testified: Q. How were you notified you were being terminated? A. As I went to leave that particular evening I was handed an envelope with a letter in it telling me that the midnight shift would be terminated, which I wasn't on it. That's why I was terminated. Q. And this letter notified you that the midnight shift was being terminated? A. That is right. Q. What did you hear, if anything? A. Well, my machine was turned off at the time, because I was inspecting my box of bottles, and I didn't have mine, and Archer came through there and Hazel called him over there. Q. Hazel is Mrs. Timmons? A. Hazel Timmons called Mr. Archer over there, and the only part I heard was that she asked him why she couldn't go into production, that she wanted to go out there and try it, and he told her that due to the fact that girls had came in through the strike and had experience, why, he felt like they should be the first ones to have the chance, that is all I heard. Whether he said any more or not, I don't know, because I went back to my machine. Archer categorically denied making such statement in substance or at all. The undersigned does not credit Archer's categorical denial, his credibility as a witness is discussed else- where herein. INJECTION MOLDING COMPANY 683 Q. And you were on what shift? A. The afternoon shift. 48 Timmons testified that after her discharge, she returned to the Respondent Company' s office. In this connection, she testified: Q.' Did you speak to anyone when you returned to the plant after you received this notice of termination? A. Only Miss Mayo in the office. Q. What did you say to Miss Mayo and what did she say to you as nearlyas you can recall? A. Well, I asked her for my check and she told me I should sign a release , which I didn't feel obligated to sign, and during our conversation, Emma Bandy was with me, however, at the time, and during our conversation I asked Miss Mayo if - well, I just told her , rather , that we hadn't been by seniority rights and she said Mr Archer was on his own as they didn't have any union at that time. Timmons testified , without dispute, that she had never had any complaints concerning her work in the bottle room or in the bottle assembly room. Under date of September 9, 1950, Respondent Company wrote Timmons as follows: Mrs. Hazel Timmons 1226 Swift North Kansas City, Mo. September 9, 1950 Dear Mrs. Timmons: No. PP. 1 This will acknowledge receipt of your letter of September (sic) 1950 , in which you re- quest a service letter. You were first employed by our Company on October 26 , 1949. You worked in the Bottle Assembly Department , where your duties consisted of operating printing machines for the purpose of placing print on plastic bottles , operating sealing machines which heat seal the bottoms on the bottles , and testing bottles for leaks by use of an air machine. You continued in that capacity until July 25, 1950 . On that date you were terminated because we discontinued the midnight shift in the Bottle Assembly Department, in which you were working , due to the fact that our Production Department was not able to keep up with the Bottle Assembly Department , and there was not sufficient work on the mid- night shift to continue working. Reasons of economy and proper production control made this step necessary. At all times while you were in our employ you were an able , satisfactory, and in- dustrious employee. (Emphasis supplied.) With kindest regards and best wishes, we are Very truly yours, INJECTION MOLDING COMPANY /s/ W. K. Archer W. K. Archer , President WKA:HM Registered Mail Return Receipt Requested 48 The letter referred to reads as follows: July 25, 1950 Hazel Timmons: For reasons of economy and proper production control, we have decided to eliminate the 11:00 P. M. to 7:00 A. M. shift in the Bottle Department. It has been necessary to reallocate our personnel accordingly. We, therefore, regret to advise that as of this date because of the elimination of this shift, we will have to terminate your services. If at any time we resume our night shift operations, we will be glad to consider you for employment if you desire. (Emphasis supplied.) /s/ INJECTION MOLDING COMPANY 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The record discloses that at least 10 of the retained bottle department employees had less seniority than did Timmons . Notice of July 7 advising employees of the bottle assembly de- partment that they might make applications for transfers to the production department, stated in part : " This transfer, of course, will be made upon a seniority basis," thereby admitting and conceding that employees in the bottle room had seniority . Moreover , it appears, without dispute, that Archer stated to Timmons that if she transferred to the production de- partment she would lose her seniority in the bottle department. The undersigned has found the Ruby Hobbs ' discharge case, next above , on the basis of the discharge notice of July 25 and her service letter of September 8, that the Company contended that Hobbs was on the midnight shift when discharged . The undersigned has found on un- contradicted evidence that Hobbs was not assigned to the midnight shift at the time of her discharge or at all. Timmons also received a service letter in all material matters the same as the one received by Hobbs, and the findings of the undersigned in the Hobbs ' case are applicable in such connection and incorporated herein by reference . From all of which it is clear that Timmons was not employed on the midnight shift when discharged on July 25 , 1950. It is so found. The foregoing and the record discloses that at least 10 employees with less seniority than Timmons were retained when the latter was discharged on July 25 , 1950;49 and that Archer knew of Timmons' picket line and strike activities and resented such activities . On the basis of the above and additional findings applicable to all discharged bottle assembly department employees , it will be found below that by the discharge of Hazel Timmons on July 25, 1950, the Respondent Company discriminated in regard to the hire and tenure of employment of said Timmons in violation of Section 8 (a) (1) and (3) of the Act. (d) Louise Lembke Lembke was employed by Respondent Company on October 26, 1949. She was assigned to the bottle assembly room, sometimes referred to as the bottle assembly department, and worked continuously in that department until her termination referred to below. At the time she was employed she informed Miss Mayo, Mr. Archer' s secretary , that she desired to be assigned to the afternoon shift and was so assigned . She worked on such shift continuously until April 17, 1950, at which time she joined the strike referred to below. Elma Lou Cook and Elizabeth Cook, sisters , were assigned to the evening shift, operating from 3 p. m. to 11 p. m., and to the midnight shift, which operated from 11 p. in. to 7 a. m. It was the practice of the Cooks to alternate shifts as between themselves . Dorothy Rodgers, supervisor of the bottle assembly department , with general supervision over all three shifts, normally supervised the day shift which operated from 7 a. m. to 3 p. m. It was normal practice when Lembke reported for work, for one of the Cooks under whom she might be working at the time, to assign her a particular job for that day. On the occasions when there was a shortage of work and it was necessary to relieve some of the employees for the day, one of the Cook sisters would make the decision as to who would be relieved from duty. When Lembke was first employed she joined the Mine-Mill Union. She continued in that organization until January 1950, when she joined or transferred to the UAW-CIO. When the UAW-CIO called a strike on April 17, Lembke joined it ; and engaged in the activity of regular picket line duty. While on the picket line she spoke to Archer. She recalled that others on the picket line with her consisted of Nona Shaw, Emma Bandy, Evelyn Russell , Hazel Timmons, Nadine Ring , and Mildred Spangler. Following the settlement of the strike which has been referred to in connection with the discussion of the discharges of other claimants herein, Lembke requested a change in her shift assignment of Dorothy Rodgers, forelady. Such request was made about 2 weeks after the return from the strike. Lembke testified: Q. What did you ask Dorothy? A. I asked Dorothy if she had any objections to Hazel Timmons and I exchanging our hours. Hazel was on the afternoon shift, and I was on the midnight, and it was agreeable on Hazel's and my part to exchange if Dorothy Rodgers did not have any objections, so I asked Dorothy and she said yes, she did object, that she was making no changes at that time. 40 The seniority issue is discussed further below in the concluding findings as to all six bottle department dischargees. INJECTION MOLDING COMPANY 685 Q. Who is Hazel Timmons? A. Hazel Timmons is another employee there, was. Q. Who was working on a different shift , is that correct? A. Yes As has been described in detail in section III, A , 1, above, Lembke and claimant Nona Shaw were assigned to a job in the basement "to clean out the cellar" about 3 o'clock in the morning. As is detailed hereinabove , after working about an hour on such job, they decided they were being discriminated against and so advised Supervisor Elizabeth Cook and Fore- man Bob Petrovic , with the result that they were instructed by Petrovic "to time out and go home" which they did. Prior to the starting of their next shift Lembke and Shaw got in touch with Rinkenbaugh of the UAW-CIO and reported that 'they had been sent home.50 On their return to work at the beginning of the next shift, they found that their timecards had been taken from the card rack. They reported the matter to Davis , who is referred to in the record as office manager and other management titles , with the result that new cards were furnished to the two in place of the old ones and they returned to work. 51 Lembke testified that she knew of the occasion upon which employees in the bottle assembly room were given an opportunity to transfer to the production department . She got such information from the posting of the notice on July 7, 1950, and herein in other connections referred to heretofore.52 Lembke lived some 3} blocks from Respondent Company's plant. On July 19 she felt ill or indisposed and called Respondent Company and got in touch with Shirley Bishop, who was acting supervisor of the 3 p. m. to 11 p. in. shift that day, and reported the fact , stating she would like the night off if it was satisfactory , but "if she needed me I would be down to work" and stated that she could get there within 5 minutes . The can was made at 10.45. Her shift started at 11 p. m. Lembke did not report for work on the night of the 19th. She did not return to work on the next day , or July 20. In which connection , she testified: Q. Did you return to work the next day? A. No, I did not. Q. Would you relate to us why you did not return the next day? A. I received a telephone call the next day from Miss Mayo saying that I was ter- minated because I called in 15 minutes before time to go to work . I asked Miss Mayo, I told her , I don't understand why I was being terminated for that , and she said she didn't care to discuss it, that she was just telling me what Mr Archer told her to tell me, that I was terminated and not to return to work. Q. Did you return to work at any time after you talked to Miss Mayo before you were terminated on July 25? A. Yes. Q. When did you return to work? A. July 24. Mr Archer called me and apologized to me and said he didn 't know the circumstances why I was fired , that he had had Miss Mayo call and terminate me, and said I still had a job and asked me if I would return to work. Q. In this conversation with Mr . Archer before you returned on July 24, did you discuss anything else? A. Yes, I discussed with Mr. Archer, I asked him about changing jobs back on the afternoon shift and told him that I had discussed it with Dorothy Rodgers, I had asked her If Hazel Timmons and I could change our shifts , and Mr. Archer said there was no changes to be made right then , that as far as he was concerned the production on the midnight shift - may I repeat the exact words? Q. Yes. 50 The record discloses without dispute, that Rmkenbaugh took the matter up with Archer, and that eventually Lembke and Shaw were paid for the full night 's work. More- over, Lembke's service letter, quoted below, describes her duties as a bottle assembly department employee in minute detail, which description may in no manner be interpreted to include the type of work Lembke and Shaw were assigned to on this occasion. tt it should be noted that Rinkenbaugh, on behalf of the UAW-CIO, had taken the matter up with management for their return to work. se The notice referred to was received in evidence as General Counsel's Exhibit No. 13, after Respondent Company's counsel had produced it. It is set forth in full in connection with the consideration of Hazel Timmons' discharge, next above. 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. That the production on the midnight shift wasn ' t worth a damn, that he may dis- continue the midnight shift before long anyway. Lembke returned to work and worked on July 24 and was terminated the following day, July 25. The record shows that she, like the other bottle department girls terminated on that day, received a notice of termination from Respondent Company on which unlike the others included a third paragraph , reading: If at any time we resume our night shift operations, we will be glad to consider you for employment if you desire. (Emphasis supplied.) On the day following her discharge of July 26 , Lembke went to the office to get her week's salary, had to sign a release from the Company before getting " the one night's pay" that she was out sick , presumably. Under date of September 6, 1950 , Respondent Company wrote Lembke as follows: September 6, 1950 Mrs. Louise Lembke 4221 Independence Ave. Kansas City 1, Mo. Dear Mrs. Lembke: This will acknowledge receipt of your letter dated September 1, 1950 , in which you request a service letter. You were first employed by our Company on October 6, 1949 . You worked in the Bottle Assembly. Department, where your duties consisted of operating printing machines for the purpose of placing print on plastic bottles , operating sealing machines which heat seal the bottoms on the bottles , and testing bottles for leaks by the use of an air machine. You continued in that capacity until July 1, 1950 . On that date you were terminated because we discontinued the midnight shift in the Bottle Assembly Department , in which you were working, due to the fact that our Production Department was not able to keep up with the Bottle Assembly Department, and there was not sufficient work for the employees on the midnight shift to continue working . Reasons of economy and proper production control made this step necessary. At all times while you were in our employ you were an able , satisfactory and in- dustrious employee. (Emphasis supplied.) With kindest regards and best wishes, we are Very truly yours, INJECTION MOLDING COMPANY /s/ W. K. Archer W. K. Archer President WKA:HM Registered Mail Return Receipt Requested In connection with Lembke and Shaw being sent into the cellar to do a cleanup job late on the night shift after returning to work following the strike , Lembke testified: Q. I say after this incident were you ever sent by Elizabeth Cook into the basement and subsequently talked about It with Bob Petrovic , did you on some other date discuss the incident of your working in the basement with any other company official? A. Yes, with Bob Petrovic. Q. What did you say to Mr. Petrovic and what did he say to you on that occasion? A. I asked Bob Petrovic what right he had to send us to the basement to do that work. He said he was sorry, he was doing what he was told to do. I asked him who told him, and he wouldn't tell me. INJECTION MOLDING COMPANY 687 Q. Where did this conservation take place? A. At the Griddle on Independence Avenue. Q. What is that? A. A cafe. Q. How long after you were assigned to work in the basement did you have the subse- quent conversation with Mr Petrovic" A That was two weeks after I was terminated when I spoke to Bob Petrovic about that Q. And you were terminated on July 25, is that correct9 A. Yes. to Lembke's case is unique among the bottle assembly department dischargees of July 25, 1950, since she has the distinction of having been discharged three-times after her return following settlement of the strike (1) The discharge during about the middle of her shift of 11 p. m., June 5, to 7 a, m., June 6, (2) her discharge on July 20, 1950, by Mayo under instructions of Archer, and (3) the discharge of July 25. As to (1), it has been found above that Lembke and claimant Mona Shaw were discrimina- torily assigned to the duties of a janitor or charwoman during the first shift worked after their return following the strike settlement, and following their complaint to Foreman Petrovic against such discrimination, were ordered to "time out" and go home, which they did Their timecards were then withdrawn from the card rack, an act signifying discharge But for the fact they took the precaution of reporting the matter to Rinkenbaugh, UAW-CIO official, who later contacted Archer, who in turn contacted Attorney Browne, Lembke would not have been permitted to return to work on the June 6 shift u As to (2), the undisputed discharge of July 19, under the circumstances related in full above, wherein Lembke, who had called 15 minutes before her shift time, reported that she was indisposed and would like to remain at home that night, but added that she could report if needed She also said she could get to the plant within 5 minutes She was not told to report and did not. Mayo called her on July 20 and informed her not to report as, pursuant to Archer's orders, she was terminated. Then on July 24, Archer called her, apologized for the July 20 dis- charge, and requested her to return to work, which she did on that day. As to (3), the events of the July 25 discharge has been detailed above The irony of her recall to work on July 24 only to be discharged anew on July 25 requires no comment The several discharges of Lembke described above lead to a clear inference that the Respondent Company immediately following the return of the UAW-CIO strikers sought to find opportunities and occasions that would appear to justify its discharge of those most active in the strike. It is so found. On the basis of the foregoing findings and the additional findings applicable to all dis- charged bottle assembly department employees, it will be found below that by the discharge of Louise Lembke on July 25, 1950, the Respondent Company discriminated in regard to the hire and tenure of employment of said Lembke in violation of Section 8 (a) (1) and (3) of the Act (e) Nona Shaw Shaw was employed by Respondent Company on February 2, 1950, and was assigned to the bottle assembly department and to the afternoon or 3 p. in. to 11 p. m. AM At the time of her employment she indicated to Miss Mayo a preference for the day shift but without avail. She did state definitely that she would not work the midnight shift. As a member of the so-called evening shift she worked under the supervision of the Cook sisters, Elma Lou and Elizabeth Cook. The Cooks rotated the evening shift and the midnight shift between themselves Shaw joined the UAW-CIO and when the strike of April 15 was called, she joined it and thereafter participated in its activities by serving on the picket line. During the time she was on the picket line, Archer asked her to return to work but she told him that she would not cross the picket line. Following the settlement of the strike and the return of the strikers 59 Bob Petrovic was called as a witness by Respondent Company, but was not questioned concerning this particular conversation as testified to by Lembke. The foregoing testimony of Lembke is credited by the undersigned. 54As set forth above, Foreman Petrovic, following Lembke's discharge, when the latter asked him "what right he had to send" Lembke and Shaw to the basement to do that work, stated that he was sorry but had done what he was told to do. He refused, on request, to say who told him to take such action. 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to work, Shaw was among those who returned . She was assigned to the midnight shift. And on this occasion during the first shift that she worked following the strike , she, along with Louise Lembke , were sent down in the basement to do some rearranging or repacking of some cartons and cleaning up of the basement . Only part_of the work which was done in an unlighted room , according to the credited testimony of Lembke In this connection , Shaw' s supervisor on this occasion , Elizabeth Cook, testified: Q. Would you relate the circumstances under which Lembke and Shaw went down to the basement on that day9 A. Well, it was on the midnight shift, and they were on a sealer, those two girls. This sealer broke down. It had to have some repairs which took about 45 minutes, so we thought that we should keep them occupied, so we had this little job in the basement and this job was suggested to me by Bob Petrovic, and I sent the girls down there thinking nothing of any discrimination or anything about it, because I think anyone of us out there had done some similar things, and I am sure we didn't feel that way about it. Q. Did they go down and do the work9 A. They went down and started to do their work, they didn't finish it. Q. They left before they finished it? A Yes. As is set forth hereinbefore in connection with Lembke's discharge, the two girls com- plained to Cook that they thought they werebeing discriminated against and subsequently were told, as is related in connection with Lembke's discharge described next above, that they could "time out" and go home, which they did. Foreman Petrovic stated that he had knowledge of the incident of the two girls being sent into the basement and that he had taken Elizabeth Cook downstairs, showed her what to do or what he thought should be done, "and I suggested that she have the two girls on the sealer, because their machine was down, I suggested that they straighten up the boxes." He testified: Q. Did Elizabeth send those girls down? A. She did. Q Did Mr. Archer speak to you about that incident later? A. Yes, he did. Q. What did he do or what did he say? A He gave me plenty of heck about it. Q. Did you have authority to send them down? A. No, sir. Q You yourself didn't send them down A. No, sir. Q You asked Elizabeth? A. I asked Elizabeth. I suggested to her. As has been found in the discussion of Lembke's case above, the two girls "timed out" and went home, in due course they reported the matter to Rinkenbaugh, UAW-CIO representative, what had happened. The record showed that Rinkenbaugh took the matter up with Archer and that subsequently both girls were paid for the full shift. However, when they reported to work on their next shift, they found that their timecards had been withdrawn from the card rack. They then took the matter up with Mr Davis, the Respondent Company's office manager, who supplied new cards. The withdrawal of Shaw's and Lembke's cards from the card rack after they were' told to "time out, by Foreman Petrovic, indicates that it was the Respondent Company's intention to thereby discharge the two, and but for the fact that they took the pre- caution to take the matter up with Rinkenbaugh, who in turn took the matter up with Archer, who, on his part, took the precaution to take the matter up with his counsel, Browne, Lembke and Shaw would not have been permitted to return to work on the next shift. It is so found. Shaw and Lembke left the job about 3 hours before the close of the shift at 7 a.m. Lembke testified that, without dispute, as they left she noticed that the sealer in question was operating. Shaw, on the other hand, testified that she did not notice it.55 55 Since Supervisor Elizabeth Cook testified that the sealer had to have some repairs "which took about 45 minutes," which indicates the sealer was in condition to be operated, the undersigned credits Lembke's testimony that it was in operation when the two girls were sent home. INJECTION MOLDING COMPANY 689 Shaw was present at the plant when the June 30 representation election was held. After the close of the election, Shaw had occasion to go to the Monroe Inn, a tavern located across the street from Respondent Company's plant. When Shaw entered the um she found Forelady Dorothy Rodgers and Alex Petrovic, brother of Foreman Robert Petrovic, at a table in the inn. Rodgers then addressed Shaw. And the details of what took place on this occasion between Rodgers, Petrovic, and Shaw are set forth at length hereinabove and are incorporated herein to the same extent as if reiterated here Rodgers' statement on the occasion just next above-referred to constituted a threat that all CIO girls are going to be eliminated from the Injection Molding "and we are going to see that you do." Shaw was notified by telegram on July 25 of her termination. And a day or two after receipt of the telegram, she received a notice as follows: July 25, 1950 Nona S. Shaw: For reasons of economy and proper production control, we have decided to eliminate the 11:00 P. M. to 7 A. M. shift in the Bottle Department. It has been necessary to reallocate our personnel accordingly. We, therefore, regret to advise that as of this date, because of the elimination of this shift, we will have to terminate your services. If at any time we resume the night shift operations, we will be glad to consider you for employment if you desire. (Emphasis supplied.) INJECTION MOLDING COMPANY Under date of September 8, 1950, Respondent Company wrote Shaw as follows: Mrs. Nona Shaw 636 Norton Avenue Kansas City, Mo. Dear Mrs. Shaw: We acknowledge receipt of your letter dated August 31, 1950, in which you requested a service letter. You were first employed by our Company on February 2, 1950. You worked in the Bottle Assembly Department, where your duties consisted of operating printing machines for the purpose of placing print on plastic bottles, operating sealing machines which heat seal the bottoms on the bottles, and testing bottles for leaks by use of an air machine You continued in that capacity until July 25, 1950. On that date you were terminated because we discontinued the midnight shift in the Bottle Assembly Department, in which you were working, due to the fact that our Production Department was not able to keep up with the Bottle Assembly Department, and there was not sufficient work for the employees on the midnight shift to continue working. Reasons of economy and proper production control made this step necessary. At all times while you were in our employ you were an able, calm. satisfactory and industrious employee (Emphasis supplied.) With kindest regards and best wishes, we are Very truly yours, INJECTION MOLDING COMPANY /s/ W. K. Archer W. K. Archer, President WKA;hm Registered Mail Return Receipt Requested 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ,About 3 months after her discharge, Shaw , in company with Emma Bandy, called at the plant to see Archer with reference to reemployment or reinstatement and was advised by Mayo tiiat,,Archer was out of town. About a week later the two , returned to the plant and on this occasion did see Archer and asked for enployme ii . Archer stated that he didn't need any help at that time but would keep them in mind. In connection with Shaw's discharge, Archer testified: Q. You determined to terminate or layoff Nona Shaw , isn't that correct? A. I did terminate Nona Shaw. Q. Yes, on July 25? A. I believe I did. Q. Upon what basis did you determine that she should be terminated? A. Oh, in my opinion 'she wasn't as adapted to the work she was doing as others and the fact that perhaps that she had in my opinion been insubordinate in her work-- Q. (Interrupting) She had been insubordinate , you say? A. Well, she refused to do a job that was assigned to her . I assume that would influence my opinion, yes. Q. That was refusal to complete the sweeping up in the basement job? A. I think that is right. Q. Is that why you determined to let her go? A No, I didn't say that. Q. What did you determine , why did you determine to let her go? A. These factors. Q. Which factors' A. That I--wait a minute. Let me answer, will you? Q. I'm sorry, I'm sorry, go on. A. The fact that she had been insubordinate and I felt there was other operators who were probably better than she was. 56 Q. Do you know what operation she was doing then? A. She had done several operations. Q. Do you know which ones? A. She put bottoms in the bottles. Q. Do you remember whether she was good or bad at that? A. I don't recall at this time. That particular job would not be one that you could de- termine efficiency very well, because most people can put bottom in bottles. It is clear from the record that at Foreman Petrovic's,instructions to Supervisor Elizabeth Cook on thefirstdayofthe return of the strikers to work following the settlement of the strike, Nona Sli$iwi and Lembke were assigned to a job which was no part of the bottle department' futictld i$; It ills in a partly unlighted basement and required the work normally performed by a jaiiii8F BE a. ch$iwoman. When Shaw and Lembke complained that it was discrimination, they were i81d by Petrovic tb "time out" and the timecards of both Shaw and Lembke were wiihdrawn from the rack. It is found elsewhere herein that by this conduct Respondent Com- pany intended t6 terminate employment of both women on this 6ccasion; and but for the inter- vediion of Riiil'tefiliaugh of the UAW-CIO would have done so. Archer's testimony, next above, is characteristic S. much of his testimony covering abilities of the dischargees in the bottle assembly departiiieiii , bf which more in concluding findings below. The last paragraph of Shaw' s service letter from the Company reads as follows: At all times while you were in our employ you were an able, calm, satisfactory; and industrious employee. (Emphasis supplied.) At the time of her discharge on July 25, Shaw, who had the lowest seniority of any of the discharged bottle assembly department employees , nonetheless had seniority over at least seven of the retained employees. On the basis of the foregoing findings and the additional findings applicable to all discharged bottle assembly department employees , it will be found below that by the discharge of Nona re it is clear from Archer's testimony that he resented the fact that Shaw had taken her assignment to the basement cleanup job up with Rinkenbaugh . But inasmuch as he had with the advice and consent of his attorney agreed that Shaw and Lembke be paid for the time lost on the shift on that occasion, he may not now contend that Shaw' s discharge was justified by reason of his now contending that she was insubordinate . It is so found. INJECTION MOLDING COMPANY 691 Shaw on July 25, 1950, the Respondent Company discriminated in regard to the hire and tenure of employment of said Shaw in violation of Section 8 (a) (1) and (3) of the Act. (f) Nadine Ring Ring was employed by Respondent Company on August 24, 1949, and was assigned to the bottle assembly department , the only department in which she worked while employed by Respondent Company . At the time of Ring' s employment , Dorothy Rodgers was forelady over the entire bottle department and personally supervised the day shift ; while the Cook sisters, Elizabeth and Elma Lou , were supervisors over the evening shifts , on which they rotated. Ring joined the Mine -Mill Union and later joined the UAW-CIO local in February 1950. Ring was among those present at the time of Archer ' s speech during March and according to Ring' s version , Archer said in substance that the CIO wasn 't going to get in; that he would close his doors before he would have it ; and that "Pete Rinkenbaugh had got one man killed and wasn' t going to get anything like that over there ." 5T (Company' s plant.) With reference to Archer' s speech about March 7, Ring testified- Q Tell us what Mr Archer said on that occasion as near as you can recall? A Mr. Archer said that he was putting Elsie May back to work because he wanted to and he thought it would be nice if we had a little union of our own and that our dues would be small and if something happened it could be straightened right there. In addition to stating that he put ElsieMay back to work because he wanted to , Archer stated that Pete Rinkenbaugh did not have anything to do with her being returned to work. Ring joined the strike of April 15 and she "walked the picket line.' She testified that while on the picket line Archer would stop and talk "to us girls' and told them he didn't see why they didn' t come back to work , " that there wouldn't be any discrunination and everything would be just like it was before." Ring returned to work after the strike settlement and was assigned to the midnight shift She then asked for a transfer from the midnight shift to some other shift . The request made of Dorothy Rodgers . Ring testified: Q Do you recall what you said to Dorothy Rodgers and what she said to you? A. I called her on the telephone and asked her if there was any chance of getting back on the day shift and she said , "Yes, I believe there is," she said, " I've been wanting to make some changes ," and she said , " next week there is going to be some big changes." Q. Did you speak to Rodgers subsequently about such transfers? A. Just the one time I called her. Q. Were you ever transferred to the day shift? A. No. Q. When were you discharged by the Company? A. On July 25, 1950. Ring was advised of her discharge by a letter being placed under her door while she was on vacation. On or about September 26, Ring received a telegram from Respondent Company that there was an opening for her and if she was interested to come down and he would talk to her. She went to Respondent Company's plant on September 27 and talked with Archer . Thereafter, she returned to work at 85 cents per hour. When she was terminated on July 25 , she was re- ceiving $ 1.05 on the midnight shift. S° The time of discharge, Ring received a letter as follows: 57 There is some testimony in the record to the effect that during a strike on the premises of a company other than that of the Respondent Company's premises , someone was killed. Insofar as the instant record discloses, there is no evidence of violence or other improper conduct by any of the claimants herein, committed -during the strike. nor does or did the Respondent Company so contend. Ring's testimony to the effect th,it Archer testified as quoted next above is credited by the undersigned. 58 The Respondent Company contends in substance and effect that Ring 's employment on or about September 26, 1950, was a new employment and not a reinstatement . Since it is found herein that her discharge on July 25 was discriminatory , she was entitled to rein- statement at her former rate of pay. It follows that her reinstatement at a lower rate of pay was discriminatory ; and is so found. 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD July 25, 1950 Nadine Ring: For reasons of economy and proper production control, we have decided to eliminate the 11 P . M. to 7 A. M. shift in the Bottle Department. It has been necessary to reallocate our personnel accordingly . We, therefore, regret to advise that as of this day, because of the elimination of this shift , we will have to terminate your services. If at any time we resume our night shift operations , we'll be glad to consider you for employment if you desire. (Emphasis supplied.) INJECTION MOLDING COMPANY Under date of September 16, 1950, Respondent wrote Ring as follows: September 16, 1950 Mrs. Nadine Ring 426 Prospect Ave. Kansas City, Mo. Dear Mrs. Ring: This will acknowledge receipt of your letter dated September 6, 1950, in which you request a service letter. You were first employed by our Company on August 24, 1949. You worked in the Bottle Assembly Department where your duties consisted of operating printing machines for the purpose of placing print on plastic bottles, operating sealing machines which heat seal the bottoms on the bottles, and testing bottles for leaks by the use of an air machine. You continued in that capacity until July 25, 1950. On that date you were terminated because we discontinued the midnight shift and the Bottle Assembly Department, in which you were working, due to the fact that our Production Department was not able to keep up with the Bottle Assembly Department , and there was not sufficient work for the employees on the midnight shift to continue working Reasons of economy and proper production control made this step necessary. At all times while you were in our employ' you were an able, satisfactory and indus- trious employee. With kindest regards and best wishes, we are Very truly yours, INJECTION MOLDING COMPANY /s/ W. K. Archer W. K. Archer, President WKA:hm Registered Mail Return Receipt Requested After Ring's return to work on September 27, Rodgers inquired concerning certain former employees. Ring testified: Q. (By Mr. Hoffman) After your return to work in September, did you ever discuss with any of your supervisors the lay-offs of any other people than yourself? A. Yes Q. To whom did you speak and what was said? A. To Dorothy Rodgers She asked me if Emma Bandy, Louise Lembke and Nona Shaw and Mildred Spangler were working , if I knew, and I told her as far as I knew they wasn't and that Nona Shaw's husband had been laid off and she really needed her job. o a a a s e a INJECTION MOLDING COMPANY 693 Q. (By Mr. Hoffman) Do you recall when this conversation with Dorothy Rodgers took place? A. Yes. It was December 27. Q. How do you remember that date? MR. BROWNE: December 27? MR. HOFFMAN: December 27? A. Well, it was around Christmas time and the Company had given a Christmas party for the employees, and I didn't go to the party, so it was the day I went back to work and Dorothy called me up from the place I was working to tell me she had a Christmas bonus for me, and that it was in the coke machine and she would get it for me . She then sit down there and talked to me, and asked me if since I was back to work if my charges would be dropped and I told her I didn't know. (Emphasis supplied.) Ring testified, without dispute, that she had never had any complaints concerning her work from Dorothy Rodgers or any other supervisor while she worked in the bottle assembly department. The record shows, without dispute, that at the time of Ring 's termination on July 25, she had seniority over at least 15 of her fellow employees in the bottle assembly department. The record discloses that pursuant to a telegram from Respondent Company, Ring returned to work on or about September 26, 1950, and was told by Archer that she was being employed as a new employee at a starting rate of 85 cents per hour, whereas at the time of her dis- charge on July 25, 1950, she received $1.05 per hour , of which 10 cents represented the differential of 10 cents per hour for midnight shift. 59 On the basis of the foregoing findings and the additional findings applicable to all discharged bottle assembly department employees , it will be found below that by the discharge of Nadine Ring on July 25, 1950, the Respondent Company discriminated in regard to the hire and tenure of employment of said Ring in violation of Section 8 (a) (1) and (3) of the Act. Contentions of the Parties as to the Six Bottle Room Dischargees The Respondent Company, in substance and effect, contends that: (1) Economy and proper production control required elimination of the midnight shift on which the six dischargees were allegedly employed ; and(2) as to each bottle department employee selected for discharge, such selection was made on the basis that they were less experienced, capable, and efficient than the employees retained on the job. The counsel for the General Counsel, on the other hand, in substance and effect, contends that (a) said dischargees were not selected for discharge as members of the midnight shift, but by reason of the fact they had gone on strike and persisted to the end thereof in strike activities as members of UAW-CIO; and (b) all dischargees had greater length of service and seniority than many of the employees, in that the discharged employee with the least seniority had seniority over at least 7 retained employees and the other dischargees had seniority over 10 to 15 retained employees, and each of the 6 were, as stated by Respondent Company's service letters "at all times while you were in our employ you were an able, satisfactory and industrious employee." As to contentions ( 1)and(a), which will be considered jointly for obvious reasons, the record shows no contention by the General Counsel that some reduction in force was not warranted whether it be from the midnight or other two shifts, since it appears all shifts performed the same functions, used the same machines, at the same location, and varied only in the shifts worked. It is true that the letters or notices of termination to each discharged bottle room employee dated July 25, 1950, indicated that membership on such shift occasioned the discharge, the notices, in part, read: For reasons of economy and proper production control, we have decided to eliminate the 11 P. M. to 7 A. M. shift in the Bottle Department. 69As found above, Hobbs contended that she had returned to work September 25 at an agreed rate of pay equal to that which she received when discharged July 25 . The Company denies such contention. Hobbs' and Ring's contentions on this point are further referred to below. 283230 0 - 54 - 45 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It has been necessary to reallocate our personnel accordingly. 60 We, therefore, regret to advise that of this date, because of the elimination of this shift, we will have to termi- nate your services. On various dates between September 8 and 16 , each of the six girls above- referred to re- ceived identical service letters , except as to names and dates. The third paragraph of such letters read: You continued in that capacity until July 25, 1950. On that date you were terminated because we discontinued the midnight shift in the Bottle Assembly Department , in which you were working, 1 due to the fact that our Production Department was not able to keep up with the Bottle Assembly Department. . . . It is clear from the foregoing as to Timmons and Hobbs that they must have been included among the dischargees for reasons other than those assigned by the Company's letter of dis- charge and their service letters. We now consider General Counsel's contention (a), to the effect that the six dischargees now under consideration were effected to discourage union or concerted activities on behalf of the UAW-CIO. It has been found above, in substance, that following the enforced disaffiliation of Mine-Mill by the CIO, and the advent of the UAW-CIO, Local 132, with its demand for recognition and bargaining rights, together with the additional claims for recognition and rights made by an alleged successor to the rights under the Mine-Mill contract of June 21, 1949, with the ex- piration date of July 1, 1950, a further demand by a UAW-CIO area director for bargaining rights all as found and detailed in section III, A, 1, above, resulted in Archer's attempt to promote an independent or company union and his assistance through Forelady Dorothy Rodgers to induce bottle department girls to join an alleged AFL union or the LAM, all of which, as described above, led to or preceded the April 17 strike. Thereafter, followed the strike settle- ment; the return to work of the strikers ; the representation election; and the sundry and divers events preceding the discharges from which the undersigned found above that Archer had determined that he would not permit a CIO affiliate to organize his plant . That he succeeded in such determination is clear from the record . As to Respondent Company's contention (1) above, the undersigned finds same to be without merit; and as to General Counsel's contention (a), the same has merit. 62 60It should be noted that as to these six bottle room employees, their shift assignments on July 25 were the same as those assigned on June 5 , the first workday following the strike settlement, at which time Lembke and Shaw, who worked the 3 p. m. to 11 p. m. shift before the strike, and Ring and Bandy, who worked the 7 a . m. to 3 p. m. shift before the strike, were arbitrarily assigned to the midnight shift, while Timmons and Hobbs , who worked the 7 a. m. to 3 p. m. shift before the strike, were each assigned to the 3 p . m. to 11 p. m. shift. 61 It should be noted, that as found hereinabove in the consideration of their separate cases, that Timmons and Hobbs were not working on the midnight shift when discharged. 62 It is apparent that Archer knew which of his employees were members of the CIO. He testified: Q. Did you know among other things who the C.I.O. adherents in the plant were? A. Well, I had seen the people on the picket line . I assume they were C.I.O. Q. Did that help you identify as C.I.O. adherents to you? A. I imagine it would, yes. Archer recalled that Bandy and Hobbs were known to him as CIO people . He further testified: Q. Did you know who the A.F.L. were in your plant? A. I knew who the girls were that worked during the strike. And as to employee Lembke , Archer stated "I know she was on the picket line . I had seen her, yes." And as to Timmons, he stated: "I think she was out there. I don't recall seeing Timmons too much." Q. How about Nadine Ring? A. I recall seeing her. Q. You say you do? A. Yes. Q. On the picket line? A. Yes. INJECTION MOLDING COMPANY 695 As to contentions (2) and (b), Archer testified that he personally made the decision to and did select all those discharged on July 25. With reference to time necessary for one to learn all the operations in the bottle assembly, Archer testified: Q. (By Mr. Sacks) When you said that it took, Mr. Archer, one to several days to learn to be an operator in bottle assembly, did you mean on one machine or all machines? A. Oh, it depended on what they were doing. I'd say that you could learn to operate all machines in a day or two days. During the hearing, Archer admitted that he had no independent recollection of the reasons why he retained certain employees rather than the dischargees; and further admitted that he did not discuss the qualifications of the night shift employees with the latter's supervisors. With reference to Nona Shaw's discharge, Archer testified: Q. Upon what basis did you determine that she should be terminated? A. Oh. in my opinion she wasn't as adapted to the work she was doing as others, and the fact perhaps that she had in my opinion been insubordinate In her work-- Q. (Interrupting) She had been insubordinate, you say' A. Well, she refused to do a job that was assigned her. I assume that would Influence my opinion, yes.' Q. That was the refusal to complete the sweeping up of the basement job? A. I think that is right. Q. is that why you determined to let her go? A. No, I didn't say that. Q. Why did you determine to let her go? A. These factors. Q. Which factors? A. That I--wait a minute. Let me answer, will 'you? Q. I'm sorry, I'm sorry, go on. A. The fact she had been insubordinate and 'I felt there was other dpe'rators who were probably better than she was. Q. Do you know what operations she was doing then? A. She had done several operations. Q. Do you (stow which ones? A. She put bottoms in the bottles. Q. Do you remember whether she was good or bad at that? A. I don't recall at this time. That particular job would not be one that you could de- termine efficiency very well, because most people can put bottoms in a bottle. Q. What job did she do that Y'o'u could deierttiine her efficiency from? A. I noticed herotioccasions.Ithought'shbprobably wasn't as fast an operator as she-- Q. (Interrupting) You say you probably thought so. Did you think so or didn't you? A. I did. Q. You did? A. Yes. 0 Archer further testified: Q. A. Q. A. Q. A. Q. A. Q. A. Q. What about Nadine Ring? You determined to let her go, correct? Yes, I determined to let Nadine go. What was the basis for that? I thought there was Others better qualified. Do you know what operations she was doing? She worked on various operations. Which ones? Printing, sealing, testing. What sort of an operator was she? I would say she was a fair operator. Fair? Was there any other reason why you let her go aside from the fact you con- sidered there were others more suitable? 66It should be noted that it was Shaw who along with Lembke was assigned to a basement cleanup job on the first shift worked after settlement of the strike, and it was Shaw whom Dorothy Rodgers, forelady of the bottle room, informed on June 30 that all CIO girls would be fired. 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. No. Q. I mean was there any insubordination there? A No The Respondent Company refused to recognize seniority in selecting the employees for the alleged economy measure . The record discloses that the Mine-Mill contract due to expire July 1, 1950 , contained seniority recognition and procedure ; that the strike -settlement agree- ment of June 2 provided that no discharges might be made prior to the June 30 election, except on the basis of seniority ; and on July 7, 1950, the Respondent Company posted a notice as follows: NOTICE TO THE EMPLOYEES OF THE BOTTLE ASSEMBLY DEPARTMENT July 7, 1950 DUE TO THE FACT THAT THERE IS A SHORTAGE OF MACHINE OPERATORS IN THE PRODUCTION DEPARTMENT, WE HAVE DECIDED TO TRANSFER SOME OF THE EM- PLOYEES IN THE BOTTLE ROOM TO THE PRODUCTION DEPARTMENT. THIS TRANSFER, OF COURSE, WILL BE MADE ON A SENIORITY BASIS. IF ANY OF THE EMPLOYEES ARE INTERESTED IN A TRANSFER TO THE PRO- DUCTION DEPARTMENT, PLEASE ADVISE THE SUPERVISOR, MRS. DOROTHY ROD- GERS. HOWEVER, WE WISH TO ADVISE THAT ANY EMPLOYEES WHO DESIRE TO BE TRANSFERRED, WILL LOSE THEIR SENIORITY IN THE BOTTLE ASSEMBLY ROOM. (Emphasis supplied.) /s/ M. L. DAVIS The above notice is dated July 7 , 1950, at which time it is true the Company had no existing collective-bargaining contract with any labor organization. However, it is clear and definite admission to the effect that employees in the bottle assembly department had seniority which was recognized by the Company within such department and binding upon the Company. It is so found. On the basis of the foregoing , it is clear that the contention of Respondent Company that Archer selected the most experienced , capable, and efficient employees for retention on July 25 is not supported by the credible testimony , and on the contrary it appears that the claimants herein were selected because of their union and concerted activities . Respondent Company's contention (2) is without merit ; and General Counsel's contention (b) has merit. It is so found. In connection with the findings pertaining to Emma Bandy ' s discharge set forth above, it has been found that on or about August 15, the Company reinstated a midnight shift and failed to recall any of the six bottle room employees now under consideration . An entire new group of employees was hired . On cross-examination Archer testified: Q. Did you Mr . Archer , consider hiring Timmons , Shaw, Lembke , Bandy , and Hobbs in August when you hired new people? Did you consider hiring the six CIO girls? A. They didn't say they desired to be hired sa As found above , the letter of dismissal, in part reads. If at any time we resume our night shift operations , we will be glad to consider you for employment if you desire (Emphasis supplied.) While such statement may, by a cursory reading , indicate that the Company intended to and would reinstate the discharged six girls at the first opportunity , the adroit drafting of the letter , the limiting of it to " night shift operation ," and leaving up to the dischargees the burden of learning of any resumption of "night shifts" adds further confirmation to the undersigned's conclusion that Respondent Company and its manager were and are determined to keep CIO adherents out of the plant . It is so found. "This answer demonstrates the effect of the adroitly drafted letter of dismissal sent to the six dischargees of July 25, from the bottle assembly department. INJECTION MOLDING COMPANY 697 Concluding Findings The foregoing and the entire record discloses and the undersigned finds that by the discharge of Emma Bandy , Ruby Hobbs, Hazel Timmons , LouiseLembke , Nona Shaw , and Nadine Ring on July 25. 1950 , for assigned reasons found to be without merit as to each dischargee, the Respondent Company discharged each of said above- named employees because of their mem- bership in or activity on behalf of the UAW-CIO Local 132, thereby discouraging membership in said Union, and interfering with , restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, all in violation of Section 8 (a) (1) and (3) of the Act as to all 6 of the above-named dischargees , and as to Ruby Hobbs , the Company by reducing her pay from 95 cents to 85 cents on September 26, because she informed it that she would not abandon her charge of September 6, also violated Section 8 (a) (4) of the Act. (g) Evelyn Russell Russell was employed by Respondent Company on September 21. 1949 , and was assigned to work in the bottle assembly department. She first joined the Mine, Mill & Smelter Workers Union and thereafter joined the UAW-CIO local during the strike of April 17 and participated in picket line activity . While on picket line duty , Archer talked to her . In this connection, she testified: Q. Can you remember when that was, the beginning of the strike , the end of the strike, or when? A I don't know just when it was , but I do know it was when we were walking the picket line, but when it was I couldn 't say , but I do know I was walking the picket line Q. Tell what happened. What did he say to you and what did you say to him, if anything? A. He was standing in the doorway where they bring the trucks in and out and unloaded them, when I walked by I was closest to him, there was two other girls with me, but I was closest to him and he asked me why we didn't come back in, that everything would be like it was when we went out , and I told him myself, I made the remark, I said , well, we will when we can all come back together , and that was all that was said . We just kept walking. Russell returned after the settlement of the strike to her former department and was as- signed to the afternoon shift, and as has been found hereinabove, she described , how in Jan- uary 1950 "before any word was mentioned of the CIO," Rodgers had called Russell at the latter's home, discussed assignments to shifts, asked Russell for her preference, and when the latter stated she preferred the day shift since she liked to be with her son in the evening, Rodgers assigned her to that shift . After the strike, however, she was assigned to the after- noon or 3 p. m. to 11 p. m. shift. Russell testified that she was off sick in June and a part of July on sick leave, during which time she reported to the office every day during the first week and spoke with Mrs Mayo and informed her that she was off sick with a kidney infection; that she was going to the doctor and didn't know when she would be back. Before reporting to Mayo she asked to speak with Forelady Rodgers and was told by Mayo that Rodgers was busy and that Mayo would deliver her message. During the second week that she was out ill she made it a practice to call every other day and reported that when she got released from the doctor she would be in. On each occasion she would speak with Mayo and asked for Rodgers . Russell thinks she was out about 3 weeks on this occasion. On the third week she called possibly once or twice. She testified: Q. Now will you state whether or not Mrs. Rodgers ever called you? A. Yes, she did call me. Q. When? A. Well, I had just gotten back from the doctor's and she called me, it was in the afternoon, but I couldn't-- Q. (Interrupting) Was this during the period you were out? A. During the period I was off sick. Q Can you place it more closely, whether the first week or the second week or the third week? A. Well, it was the last week, so it would have been the third week. Q What was said? A. I just came in the door and the phone rang and I picked it up, and she asked me if this was Evelyn speaking , and I said yes, and she said you haven't called in or let us know anything, she said as you haven't called in or let us know anything we are taking you off 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the payroll. Then I explained to her how I had called in every day and asked for her, and Mrs. Mayo said she'd take the message , and I explained to her I had just came from the doctor, and had my release and was ready to come to work the following day, so she said she'd speak to Mr. Archer and call me back. Q. Did she call you back? A She did. Q. And you returned to work the next day? A. Yes. Russell testified that after the strike she was informed and told not to leave her machine without being relieved or else she would be fired immediately . Rodgers made that statement and repeated it a number of times. On the last day she worked , according to Russell, which was on a Saturday at a time when Rodgers was away on vacation and Elizabeth Cook was in charge on this particular day, Russell asked to be relieved several times and Elizabeth Cook being there practically all of the time and watching Russell , according to the latter , ignored the fact that she had asked for relief. When she did not get it she decided that she could not go back " because I had to have relief due to the fact that I had just gotten back in with a kidney infection , and I really couldn't work without relief." Russell testified that the incident on which she was denied relief hap- pened on the last day she worked which the record shows to be August 2, 1950 . In connection with her ceasing of work at this time , Russell testified: Q. (By Mr. Sacks) In what manner did you terminate your employment on this day which has been agreed upon as August 2, Mrs. Russell? - A. Well, I just called in and told Dorothy that I wouldn 't be in, and she didn't ask me why, and I didn't tell her, because I felt like it wouldn' t do any good. MR BROWNE: May that be strickenMr. Examiner , may that be stricken Mr. Examiner? TRIAL EXAMINER WARD: The volunteered portion may be stricken. 65 Russell testified that on or about September 25 or 26, she received a telegram from the Respondent Company, which the record indicates reads as follows, omitting the name: In view of fact a vacancy has now arisen in Bottle Assembly please advise by 10 . 00 a. m. September 27th if you would be interested in obtaining said employment. INJECTION MOLDING COMPANY As has been found in some detail in connection with the discussion of Ruby Hobbs ' discharge described hereinabove , it was agreed by Archer that the two women would be employed at the rate of pay they received at the time of their termination on July 25, 1950 , as to Hobbs, and August 2, as to Russell, namely 95 cents per hour , with a 10-cent differential for midnight shift. While the two women asked for seniority rights , Archer was not prepared to definitely agree to and did not agree on the seniority demand. As Archer was about to send for or go for Dorothy Rodgers to arrange for the assignments of Russell and Hobbs , they gave him a docu- ment or documents signed by each, in evidence as General Counsel 's Exhibit No. 9, which document has been set forth and quoted in full in connection with Hobbs' discharge referred to above, and is incorporated herein by reference. Thereafter , Archer consulted with his attorney, Browne, who dictated the following letter, insofar as Russell is concerned: September 26, 1950 Mrs. Evelyn E. Russell 909 Indiana Ave Kansas City, Mo. Dear Mrs. Russell: We offered you employment with this Company because of vacancies which have arisen. We are willing to employ you now without prejudice to the charge which youhaiefiled 65 That portion of the answer reading "because I felt like it wouldn't do any good" is the portion referred to by the Trial Examiner as stricken and it is. 66Copy of the telegram to Russell is not in the record but the undisputed and credited testimony discloses that she and Ruby Hobbs received identical telegrams at the identical time recorded as requested on September 27, 1950. INJECTION MOLDING COMPANY 699 with the National Labor Relations Board . In other words so far as the Company is con- cerned you can offset your Labor Board charge if you desire . That has nothing to do with your employment now. However , since your present employment is necessarily a new employment , you will therefore return with seniority beginning today , and at the starting rate we are now re- quired to give under the contract we have with the Union. Very truly yours, INJECTION MOLDING COMPANY Is/ W. K. Archer W. K. Archer, President W. K. A.:hm Russell returned to the plant and to work on the following day and received the hourly rate of 85 cents. About the third day after she started to work on this September 27th employment, she complained to Archer about conditions in her department and that "Doherty" was hollering at me constantly (which portion of the testimony was, on motion of Respondent Company's counsel, stricken). Archer talked to Russell later , in this connection, and the latter testified: Q. What was said on that occasion? A. He came to my machine, and asked me what I was going to do about the appeal case down to the Compensation Board. Q. That is the unemployment-- A. (Interrupting) The unemployment. Q. And you had appealed from some earlier decision, had you! A. Yes. Q. And Mr. Archer asked you what you were going to do about it? A. What I was going to do about it. Q. Did you answer him? A. I did. Q. What did you say9 A. I told him I didn't know what I was going to do about, that I hadn't quite decided. That was the first time he asked me. Q. Did you ask him on a later occasion? A. (Interrupting) He asked me another time about it. Q. What did you say then? A. I told him I really hadn't decided , I really didn't know what I was going to do about it. The record discloses that Russell, returned to work on September 27, 1950, and worked until October 5, 1950 . During this time she complained to Archer concerning Dorothy Rodg- ers' conduct toward her and asked him if he would care to go to her machine . "and he said he'd take my word for it , and I asked him what he was going to do about it, and he said Dorothy was running things back there." (Emphasis supplied.) It was after the next above conversation that Archer went to Russell's machine and brought up the question as to what she was going to do about her "appeal case down to the compen- sation board." Russell further testified: Q. And on the last day you worked at Injection Molding , which the exhibit indicates was October 5, 1950, did you speak to Mr. Archer on that day? A. Yes, I did. Q. Tell us what he said? A. Well , Dorothy told me, Dorothy Rodgers told me , to go into the office, that Mr. Archer wanted to see me. So I went in there and I had went down the day before to my appeal hearing , and he asked me why I went down . He says, why did you go down when you told me you wouldn't. Well, I hadn't told him I wouldn't go down, and I told that the reason I went down because that the same thing was going on at that time as it was when I went down to start with, and there was really nothing much said other than he told me to pick up my check, and I said now , and he said right now , and that was all that was said then. (Company's Exhibit No. 5 admitted in evidence.) 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It appears that Russell was discharged on October 5, 1950. The record discloses that on September 20, 1950, the Company wrote Russell as follows. September 20, 1950 Mrs Evelyn Russell 909 Indiana Avenue Kansas City, Mo. Dear Mrs. Russell This will acknowledge receipt of your letter of September 12, 1950 , in which you requested a service letter. You were first employed by our Company on September 21, 1949, in the Bottle As- sembly Department . Your work consisted of operating printing machines for the purpose of placing print on plastic bottles , operating sealing machines which heat seal the bottom on bottles , and testing bottles for leaks by the use of an air machine. You continued in this capacity until August 2, 1950 , at which time you resigned from our employ. You did not advise us of the reason of your leaving , and we have no knowl- edge concerning it. We wish to state further that while you were employed by us that we found you to be a capable, industrious , and conscientious employee in every respect. Very truly yours, INJECTION MOLDING COMPANY /s/ W. K. Archer W. K. Archer President WKA:hm Registered Mail Return Receipt Requested The record discloses that Russell filed a charge with the Board under date of September 6, 1950, alleging her discriminatory discharge on or about July 28, 1950. While the complaint does not specifically allege the date of Russell' s alleged discrimi- natory discharge, but such alleged illegal discharge as of on or about August 2, 1950, was fully litigated during the hearing. The legality of Russell's termination as of October 5, 1950, was not questioned by the General Counsel in the instant proceedings , nor by the Respondent The General Counsel contends in substance and effect that Russell' s separation from her position on or about August 2, 1950. constitutes a constructive discharge because of the Company' s alleged refusal to furnish relief for rest periods and breaks to Russell, with the result that due to a kidney infection , known to the Company, Russell was forced to discontinue working at the Company' s plant. The preponderance of the credible evidence does indicate that following the return of the UAW-CIO adherents to the plant following the strike settlement that requests for relief made by such returnees , was on occasion denied or ignored and that the ruling requiring employees to remain at their machines until relieved was not enforced against nonstrikers to the extent that it was against CIO strikers. It appears , however, that Russell made no issue of her claimed denial of relief at the plant and that she merely went home at the close of her shift and later phoned her forelady, Rodgers , that she would not be in on her shift and added no further word . Nor did she take her complaint up with Archer by word or letter. On the basis of the - foregoing and the record, the undersigned is of the opinion that the record will not support a finding that the Company constructively discharged Russell on July 28, 29 or on August 2, 1950, and it is so found. With reference to Russell' s reinstatement or reemployment on September 26 or 27, 1950, it has been found above in consideration of Ruby Hobbs' and Russell' s employment on such date that Archer agreed to pay them the same rate of pay that they had received prior to their separation on July 25 and August 2, respectively, until they served written notice that by accepting reinstatement they did not forego any right they might be entitled INJECTION MOLDING COMPANY 701 to by proceeding to process unfair labor practice charges filed by each on September 6. 1950. As is found hereinabove, Archer thereupon consulted with his attorney then served written notice that resulted in reducing the agreed upon 95 cents per hour as wages to 85 cents per hour , and further refused to grant any seniority right under prior employment. Such conduct was and is in violation of Section 8 (a) (1) and (4) of the Act, and is so found. It will be recommended below that the Section 8 (a) (3) allegation of the Act be dismissed and that the Section 8 (a) (1) and (4) findings , above, be adopted ; and that Respondent Com- pany make said Russell whole for such loss of pay she suffered during her employment between September 26 and October 5, 1950, as a result of Archer's reducing her agreed upon pay from 95 cents per hour to 85 cents per hour. (h) Mildred Ludwig (formerly Spangler) Ludwig was employed by the Respondent Company on July 29 , 1949, and was assigned to the bottle assembly room , sometimes described as the bottle assembly department, where she worked throughout her entire employment with the Company . She joined the UAW-CIO on or about February 1950 , and at a meeting of the local of such Union during February was elected as the Union' s stewardess in the bottle assembly department. As stewardess on two occasions , earlier in her term of such office , she met and conferred with Archer or Mr . Davis, a member of top management . Davis had caused a notice to be posted to the effect that due to lack of work a layoff was contemplated. Ludwig and Rinken- baugh, UAW-CIO representative, were at a conference with Archer in connection with this particular matter . Ludwig' s second session with Archer took place in the fore part of March 1950 at the time of and on the occasion of Elsie May ' s discharge. On this latter occasion, Rinkenbaugh and Don Hayward, president of the local of the UAW- CIO, had called on Archer in connection with May' s discharge after which Ludwig was sent for and attended the conference in her capacity as a stewardess . As it is stated and found elsewhere here, May was returned to work on the next workday following this conference. Ludwig joined the UAW-CIO called strike of April 17 and was active on picket line and kitchen duties . During such strike she talked with Archer on two different occasions. With reference to the first occasion , she testified. Q. Can you tell us when the first occasion you spoke to Mr. Archer was? A. Well, the first occasion was, I'd say, about the third week of the strike. Q. Where were you at the time and where was he? A. I was sitting in front of union headquarters. Q. Tell us what happened. A. Well, he drove up in his car , he walked over to where I was sitting with Emma Bandy and Nadine Ring , and he came over and we said "Good morning" and he said "Good morning" and "How are you," and everybody was fine, and he said, "Why don't you girls come on in and go to work." I said, "No, Mr. Archer, not until we can all go back in," and he said, "You might as well come in and get back to work and let' s get things humming. There will be no discrimination of any kind, and you will all be treated alike " So we thanked him. Q. Did you tell him whether you would go back to work or not? A. No, not until we could all go in together. Q. You say you spoke to Mr Archer on another occasion? A. I did, sir. Q. Was this other occasion before the one you told about or after? A. It was after. Q. How long after? A. Oh, I think it was about 2 weeks before the strike ended. Q. Can you tell us where this conversation took place9 A. Yes, sir. He was standing in front of the shipping room door? Q. (By Mr. Sacks) You said Mr. Archer was standing by the shipping room door? A. Yes, sir. Q. Was there anyone else present at this time? A. Not with him there wasn't Q. Well, go on. A. It was in the afternoon. 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. What was said? A. Well, we was walking the picket line and as we went by, we said "Hello, Mr. Archer" and he said, "Hello, girls," and we remarked what a pretty day it was, and he says , " Why don' t you girls come in and go to work." He says, "I hate to see you out here walking," and I says, "I don't mind it at all Mr . Archer, I'm losing weight," so he just laughed and he says , "Well, I wish you girls would come back in here and go to work' and he says, "There'll be no discrimination and you'll all have your dis- crimination" [sic] and he says , " Why don't you come on back in ," and we told him no, "we'd wait until we could all go back in together." Q. Were you the only one on the picket line? A. No, I was not. Q. Who else was there? A. I believe it was either Evelyn Russell or Ruby Hobbs or maybe the two of them. Following the strike-settlement agreement executed on June 2 , Ludwig, along with other strikers, returned to work on June 5. Prior to the advent of the UAW-CIO and the ensuing strike, Ludwig had been on very friendly terms with Dorothy Rodgers , forelady of the bottle assembly department . On certain occasions when Rodgers would leave the depart- ment , she would leave Ludwig in charge . Both before and after the strike it was a general rule in the bottle assembly department that no operator could leave their machine without relief. After the strike , Dorothy Rodgers ignored Ludwig' s request for relief. In this con- nection, Ludwig testified: Q Do you recall on what occasion9 A. Yes, sir Ann Woolen and myself were on the eighth bottle sealer and we were sealing baby magic bottles for Mermen' s, and Dorothy was always standing around our machines , just listening if we were talking, discussing work . She would always come up and see what we were talking about , so I said to Ann, "Boy , I sure would like to have a relief, and I don' t know whether to ask for one or not," so Dorothy comes up there and starts packing our baby magic bottles which we had to pack ourselves, and I said, "Dorothy, may I have relief," and she ignored me. 67 On or about June 20 or 21, Ludwig received word that a cousin of hers living at Peoria, Illinois , with whom she had a very close relationship , was in a dying condition. The word had come by long distance telephone . Ludwig decided that she wished to remain at home and wait for a further call and as it was late in the evening around 11 p. m., she called Foreman Everett Epling at the plant. She testified. Q. Do you recall what time you contacted him9 A. Yes. I called him late in the evening, I'd say around 11 o'clock maybe. I had a long distance telephone call informing me of my cousin dying. 0 Q. What was said over the phone? A. I told Everett would you please tell Dorothy I would be unable to come in the following day, that I was expecting a long distance call from a dying cousin of mine, and that I would like very much to be home to receive the call, and he said , yes, he would be glad to tell her. Q. Did you attempt to contact anyone else about this problem? A. Not that night, no. Q. The next day9 A. The next day I did. Q. Whom did you contact or attempt to contact? A. About 10 of 5 I called Dorothy Rodgers' home. Q. What time9 A. About ten minutes to five. 67Rodgers testified she had never denied relief to anyone . On the basis of the record as a whole, the undersigned does not credit her denial, and finds that the episode described above by Ludwig occurred substantially as stated by her. INJECTION MOLDING COMPANY 703 Q. (By Mr. Sacks) Whom did you call? A. I called Dorothy Rodgers' home and I talked to her husband. Q. What did you say to him? A. I said, " Hello , Berl, this is Mildred," and he says, "Yes, Mildred, how are you?" and I says, "Fine," so I asked him if Dorothy was home. He said no, but he expected her any minute, so I asked him if he would please have Dorothy to call me, that I'd gotten my long distance call that my cousin had died and that I had to leave , I believe it was that night , or early the next morning, I was going to go to Peoria , and I explained to him why it was so urgent for me to leave immediately , and that I would have to be gone maybe 2 or 3 weeks , that would he please have Dorothy call me as soon as she got in. Q. What did he say? A. He said yes, he would have her to call me just as quick as she got in. ss Q. (By Mr Sacks) Did Dorothy Rodgers call you later that day? A. She did'not. Q. What did you do? I mean did you remain in the city? A. I waited until 11 o'clock that night , and I never heard a word from Dorothy, I called the plant, and I believe Everett Epling answered the telephone , and I asked to speak to Elma Lou Cook. Q. Who is Elma Lou Cook? A. She was the supervisor on that shift. Q. Go on. A. So Elma Lou came to the telephone, and I told her who it was , and I told her that I had called Dorothy's home trying to get a hold of her and that I couldn't, and I ex- plained to Elma Lou that Dorothy knew how close I was to my cousin and that I would have to leave the next morning, and I would have to be gone maybe 2 or 3 weeks. Elma Lou said--she said , " Well, where are you going, Mildred, " and I told her I was going to Peoria, Illinois, and she said that she was sorry to hear about it , but she sure would tell Dorothy. Q. Do you remember anything else in that conversation9 A. No, I don't not now. 69 6$ In this connection, Rodgers testified: Q. Did your husband tell you on or about the 21st day of June or the 20th of June that he had received a call from Mildred Spangler relating to her being absent? A. Yes. Q. What was it he told you? A. He just told me that Mildred had called and he told her that I wasn't there. By such answer, Dorothy Rodgers sought to convey the impression, in the opinion of the undersigned, that her husband did not deliver Spangler's message concerning her cousin's death or anticipated death or Spangler's request that Mrs . Rodgers call her. If said answer was in fact the complete answer, it would tend to indicate that Rodgers ' husband shared her animosity toward CIO adherents. Since Mr. Rodgers was not called as a witness, the under- signed had no opportunity to observe him in person. 69 In this connection, Supervisor Elma Lou Cook testified: Q. Mildred Spangler Ludwig said that she called the plant and talked to you and stated to you that she had called Dorothy Rodgers . She stated also that she was going to, that she told you she was going to, be gone 2 or 3 weeks. Did you have a conver- sation with Mildred Spangler Ludwig on or about June 22, 19509 A. Well, as far -as the date I don't know, but she did call me. Q. What was it that she said? A. Well, she told me that she had tried to get in touch with Dorothy , that she had called out to her home and her husband answered the telephone and said Dorothy wasn't there and so she called and told me that she had a long distance telephone call from someone that a relative of hers died that she wanted to go to the funeral that she would be out of town 3 or 4 days, and she wanted me to be sure and tell Dorothy, and I told her that I would. 704 DECISIONS OF NATIONAL LABOR RELATIONS HOARD Ludviig returned from Peoria on June 29 and voted at the Board -conducted representation election on the following day, June 30. She did not contact or see any of the Respondent Company' s officials except Miss Mayo, Mr. Archer' s secretary. They had no conversation. On the first trip to Peoria , she took but one of her little girls but on her return on June 30, she took both. While in Kansas City on June 30. Ludwig sent a nephew to the Respondent Company' s office to get her check, " So I could leave the money at home to pay the gas and lights with." While the nephew was at Mayo' s office, the latter called Ludwig concerning the visit of the latter' s nephew She asked, "Well , did you want him to get your check?" Ludwig replied , "Yes, Miss Mayo, that is what I sent him Sown there for," because she had forgotten to send a note with him. Neither Ludwig nor Mayo discussed the former's leave of absence on this occasion. Ludwig remained in Peoria until the 10th of July. She returned to Kansas City, arriving on the 11th. She testified: Q. I will ask you what happened on your return to Kansas City? A. Well, I just got in the door and the telephone was ringing, and I-- Q. (Interrupting) Who was on the phone? A. Well, I answered the telephone and it was Dorothy Rodgers. Q. Who spoke first and what was said? A. Dorothy said, "Mildred?" and I said, "Yes, Dorothy," and she says, " Being as you haven't reported for work, I'm taking you off the payroll," and I hesitated-- Q. (Interrupting) Did you make any answer? A. I said, "Thank you." Q. Was there anything further said between you and Mrs. Rodgers? A. That is all.70 Under date of September 8, 1950, Respondent Company wrote Ludwig, as follows: September 8, 1950 Mrs. Mildred Spangler 3414 East Sixth St Kansas City, Mo. Dear Mrs Spangler: This will acknowledge receipt of your letter of June 31, 1950, in which you request a service letter. You were first employed by our Company on July 29, 1949 . You worked in the Bottle Assembly Department , your duties consisted of operating printing machines for the purpose of placing print on plastic bottles , operating sealing machines which heat seal the bottoms on the bottles, and testing bottles for leaks by use of an air machine. Your employment with this Company terminated on July 11 , 1950. We treated you as having quit , and you were dropped from our payroll on July 11 , 1950, since you had not reported to work for several days previous to that time. Q. Did you tell Dorothy" A. Yes, I did. Q. What time of the day was it that she called? A. Well. I can't remember whether it was on the second shift or on the third, but it was either at the end of my second shift or the beginning of the third. It was right along in there between 11 and 12 when she called me. (p. m.) Q. Did she say anything to you about having stayed home that day? A. Well, it seems like she did, Q. Did she tell you she was going to be gone for 2 or 3 weeks , as she testified? A. Well, I understood her to say 3 or 4 days. Anyway that's what I told Dorothy. 700n cross- examination, Ludwig testified: Q. Why didn't you say something about "Dorothy I contacted you or tried to get in touch with you"" A. Because I knew the feeling was against us, the way they felt about us C.I.O. girls-- Q. (Interrupting) Oh, I see, you didn't think it would do any good? A. No. INJECTION MOLDING COMPANY 705 We wish to add that while in our employ the work which you did was satisfactory and ably performed. With kindest regards and best wishes, we are Very truly yours, Injection Molding Company /s/ W. K. Archer President WKA.hm Registered Mail Return Receipt Requested In connection with Ludwig's discharge, Archer, in part, testified: ,Q. Now let' s go to the individual cases of some of these complaining witnesses. Mildred Spangler , according to the evidence here , was dropped from the payroll on or about July 11, 1950. That is true is it not? A. That is correct. Q. What was the reason for being dropped from the payroll? A. Failure to report for work. Q. How long, if you recall, had she been absent from work without reporting? A. About 3 weeks. Q. The evidence shows that Dorothy Rodgers talked to her and told her that she was being dropped. At whose direction did Dorothy Rodgers make that call? A. Mine. Q. Did you consult with me prior to making that decision? A. Yes, sir. Q. Did you relate the facts, that she had been absent without excuse, to me? A. Yes, sir. Q. Were you at any time aware that she had asked for 2 or 3 weeks leave , if she did, in fact, ask for such leave? A. No, sir. Q. Were you advised that she had asked for a leave of 3 or 4 days several weeks before? P A. I believe I was advised that she had asked for leave of 3 or 4 days. (Emphasis supplied.) It has been found heretnabove that , on or about February 15, 1950, Spangler (as she was known at that time) was elected as stewardess in the production department of the Com- pany' s plant by Local 132, UAW-CIO; in which capacity she attended the conference with Rinkenbaugh and Archer concerning Elsie May' s discharge on or about March 8 ; and was active in soliciting and signing up employees in the UAW -CIO local prior to the strike. The record indicates that prior to the advent of the UAW-CIO and Local 132, Rodgers and Spangler were on good terms but thereafter and following the strike, the contrary was true. According to the testimony of Rodgers , at the time the strike was settled on June 2, 1950 , she talked with Archer in his office. Rodgers testified as follows: Q. What did Mr. Archer have to say? A. Well, he told me that the labor dispute was over and that the girls were coming back to work. And he said that he knew that I would possibly have some hard feelings inasmuch as there was quite a few remarks made about me on the picket line, but regardless of what my feelings was [ sick that I was to bury the hatchet . And I told him it would be awfully hard to do, but that I would do my very best to follow his orders. Upon the foregoing and the entire record , it appears that Respondent Company was deter- mined to thwart and defeat any and all attempts by the UAW- CIO to organize its plant; that following the April 17 strike and its settlement, the Company, beginning on the first day the strikers returned to work, discharged Lembke and Shaw for refusing to perform duties not connected with the bottle assembly department and not considered as their duties ; on July 19 discharged Lembke the second time for requesting tobe relieved from shift duties 15 minutes 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD before shift time, because she felt ill, only to recall her July 24 with apologies, and then included her with the July 25 discharges of six employees of the bottle department described above; and lastly by the discharge of Mildred Ludwig ( formerly Spangler) on July 11, 1950, the Respondent Company has discriminated in regard to her hire and tenure of employment of said Ludwig in violation of Section 8 (a) (1) and (3) of the Act, and it is so found. (i) Nettie Harper Harper was first employed by Respondent Company in May 1943 and worked until August 1943. During this first employment , she operated an injection molding machine in the produc- tion department . Her next employment following August of 1943 with the Respondent Company began in the fall of 1945 and lasted for 1 year . On January 12, 1948, she returned to work and was continuously employed until her discharge on August 8 , 1950. During her last employment, Harper worked only in the production department operating injection molding machines. During 1950 she became a member of Mine-Mill Smelter Workers Union and subsequently affiliated with the UAW-CIO and was active on its behalf. She wore a UAW-CIO union button, which was the occasion for Foreman Banken's statement, set forth hereinabove, to the effect that Harper would make more money if she took "that union button off." Harper joined the April 17 strike called by UAW-CIO and participated in such strike by doing picket duties in which she participated almost daily . She testified: Q. Did you ever have occasion to speak to any of the foremen or supervisors or company officials while you were on the picket line? A. Yes. I spoke several times to Mr. Archer. Q. Do you recall in any one of these conversations or did you just exchange greetings or what? A. The first time that I spoke to him, Nona Shaw and I were in front of strike head- quarters and Mr . Archer had come up the street and was going in the office, and we were talking to him, and he asked us why we didn't come back to work, and I said we wouldn't go through the picket line, and the two girls that had been fired had been brought up (Bledsoe and Woolen), and I said Elizabeth Cook had told me that she didn't knowanything about the girls being trouble makers or anything about why they were fired, and then that was about all that took place in the conversation, but later on Elsie May and I were doing picket duties in front of the shop and Mike Grazda stopped by the shipping room door, and we were talking to him, and he asked us why we didn't come back to work. Q. Was there any foreman or supervisor or company official present when you were speaking to Mike Grazda? A. While we were talking to him Mr . Archer came up there and asked us to come in- - Q. (Interrupting) Who? A. Mr. Archer. Q. Yes. A. And I said that I wouldn't go through the picket line, and I said I never fully under- stood why the two girls had been fired and he said- - Q. (Interrupting)--Who said? A. Mr. Archer said they had been fired because they were trouble makers , and I said that the biggest trouble maker in the shop was over in the bottle room, and he said, "Nettie, if you come to work, you won't have any more trouble with Dorothy" (Rodgers). Q. Who was over in the bottle room? A. Dorothy Rodgers (forelady bottle room). Q. Did you make any reply to that? A. I don't remember making any reply to that. I don't know if I said something or if Elsie said something about the foreman, you know, discriminating among us, but Bill Banken came out while we were talking to Mr . Archer, and he said, Mr. Archer said, "Bill, these girls say if they come back in you won't treat them right," and Bill said that if they come back in we'll treat them like we always did, and that was the extent of the conversation then. Harper returned to work at the close of the strike, and participated in the Board election held on June 30. Following her return to work after the strike, Harper resumed her job as a machine opera- tor in the production department. On or about August 2 there had been some comment among the operators and Foreman Martin to the effect that some of the operators were producing INJECTION MOLDING COMPANY 707 more finished plastic bottles and with less rejects than others. 71 Harper's last day of employ- ment commenced at 11 p. tn. on August 7 and ended at 7 a. m. on August 8. In this connection, she testified: Q. You were on the midnight shift? A. I went in at 11 o'clock Monday night. Q. On the 7th? A. I got off at 7 o'clock, August 8. Q. Were you warned about your production on that night? A. No, I wasn't warned. When I started to work-- Q. (Interrupting) Did you speak to the foreman at all about your production that night? A. Yes, I did. Q. To Whom? A. Bob Martin. I believe that it was Elsie Ireland that I relieved and shortly after I started working I called Bob over there, and I said, "Bob , how did Elsie make her produc- tion when the machine is running like it is?" It sticking in the cavity and the cores, and I was having a heck of time, and he kinda shrugged his shoulders and said he didn't know and walked away , and pretty soon he came back and said Elsie Ireland only made 5,000, I think he said, that is how she made her production, and the machine ran as usual, and I don't have any way of knowing unless I'm told what the production is while I 'm running it. Q. Were you told on that evening what your production was? A. Not until I got off in the morning. Q. Who told you about your production? A. Bob Martin. Q. What did he say to you? A. As I was leaving to go home I walked by the desk that was out in the shop and Bob Martin was figuring up the production on the machines and he stopped me and said. you did a good nights work last night , you made almost 7,000, and I said that was pretty good, wasn't it, considering the way the machine was running, and he said, yes, that was all right, so I went home. 72 Q. Were you contacted by any of the plant employees during that day? A. Yes . I think it was about 9:30 that morning , I had been asleep about an hour, when Miss Mayo called me and said, "Nettie , Mr. Archer wants to see you in the office today, or wants to talk to you." Q. In his office' A. Yes. And I said, "Well, Miss Mayo, do you have any idea what he wants to see me about," and she said "No. Nettie." I think she said it was important, and I said, "Well, I guess I better come on down and talk to him, then, hadn't I? She said , "I think it would be a good idea." So I intended to go down and I went back to sleep, Ts and then later on that day, I believe it was around 4 in the afternoon , but I am not sure, the phone woke me again and it was Miss Mayo. Q. Did she speak to you again? A. Yes. Q. What did she say? A. She said, "Nettie, Mr. Archer wanted me to tell you that your production isn't satisfactory, and you can come in and pick up your final check any time." Q. Did you make any answer9 A. Yes. I asked her how long my production had been unsatisfactory , and she said he didn't know, that that was all she was told to tell me I said alright, and hung up. Under date of September 8, 1950, Respondent Company wrote Harper as follows: n Harper's connection with this purported condition is discussed in detail in the "Con- tentions of Parties" below. 'n Martin was called as a wittiess and was not questioned concerning the events of August 7 or 8 insofar as they pertained to Harper. '+s It should be noted that Harper 's shift was from 11 p. m. to 7 a. in., so that a call at that hour in her case would be the equivalent of calling a day worker at 9 or 10 p. m. 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD September 8, 1950 Miss Nettie M . Harper 3610 Windsor Avenue Kansas City, Mo. Dear Miss Harper: This will acknowledge receipt of your letter dated August 31, 1950, in which you request a service letter. Since January 12 , 1948, you were employed by our Company in the capacity of a molding machine operator on an injection molding machine. Your duties consisted of opening and closing the gate on the machine , removing castings from the dies, and inspecting such castings for defects or irregularities . Some of the castings produced by the machine on which you worked consisted of castings for head -light lenses, pen parts , bottles , cookie cutters, juicer parts, plastic tile, and other items. Your work continued with this Company until August 1. [ sic] 1950. At that time your employment with this Company was severed , because in our opinion your work had fallen below the quality and standard of performance which were required for this particular job. We wish to add that during this period of time , we found you to be an honest and indus- trious worker With kindest regards and good wishes, we are Very truly yours, Injection Molding Company /s/ W. K. Archer W. K. Archer ,, President WKA:hm Registered Mail Return Receipt Requested Contentions of the Parties Respondent Company contends that , ( 1) as to Harper , "She was discharged on August 8, 1950, for mis-tabulating rejects on production without explanation after being given an oppor- tunity to do so"; (2) prior to said discharge on or about August 2, 1950, Respondent Company received a production report from Harper ' s foreman which disclosed an unduly high reject count , in that "the report on its face showed that ' Scraps on No. 1 machine due to operator [Harper] throwing away good castings ;"' 74 and (3) onthemorningof August 8, 1950 , Harper's foreman turned into the management office a "report " reading as follows: 8/7/50 To M. L. Davis--Injection Molding Co. Sub-scrap on #1 mach. When I first took over shift yoke temp was too high causing quite a few rejects for the first hour. After that I checked periodically and would notice that the reject count amounted steadily . I would watch the operation for five or ten minutes during which time there would be very few rejects if any. Also while running it during the breaks I had little or no scrap. I asked N. Harper what she did while I wasn't watching her and she didn't have any comments to make, just grinned and continued running the machine. I will have to leave it up to you to decide what happened as I am at a loss to understand it.75 /s/ B. Martin As to contention (1) (which will be considered at this point insofar as it contends that Harper had been directly informed of the foreman's alleged report on or about August 2, or lCompany's Exhibit No. 9 rejected. 76Respondent Company's Exhibit No. 24 in evidence. INJECTION MOLDING COMPANY 709 had been informed or given an opportunity to make any explanation in connection with such report) Archer testified: Q. Referring to Nettie Harper , the record shows that she was discharged on or about August 8, 1950 . Did you make decision to discharge? A. I did. Q. On or about August 8 did you receive a report from Mr. Martin concerning Nettie Harper , which is in evidence as Respondent Company ' s Exhibit No. 34? A. Yes, sir I did. Q. Had you previously , about some less than a week before that time , receive a report from Martin on Nettie Harper , which I refer to now as Respondent' s Exhibit No. 9, for identification , which has been rejected? A. Yes, sir, I did. Q. What does that say with respect to Nettie Harper? A. It says, " Scrap on No 1 due to operator throwing away good castings." Q. Was No. 1 Nettie Harper? A. No. 5. Q. No. 5, but she was working on No. 1, is that it? A. That is No. 1 machine, No. 5 operator. Q. I see. Then you say that after you received Respondent's Company's Exhibit No. 34 you did what? A. I asked my secretary , Miss Mayo, tocallMiss Harper to come down and talk to me. Q. Did Miss Harper come down and talk to you? A. No, sir. Q. What did you do then A. I told Miss Mayo to call her up and tell her she was terminated. Q. What was the reason for her termination? A. Lack of cooperation. Q. Had you observed that? A. Yes, sir I observed it, I- Q. (Interrupting) Was there any other reason for her termination? A. I think the lack of cooperation was sufficient. Q. Well, at that time what was the reason for her termination A Well, there was several reasons. One was the fact that I had had reports that she was throwing the count off on our bottles and the other things that controlled my thought was the fact that she never even thought enough of it to come in and talk to me about it On cross-examination , Archer in part , testified: Q. And the foreman [Martin] told you that here was an operator that was throwing good castings, isn't that correct? A. That is right. Q. You didn't think that was cause for discharge? A. Well, in the interest of-- Q. (Interrupting) Fairness? A. Harmony. I didn't say fairness . I said in the interest of harmony, I just tolerated it. Q. You were prepared to overlook an operator throwing away good merchandise, sale of a bottle, is that your testimony? A. No, that is not my testimony. Q. What is your testimony? A. I said that I'd tolerate it. Q. You tolerated an operator throwing away good saleable bottles , is that your testimony? A. That is right. Q. You, the president and manager of a significant company in this industry, tolerate operators who throw away good castings, is that it? A. Well, I didn't want to discharge an operator on the first report I'd had of this kind. Q. You were waiting for a second report, is that it? A. Well, I wouldn't say that. I hope not to get a second report at any time. Q. You didn't, however, speak to the operator during that week following that first report , did you9 A. No, I didn't. (Emphasis supplied.) 0 • 283230 0 - 54 - 46 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. And this was the second report to the same effect (that Harper threw away good castings)? A. That is correct. Q. Did you determine that that was just cause for discharge? A. No. Q. You still didn't conclude that that was cause for discharge9 A. No. I called her to come in and talk to me about it. Q. Well, that puzzles me What is your understanding of this charge that she threw away good castings ? Does that mean she misjudged the production standards or that a deliberate thing or what? A. Well, it looked to me like she was trying to upset her count. Q. And also disposed of good merchandise presumably, isn't that so? A. Apparently. Q. And you didn't consider that cause for discharge? A. I tried to talk to her about it, yes. Archer further testified: Q. (By Mr. Sacks) Did you ever have an opportunity to discuss'the second report, referring to Respondent's Exhibit No. 34, with the foreman? A. No, I didn't. Q. But on the basis of these two reports you did not conclude that she should be discharged but concluded only that you wanted to talk to her about it, is that right? A. That is right. 0 Q. Did you have in mind that possibly that she wasn't deliberately throwing away good merchandise9 A. No, I didn't. Q. You knew that she was? A. I assumed that she was from these reports. Q. So that it was no intention on your part in calling her down at the plant to get her side of the story on that , is that correct, you assumed she was? A. I wanted to discuss it with her, I said, discuss it with her. Q. So you summoned her to the plant at 9: 30 in the morning to discuss it with her? A. I didn't summon her. I had Miss Mayo call the girl and ask her to come in and see me. Q. You caused her to be called by Miss Mayo, is that correct? A. Yes. Q. You do know, don't you, Mr. Archer . that the girls who work from 11 o'clock at night to something like 7 or 7 .30 in the morning are just commencing to get their sleep at 9:30 , don't you? A. Yes, I know that J e s o o r a • Q. (By Mr . Sacks) What finally caused you to decide to discharge Miss Harper? Wasn't it Mr. Brown's advice? A. Well, I had been governed by his advice to some extent. I discussed the matter that she had not appeared all day to discuss this matter with me in these reports, and, yes, I think that is correct , she was discharged because of that. Q. You consider her failure to report following Miss Mayo' s phone call at 9:30 to be sort of a final display of lack of cooperativeness , isn't that right? A. That is right. (Emphasis supplied.) It is clear from the foregoing and the record that at no time prior to her discharge was the alleged report of Foreman Martin, dated August 2, 1950, called to her attention; and Martin' s report of August 8 which is set out hereinabove, did not reach Archer before Harper had left work on that morning, namely August 8, and that she could have no knowledge of the report. It is further clear from the foregoing and the record that when Mayo called Harper, after the latter had retired on August 8, she said nothing to Harper concerning the alleged mistabulating of rejects on production and when Harper asked Mayo if she had any idea what Archer wished to see her about , she replied , "No, Nettie," bud did indicate, ac- INJECTION MOLDING COMPANY 711 cording to Harper , that it was important Harper then returned to bed and went to sleep and failed to awaken until called about 4 o'clock, or some 8 or 9 hours after she had gone off shift in the morning , by Mayo who then informed her that she was terminated and could come in and pick up her final paycheck at any time . In the last analysis Respondent Company based its reason for her discharge upon the fact that she failed to report before it was Archer's time to leave the plant for the day, notwithstanding that Harper was not due to work until 11 p. m., or some 7 hours before her shift time . Contention (1) is without merit It is so found. As to contention (2), the following pertains to a "so -called" report dated August 2 , 1950.76 The offered exhibit purports to be a report on five machine operators and disclosed on its face that it was worked over to the extent that Harper is identified as an operator and the only one so identified ; and her name is inserted in a handwriting other than that which drafted the proposed exhibit to indicate that she was responsible for "throwing away" good castings on machine No. 1. While Respondent Company and its counsel contend that the document proves that good castings were discarded , the document does not bear out such contention. While the document tends to indicate that there were 5 operators working on 5 separate machines , it further indicates that Harper was the only operator who worked on "4 x 4 orchid 4 oz. bottle." Moreover , there is nothing on the face of the document from which it may be determined -that any of the bottles rejected were in fact good castings , as none of the rejected bottles were produced in evidence ; and no reports for any other day's work from which com- parisons might have been made were offered in evidence. Notwithstanding that there was some testimony to the effect that Archer had sent word to all foremen to inform all the machine 76 This report was marked for identification as Respondent's Exhibit No. 9 and, upon objection by the General Counsel, was rejected by the undersigned. Inasmuch as counsel' for the General Counsel and Respondent Company both refer to such document in their briefs and argument, the undersigned, while still of the opinion that the proffered exhibit was properly rejected, has decided to discuss it briefly. The exhibit marked for identifi- cation reads as follows: Injection Molding Company Shift III 11:00-7:00 Molding Report Date 8/2 Weds. 1950 Nettie Harper Mac Oper. Standard Reject Actual Paid Variance No. Mold- Item No. Hrs. Production Count Production Over Under Thick 1 454 Orchid 4 oz. Bottle (5) 8 57750 56858 322 5030 2 3 07 White SD-30 7 8 1380 31,740 4 Natural 4 oz. Bottoms 17 8 1150 181 13,619 5 Natural 2 oz. Bottoms 3 8 1466 35 17,557 Thin 6 Natural 4 oz. Bottle 11 8 1088 47 6481 REMARKS: Scraps on #3 amounted to one casting each shot. It was the same core every- time. Only noticeable difference in core is a light line around it . ( Scrap on #1 due to operator #5 Nettie Harper throwing away good castings .) Click on floor 8 hrs . Dorine King called in sick about 7:00 p. m. RM. 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD operators that their reject count was excessive, the management contends that it had this report on August 2, 1950 . And at no time between August 2 and August 8, the date of the dis- charge, was such report called to the attention of Harper or was she given an opportunity to discuss the insinuations sought to be drawn by Respondent Company from such report. Under the statement "Remarks" Foreman Martin wrote the following: " Scraps on#3 amounted to one casting in each shot. It was the same core everytime. Only noticeable difference in core is a light line around it ." Such statement , if true, would tend to indicate that as to one core producing bottles there was a variation with the other seven bottles so producedT7 Foreman Martin testified he operated the machine when Harper was given "breaks" and that he also got bottles that were not what they should have been, but contended he had less bad production than did Harper. The women operators of the machines were not required to or expected to overhaul their machines , but were required to call it to the attention of the foreman, whose duty it was to keep the machines in working order . It may well be that Harper may have rejected some of the bottles that had the " light line around" them on the theory they should be rejected, while on the other hand, Martin may have been of the opinion that they could be passed on to the consumer without difficulty. The full facts of such a situation was not explored at the hearing. And Respondent Company and its counsel merely rely upon the statement of Martin written on the proffered exhibit "Scrap on #1 due to operator throwing away good castings "; after the word operator, in a handwriting other than that which drafted the statement is inserted "# 5 Nettie Harper" as the basis of finding Harper negligent or worse . On the basis of the foregoing and the record, the undersigned is of the opinion that Respondent Company's Exhibit No. 9 for identification does not support company contentions and was properly rejected . Contention (2) is without merit. It is so found. As to contention (3), which has to do with Foreman Martin ' s note of August 7, 1950, to M. L. Davis --Injection Molding Co quoted above: The note or report is ambiguous in the extreme and wholly inconclusive ; for instance, Martin says , " When I first took over shift yoke temp was too high causing quite a few rejects for the first hour, " contained no contention that the "yoke tempo" was too high because of negligent operation by Harper and does not in- dicate that Foreman Martin himself was aware or knew the cause of the rejects , if in fact any such rejects were made during this period . Note further states "Also while running it during the breaks I had little or no scrap." It would appear that Martin must have either had none at all or did have some scraps . If he did have such scraps he apparently did not know what was causing them. In any event the last sentence of the note, reading , he would "have to leave it up to you to decide what happened as I am at a loss to understand it," seemed to indicate that Martin was willing to say that there was something wrong with Harper ' s opera- tion but did not desire to state what it was, if he knew , or did not wish to go on record to the effect that Harper was at fault on this occasion , which proved to be her last shift as Respondent Company' s employee. Insofar as the record discloses other than to turn in Respondent Company' s Exhibit No. 34, the alleged report of the last night 's work of Harper , Foreman Martin did not discuss such report with management. As is found and set forth hereinabove , at the close of her shift on the morning of August 8, Harper went to Foreman Martin's desk and was told what her production for that shift was. A portion of such testimony would bear repeating here. Harper testified: Q. What did he say to you? A. As I was leaving to go home . I walked by the desk that was out in the shop and Bob Martin was figuring up the production on the machine and he stopped me and said, you did a good night's work last night , you made almost 7,000, and I said that was pretty good, wasn't it, considering the way the machine was running, and he said , yes, that was all right , so I went home. The foregoing testimony is undisputed and is credited by the undersigned. On the foregoing and the record , it is clear that no findings adverse to Harper can or may be made on the basis of Martin's August 7 note to M. L. Davis of Injection Molding Company Contention (3) is without merit. It is so found. From the foregoing and the record , it is clear that the three contentions offered by Re- spondent Company as its reasons or justification for the discharge of Harper on August 8, 1950, are, as is found above, wholly without merit ; that if Harper had in fact rejected an undue amount of bottles as contended in contention (2) she would have been discharged instanter on August 2; that as to contention (3) Foreman Martin's report of August 7, which was not dis- cussed with him and was not called to the attention of Harper , discloses on its face no facts t►The exhibit does not indicate that Harper had any connection with #3. Thus it cannot be determined whether Martin had reference to machine #1 or #3 when he stated: "Only noticeable difference in core is a light line around it_" INJECTION MOLDING COMPANY 713 that indicate that Harper was in any wise remiss in her work but indicates that Foreman Martin personally did not understand the operation of the plastic molding machine or that he attempted to draft a " report" which the Respondent Company might use as a justification in support of Harper 's discharge; and as to contention (1) that Harper was discharged "for mistabulating rejects on production without explanation after being given an opportunity to do so," is in no manner supported by the record . Harper's attention was not directed to either the rejected Company's Exhibit No. 9, or to Company's Exhibit No. 34, both discussed above. It is true that after she went home at the close of the 7 a. in. shift and had gone to bed, Archer had Mayo call her and tell her he wanted to see her. He did not tell Mayo nor did Mayo tell Harper the reason why he wanted to see her . T° In any event , according to Archer, he, upon advice of his attorney , decided to and did discharge Harper on or about 4 p. m., while she was still in bed , because of her failure to report up to that time. It is significant that he did not, at any time , seek to find out what reason, if any, Harper had for not foregoing her normal sleep that day and hastening to his office. Normally that is what an employer would have done for an employee of some 21 years between 1943 and 1950. On the basis of Company' s alleged defense to Harper' s discharge, one must conclude that Archer decided " lack of cooperative- ness," supported by his attorney' s approval , would suffice as a defense for the discharge and ruled against any further inquiries of Harper. T9 Upon the basis of the foregoing and the entire record , including Harper's union and con- certed activities on behalf of theUAW-ClOandLoral 132, the undersigned is wholly persuaded that Harper 's discharge was occasioned by her membership in and activities on behalf of UAW-CIO. 80 It is so found. It is further found that by said discharge of Nettle Harper on August 8 , 1950, the Respondent Company has discriminated in regard to the hire and tenure of employment of said Harper in violation of Section 8 (a) (1) and (3) of the Act. (j) Elsie Mary May May was first employed by Respondent Company on March 29, 1943, as a machine operator on injection molding machine . a Dorothy Rodgers , at all times material herein forelady in the bottle assembly department, was the first woman to be employed as an injection molding operator and May was the second. May continued in that position from 1943 down to the date of her discharge on August 22, 1950. During February 1950, May became affiliated with the UAW-CIO. During that same month, at an election and a meeting of such union , she was elected as stewardess for the production room of the Respondent' s plant and thereafter took part in the organizational activities of the UAW-QO. 78 Mayo, although in the hearing room much of the time , was not called as a witness. Since she did not dispute Harper's version of her message , Respondent Company cannot and in fact does not affirmatively contend that Harper knew why Archer wanted to see her during her rest period. Certainly she could not assume that it was in connection with the two "reports" discussed above, the existence of which could not have been known to her, when she was awakened by Mayo. It is so found. 'SIn Harper's case, as in some other ones , Archer and his counsel stress the fact that the Respondent Company, by its manager , Archer, invariably consulted its attorney, usually by telephone, before making the discharges alleged in the complaint. Both the Company and its counsel, in effect, contend that if such counsel approved the discharges in advance thereof, such approval amounts to a complete defense to an allegation of a discriminatory discharge. Such, however, is not the case. Unless the facts introduced at the hearing disclose a legal defense justifying such discharges under the Act, an attorney's opinion to the contrary is in no way binding upon the Examiner and the Board, and in effect would be an invasion of the province of the Examiner . The General Counsel moved that all testimony concerning advice by the attorney to the Company be stricken . Ruling was reserved on such motion and is hereby denied. The undersigned, however, has made no findings based solely upon advice by the said attorney to Respondent Company. 80 It has been found hereinabove , that following the strike Ora Evelyn Johnson, a former company employee , drove to the plant at shift change time, met Foreman Banken, and asked him if Nettie Harper was on duty . Banken replied that "Nettie isn't with us any more"; Johnson asked, "Did she quit?" Banken then said, "No, she belonged to the wrong union." Si The record indicates that W. K. Archer , present owner and manager of the Respondent Company, took the same over on or about July 1, 1946, and has at all times since that date been manager thereof. 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As set out hereinabove in section III, A, above, May was discharged by Archer on or about March 6, and, after the intervention of UAW-CIO officials, was reinstated on or about March 8. Archer called a meeting of all the employees, at which meeting he stated, utter alia, that Rinkenbaugh, an official of the UAW-CIO, had no part in May' s being returned to the job; and that he (Archer) made that decision on his own motion and in good will. It was during this meeting that Archer, as has been found hereinabove, proposed the formation of a company or independent union. Some 2 weeks after the March 8 meeting while at work, May was relieved from her job to talk to Angie Curtis, who was soliciting employees to sign IAM or AFL cards. In this connection , May testified: Q. Who spoke to you about that , if anyone did? A. Well, Angie Curtis spoke to me about it. Q. Under what circumstances? A. Well, I was relieved by my foreman to go to the table and talk to Angie Curtis, and I walked over and talked to her and sat down , and she asked me to sign the I . A.M. or the A.F. of L. And told me that the men in the tool room wanted the A.F. of L. in the plant, and that they would never join the C.I.O., and she believed that the A.F. of L. was the best for us , and told me that we didn' t have a union there , and I told her that we did have a union because I was steward and he had the C.I.O. May further testified: Q. Did you speak to any company representative or foreman about unions during this period of time, Mrs. May? A. I did, but one afternoon I was working with Bill Banken [ foreman] and he told me that he turned against me after I said the Union had gotten me back my job. Q. Do you remember when that happened? A. It was sometime after I had gone back to work in March. Q. Was this before the strike or after? A. Before the strike. May joined the February 17 strike called by the UAW-CIO, walked the picket line, and took part in kitchen duties. During the time she was on the picket line she had occasion to talk with Archer. And on one occasion did so when in company with Nettie Harper, which incident has been set forth in connection with Harper ' s discharge. Following the strike settlement of June 2, May returned to work with the other strikers on June 5. She participated in the election between the UAW-CIO and Respondent Union on June 30 at which time she acted as an observer for the UAW-CIO. Following the return to work after the strike, Foreman Martin, one of the foremen in the production department , discussed May's conduct with her. In this connection, she testified. Q. In connection with what conduct or incident did he have occasion to criticize you? A. Well, shortly after the strike we had gone back to work about --well, I don't remem- ber how long it was--I went outside tothe car to eat my lunch and get some air , and when I come back I had to ring the bell to get in. Q. What hour of the day was this? What shift were you on? A. 3 30 to 7:30 , (sic) on the afternoon shift [ The afternoon shift was from 3 or 3:30 to 11 or 11: 30 p. in.] Q. And your, what you call lunch would come at-- A. (Interrupting) 7:30. Q. I see. You say you rang the bell? Go ahead. A. And I was let in by Bob [Martin], and he asked me where I had been, and I told him out to the car to get some air , and Bob said , "You went down to union headquarters, did you?" And I said, "No," and he said, "Well, you stay away from down there," and shook his finger at me. ,p2 Q. (By Mr. Browne) And with that he what? A. Shook his finger at me 82 In this connection Martin testified that he let May in but denied shaking his finger at her. INJECTION MOLDING COMPANY 715 Q. (By Mr Sacks) And union headquarters was where , Mrs. May? A. It was the building next to the injection Molding Q. Did you have any further discussion with Foreman Martin about your conduct? A. Yes The next night at my lunch period , at 7:30 or 8 o'clock , I walked to the shipping room door and talked with Spike Ennis , an international man.' Q. You say an international man What union is he with , do you know? A. He is with the U.A.W.-C.LO. He was standing on the sidewalk on the outside and I was in the plant , right at the door , and I walked back to my machine to go to work, and this Bob Martin came over to my machine with a piece of paper and first asked me who I was talking to upfront , and I said a friend of mine, and he said , "Well, read this paper," and it was something about no union talk in the shop , and I believe that is all I can't remember what hour-- Q. (Interrupting) You say anything to Martin or didhe say anything further to you after he showed you the paper and you read it? A. After I read the paper , I said OK, that I wouldn't talk or do anything. May worked steadily from the time she returned to work on June 5, following the strike, except for a period of about 2 weeks , namely the first 2 weeks in August , when she had an injury to her toe requiring the attention of a doctor , who advised she must be off her feet for 10 or 12 days She reported these facts to Archer' s secretary , Miss Mayo , who advised her to get a doctor' s release when she was able to return to work , which she did She returned to work about August 15 at which time Everett Epling was the foreman and Clarence Price was an acting foreman, or extra foreman, on the shift on which May worked. The facts leading up to May's discharge may be better understood by quoting her testimony and Foreman Epliitg ' s than by a summary thereof. With reference to her conversation with Foreman Epling and Acting (or Extra) Foreman Price on her return to work on or about August 15 , May testified: Q. Did you have any conversation with either of these two men, Mrs. May, when you first went back to work after your toe injury9 A. Yes. I talked to both of the foremen. Q. On the day you got back or the day following or when? A. On the day that I went back to work Q. What did you talk about? A. My work. Q. What was said? A. Well, I was working on No. 1 machine, and the bottles were running very, very had, and I asked each foreman to do something about the machine to get out better production, and they neither one would do anything about it Q. Was that a request you made of them on one occasion or more than one occasion? A. No. Each day and several times a day I complained to each of them to help me out to do something about the machine Q. Did they make various adjustments in the machine? A. Oh, maybe one of them would once or twice during the day, but it didn't help Q. Did either of these two men, Epling or Price, ever give you instructions during that week on what production was to be passed or what production was not to be passed? A. Each foreman told me to pass everything , and when I was on my relief they would run the machine for me, and they passed exactly the same thing that I passed . They told me to pass all the bottles except the very worse ones. Q. When you use the expression " pass" what do you mean? Will you explain that for us9 A. To pass the bottles , they are good bottles, suppose to be, let them go through, and rejects are the bad bottles. Q. Did either of these two men, Price or Epling , give you any contrary instructions during that week? On objection of Respondent Company ' s counsel , question was withdrawn Q. (By Mr. Sacks) What instructions were you given TRIAL EXAMINER WARD: She may answer that . You may answer . Overruled. THE WITNESS: What do you want me to answer? MR SACKS: Would you read the question? 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thereupon the following question was read by the reporter: "Did either of these two men, Price or Epling , give you any contrary instructions during that week?" A. Yes, each instructed me to pass all the bottles Q. (By Mr Sacks) What would they say to you9 A. They'd say, "Elsie . after next month there won't be any trouble with the machine," or they would say, when I asked them "Shall I go ahead and pass these , they are bad," and they'd say, yes--shall I say what he said? Q. Yes A. The old man doesn't know what he wants from one day to the next , pass them, "So I pass them." TRIAL EXAMINER WARD. Let's have it quiet. Q. (By Mr Sacks ) These two men whom you said were foremen, Price and Epling, how many machines did they supervise? A. Six machines TRIAL EXAMINER : These men you referred to are foremen? MR SACKS: Yes, sir. Q. (By Mr . Sacks) If either of these two foremen , Price or Epling , criticized your production at any time during this week? A. No, they didn't Q. Did they compliment your production at any time during this week? A. Yes. They had the machines running fast, and I was high most every night or most every day that week. Q. Was this something you were told or is it something you are telling us? A. No, they told me. Each one of them said , "Well, you did fine yesterday on your production," but the bottles were all bad. Q. Did they say that to you? A. No, they said "Your production was good, " I added that. Q. As an operator who worked for injection Molding for a period of some 7 years what was your opinion of the product which was coming out of the machine that week? A. Well, my opinion was that the bottles were not perfect , they were cloudy and they were well lined in some of the bottles , and inside of the bottles would be sort of like the eggshell, the white of an eggshell , inside the eggshell, sort of a bubble affair . My opinion was they weren't as good as they should have been. 0 Q. (By Mr . Sacks) Did you speak to Mr . Archer at any time concerning your produc- tion following your return to the plant after your toe injury? A. Yes. I talked to Mr. Archer. Q. Will you state whether or not you ever discussed the quality of the production with him? A. Yes. On Monday, I believe, I had worked a week, and I had passed all the bad bottles, and it was the following Monday I was eating my lunch at noontime , and Dorothy Rodgers walked by the desk , then later Mr. Archer would walk by the desk where I was sitting at, .then Mr Archer walked back by and took a paper off the bulletin board with about four or five bottles on it , and he walked over to me and said, " Elsie, did you see these bottles?" Yes, I did , don't they look terrible? And he said , "You know we can't pass this kind of work," and I said , "Yes," but I was instructed to pass all the bottles last week, and he said , " I don't know anything about it ," and he said , " From now on you watch these," and I said . "Yes, sir ," and he walked away. Q. Did you have any conversation with any of your foremen following this talk with Mr. Archer? A. Yes, I went back to my machine and I told Everett Eplimg that I had talked to Mr. Archer, and again Everett said , " Well, don't you worry about it, Elsie, go ahead and do your best." Q. Do you know whether this was on Monday or not? A. Yes, this was on Monday. I believe. INJECTION MOLDING COMPANY 717 Q. And this was the start of the second week of your work, is that correct? A. Yes, it was. Q. Did you report for work the following morning? A. Yes, I did . I relieved my operator and we were running gold bottles. Q. What product had been running prior to the change to gold bottles? A. I can't remember whether it was pink or blue. Q. But the change from some other color to gold took place sometime Monday night, so that when you got there Tuesday morning they were running a different color , is that it? A. That is right Q. Will you tell us what happened fromthetime you started to work Tuesday morning? A. Tuesday morning I started running the machine and I noticed the bottles were gold , that they had a peculiar coloring in the gold , they didn't look good , and I had been working nearly half an hour or so and a bottle came out that looked bad. Well, when we had bad bottles, we threw them in the barrell, so I threw the bad bottles in the barrell. Q. You say it looked bad Do you recall in what respect it looked bad to you? A. Yes. It had a sort of thick coating of gold plastic. It had run down the side of the bottle, and the next was a little crooked , which happened all the time, half of the bottles go through crooked anyway, but it was too thick a coating of gold coming down one side, and it didn't look right so I threw it in the barrell. Q. Did you continue operating your machine? A. Yes, I did. And Clarence Price walked up to my machine and was standing there watching me work MR BROWNE. What, stand there what? Thereupon the following answer was read by the reporter. "Watching me work." Q. (By Mr. Sacks) Go on A. And he stood there about 5 minutes , and another bottle came out of the machine that looked exactly like the one I had thrown in the barrell, and I handed it to Clarence Price, and I said , "Clarence, look at this , I had one awhile ago," so he looked at it, and watched me work for another two or three shots Q. What is shot? A. That is when the machine closes and we get another set of plastic bottles, then it goes through the operation , and we get another set of bottles. Q. What were the number of in each shot you were running then? A. Oh, golly, I think it was either six cavity or eight . k think it was the six Q. So that one shot would be either six bottles come out or eight, is that correct? A. Or eight , yes. It has been a long time. Q. And you say Mr. Price stood there and watched you work for awhile? A. Yes. Q. Did you show this bottle to Mr Price ? Did he make any comment? A. I told him, I said , " Ihadabottle just like that one , Clarence," and so after he stood there and watched me work for 3 or 4 more shots, he took the bottle I had handed to him and he walked away, and was gone , oh quite a while, 5 or 10 minutes , and I was working and directly I noticed , well, without my other rejects, I noticed another bottle that didn't look too good , so I called for Everett Epling to come. Q. You say you noticed another bottle that didn't look too good? In what respects didn't it look too good? A. It looked similar to the other 2 bottles I had thrown away or given to Price and thrown in the scrap barrell. Q. I see. A. Everett Epling didn' t answer my call, but Clarence Price did come and when he walked up to my machine, I said, "Clarence, here is another bottle I had," and he said , "M'M'M, so you got another one," and I said , "Yes, here it is," so Everett followed him right up and the two stood there a few seconds and they walked away, and they were gone quite a while, and I kept working and having good bottles and re- jects , which happens constantly , and directly Everett [Epling] came up to my machine and says , "You are wanted in the office." 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. Yes? Go on. A. So I walked away from the machine and I passed the time clock going into Mr. Archer's office, I noticed my time card was gone. Q. Was your time card normally left in the rack? A. It was always there. Q. Did you go to the office? A. I went directly to the office. Q. Who was there? A. Mr. Archer. Q. Did you have a conversation? A. Yes. Q. Tell us about it. What did he say to you and what did you say to him? A. He said, "Elsie, here is a bottle that you left in the machine," and I said, "Why, I did not leave a bottle in the machine, Mr. Archer," and he said, "Well, you evidently did, this is it," and I said, "That I didn't close up on a bottle, Mr. Archer." Q. Will you tell us what you mean by the expression "close up on a bottle"? A. Well, if you close up on a bottle or bottles you would close the die and the bottle would be in the machine. Q. Doesn't the expression "close up on a bottle" mean that after one shot, if you don't remove each of the 6 bottles from the cavities that the machine will refill the cavity again and there will be too much of the plastic in the die cavity and you will in- jure the die cavity? A. That is right. Q. Is that right, is that what "close up" means? A. That is what close up means. Q. You said you said to Mr Archer you didn't close up on the die. Was there any further talk? A. Well, he opened his drawer and pulled out a bottle, and he said, "Well, some one has closed up on this bottle, and its going to cost the Company so and so much money, and we are going to have to repair the die that you were working on, and it will cost us so much money," and I insisted that I had not closed up on the die and I would say so, because what would be any need of denying it. I never closed up on a bottle, and if I had I would have said right then that I did but I didn't, and I told him so. Thereafter Archer said something to the effect that May had passed a lot of bad work the last week and that he was just going to let her go home and let someone else run the machine, whereupon May left his office and when she returned to the production depart- ment she met one Mike Grebewiec, whom the record shows to have been an independent contractor in charge of the toolroom. In this connection, May testified: Q. Did you speak to him? Who spoke to whom first? Did you speak to Mike or did Mike speak to you? A. Well, we met and who spoke first, I don't know. Mike said, "Are you going to your machine now?" and I said, "No, I was fired," and he just couldn' t believe it. Motion made to strike the phrase " and he just couldn't believe it," granted. Q. (By Mr. Sacks) What did Mike say to you, Mrs. May? A. He said, "I just can't believe it," and I said , "Well, I was." Q. Did you say anything else to him or he to you? A. I explained to him that I had been into the office and they accused me of closing up on a bottle, and I told him would there be any need for me to deny it if I had. I had worked there 7 years. And in the meantime Everett Epling and Clarence Price walked up pretty close to us , and I kept denying that I hadn't closed up on the bottle , and they just shrugged their shoulders and stood there. Q. Did they make any response to you? A. No, I can't say that they did. Q. Did any other official of the Company come by at that time? A. Mr. Archer walked by while I was talking to the men , and I- Q. (Interrupting) Did you say anything to him? A. I said to Mike, "They are just framing me , that is all." Under date December 6, 1950, the Respondent Company wrote May as follows: INJECTION MOLDING COMPANY 719 December 6, 1950 Mrs. Elsie M. May 1449 W. 27th St. Independence, Mo. Dear Mrs. May: This - will acknowledge receipt of your letter dated August 26, 1950, in which you request a service letter. On July 1, 1946, the present Company, The Injection Molding Company, a corpora- tion, took over The Injection Molding Company, which had theretofore been a partner- ship. Since July 1, 1946, you were employed by the Injection Molding Company, a cor- poration, in the capacity of a molding machine operator of an injection molding machine. Your duties consisted of opening and closing a gate on the machine, removing castings from the dies, and inspecting such castings for defects or irregularities . Some of the castings produced by the machine on which you worked consisted of castings for head- light lenses, pen parts , bottles, cookie cutters, juicer parts, and other items. Your work continued with this Company until August 22 , 1950. At that time your employment with this Company was severed, because in our opinion your work had fallen below the quality and standard of performance which were required for this job. We wish to add that during the period of time when you were in our employ, we found you to be an industrious , intelligent, honest, and willing worker . (Emphasis supplied.) With kindest personal regards and best wishes, we are Very truly yours, INJECTION MOLDING COMPANY /s/ W. K. Archer W. K. Archer, President WKA:hm Registered Mail Return Receipt Requested Clarence Price, the part-time or acting foreman referred to above , was not present at the hearing herein. The record indicates that he was then in California . All statements attributed to him as testified to by May are not disputed in the record . Foreman Epling was present during the hearing, and testified at some length with reference to May . Neither Epling nor any other' witness disputed May's testimony of events covering the weeks pre- ceding her discharge. On direct examination, Epling, in part, testified: Q Elsie May testified that about the day before her discharge when certain work was being passed that wasn't up to standard , you told her, "Don't worry about it, do your best." Could you have made that statement to her? A. Under those circumstances , no, sir. Q. On Tuesday, did you have occasion--this is Tuesday on the day Elsie May was discharged- -to observe her in her work and the type of work she did? A. Yes, sir. Q. Will you tell me about that , please? A. Well, a foreman inspects the work of the different machines operated from time to time, and I made out a report on this, so I remember the times. At 9:15, I don't recall whether I was called to her machine or whether I walked over there. Anyway. I saw this bottle that had a double neck on it, what we call a double neck. The only way that bottle can be made is to close the machine or die together with a completed casting in it and for your plunger to come down and give you another, what we call shot or cycle, to re-cycle over and put a new top, a second top , on your bottle. When I saw that I asked her if she knew what it was, and she said no. I told her then that she had double shotted the die. I immediately went around to the side of the machine where her reject box was and began looking through the box and while I was down there 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD looking through the box she threw another reject in the box that was exactly like the one she had shown me the first time , that is, it was a double shot, had a second neck on it. Clarence Price was there at the time . He and I conferred , and after the second one Clarence says , " Well, we can't stand for this," and so I took the machine and ran it for approximately 15 or 20 minutes , and after the second bottle , I began getting one bottle every shot with a crooked neck . I was afraid that the die had been damaged in some way, and the continued running of it would make a serious rework job necessary, so I shut it down, and Clarence Price--it is a correction , I, myself, went to the tool and die room and got Mike Grebewiec , who was in charge and asked him to come out and look at it and see if he could find any damage Mike came out and checked the die and it had been down about thirty minutes , and I started it back up and we still got this one bottle with a crooked neck every time , and we found that by shaking the bottle while the neck was warm we could pass the bottle . I might say here we had a run on Jergen' s bottles , on gold bottles , and they wanted to run that job out. We had a thick and thin walled die and this was the only die we had so we didn 't want to shut it down, and we ran that die . I completed my run, and in the meantime I had to remove an opera- tor from another machine, a qualified bottle operator , and Dorothy Rodgers sent a girl out from the bottle room to take over , Maxine Ennis took number 1, take her down, and Elsie, I believe, if I am not mistaken, was taken into the office by Clarence Price. I could be wrong on that . (Emphasis supplied.) 0 QQ (Mr. Sacks , on voir dire) Can you testify certainly, Mr. Epling, that this is the part of the casting which came out of Elsie May's machine , this piece I have in my hand? (After objections , and discussions , the witness was permitted to answer and did so as follows:) A. I'll answer this way, if I may, there has never been a gold bottle on a thick or a thin die closed up on that plant . If there has been I would have known about it, but you're asking me to say the impossible here . I can't say here . I mean this bottle has not been in my sight all the time. How could I say. Q. (By Mr. Browne) And you say that there were 2 casts that had been closed up on during that period of time that you were there --in Elsie May's machine? A. That is, what I saw , yes, sir. Q. From your experience was that the fault of the operator or the fault of your machine? A. Well, sir, you take an operator that has been there 9 or 10 years , they have been trained up, they know that anything left in the die is subject to ruin that die. It would be very expensive to the Company . Certainly I would say it is the operator 's fault 100 percent. Q. I see. Was that die damaged as the result of the closing up? A. Yes , sir. Grebewiec--I didn't quite complete my story--Mike came out and checked the die, told me that the core had been bent , after-- (Interruptions and objections overruled) Q. (By Mr. Browne) Go ahead, you may continue your conversation. A. He said the core was bent , the die had been damaged up absolutely , that that was visible, and that was the reason we were getting that crooked neck. And because we did want to finish this gold run we ran the die in that condition. Q. And shaped the neck of the bottles? A. Shaped the neck as we ran them, yes , sir. (Emphasis supplied.) Epling was asked on cross-examination as to whether the No. 1 machine operated by May had not produced a similar sort of imperfect bottles by the previous operator (on the 11 p. m. to 7 a. m. shift). He testified: Q. Is there any possible way, then, Mr . Epling, that you can tell us that bottles of a similar sort were not run by the previous operator A. By the previous operator, I would have no jurisdiction or ruling over her. Q. And inasmuch as you didn't check any of the rejects you didn't know whether there were similar bottles? A. I wouldn't check the rejects on another shift, no, sir. INJECTION MOLDING COMPANY 721 Q. Wasn' t it a matter of fact, Mr . Epling, you were having considerable difficulty with No . 1 machine about this time? A. Not considerable, no, sir. Q. You were having some? A. Probably. u The record discloses without dispute that following May's discharge, her machine was continued in operation until the "Jergens Gold Bottles " were completed and that the only difficulty had was that it was necessary to straighten the bottle necks by hand since they became crooked as the result of a bent core. The credible evidence will not support a finding that May was in any way responsible for the alleged faulty operation of her molding machine . She had repeatedly called the two foremen's attention to the fact that it was not functioning properly , only to be told to con- tinue the operation and "pass" the bottles regardless . It is so found. May had been employed in the plant since March 29 , 1943. She worked for Respondent Company' s predecessor until Archer took over the plant on or about July 1, 1946, and for the Company until her discharge on August 22, 1950 . The record contains no evidence that her work had ever been criticized prior to August 21 and 22, 1950 . The Company' s service letter to May, states in part. We wish to add that during the period of time you were in our employ , we found you to be an industrious , intelligent , honest, and willing worker. (Emphasis supplied.) From his observation of May at the hearing, the undersigned is of the opinion that she was honest and intelligent On the basis of the foregoing and the entire record, the undersigned is of the opinion that May's activity as a UAW-CIO member , as a stewardess for Local 132, as a striker who persisted as such until the end of the strike , together with Respondent Company's deter- mination to keep the UAW-CIO out of its plant as a labor organization, caused said Re- spondent Company to discharge her on August 22, 1950; and that the alleged improper operation of her molding machine was not the reason but a pretext for such discharge. It is so found. It is further found that by such discharge on the date aforesaid, the Respondent Company has discriminated in regard to the hire and tenure of employment of said Elsie May in violation of Section 8 (a) (1) and (3) of the Act. (k) Annabell Woolen (1) Events leading up to discharge Woolen was employed on February 7. 1950, and assigned to the bottle assembly room. She joined the UAW-CIO and wore a button designating that union. As has been set forth hereinabove, Woolen was discharged March 23, 1950, along with Lillian Nagle, another machine operator . She joined the UAW-CIO strike and following the settlement of such strike on June 2, she returned to work on June 5, 1950. As was specially provided in the strike-settlement agreement her seniority was restored and one-half of the back pay that she would have earned from March 23 to April 17, the start of the strike, was provided for. Sometime between July 4 and July 25, Woolen attended the meeting of the AFL Novelty Workers, which took place on a Sunday afternoon at an AFL union hall. According to Woolen there were about 15 present , of whom 10 were formerly UAW-CIO strikers and a number of AFL members including the president of Local #161, Elsie Ireland, vice president, Angie Curtis, secretary -treasurer , Helgesen, international representative of Local #161, and one Francis Collins. The meeting lasted an hour or longer . Helgesen did most of the talking, as it should be noted from the uncontradicted and credited testimony of May, quoted above, that following May's return to work on August 15, after being under a doctor's care, until the close of that week on August 19, May's machine was out of order and did not produce passable bottles, notwithstanding which Epling and Price insisted that she pass all "except the very worse ones," which she did. The final result was that on Monday, August 21, 1950, Archer contacted her, displayed some of the faulty bottles of the preceding week's produc- tion, and made the statements set forth above. On the following day, August 22, May, as related above, was discharged. 722 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD according to Woolen . He referred to the fact thai the AFL had won the election and gave the figures of those voting for the two organizations . Helgesen stated that the "Labor Board was trying to get the fee (initiation) up from ten dollars to two, that they were not going to do it." He informed the group that they could sign application cards for membership in the AFL but they would have to be investigated , and would be notified whether or not they would be accepted in the AFL union. Application-for-membership cards were passed out and Woolen signed one , and delivered it to Elsie Ireland . This was the first occasion on which Woolen was asked to apply for membership in the AFL local About the middle of Augusi. Helgesen called on Woolen at the plant during working hours and while she was at work. In this connection , she testified: Q. Tell us what he said to you and what you said to him. A. He asked if I was Annabell Woolen, and I said, "Yes, " and he said , "Have you joined our union yet?" And I said , " Well, I have signed a card but I have never been notified that I was accepted," and he says , "Oh, well, you will be," and he says, "The fee is going to be ten dollars , the Labor Board can't get it down to two," and I said, "Man, I'll never pay you ten dollars, when the girl that was hired the same night that I was got in for two dollars , and you want me to come in for ten , because she scabbed and come through the picket line." And he says, "Well, you'll pay me ten dollars," and he says , "if you don't, you won't be here 30 days from now." • Q, Were you ever thereafter notified that your application for admission to mem- bership was favorably acted on? A. Not in words that I was accepted into their union, but I was told that I had to pay that ten dollars. Q. Did you speak to any of the foremen or supervisors after Mr. Helgesen spoke to you? A. Yes, I did. I called Dorothy over because I didn't like the tone of the voice that the man used to me. Q. Who is Dorothy? A. Dorothy Rodgers. Q. (By Mr . Sacks) Did you speak to Dorothy? A. Yes, I did. Q. What did you say to her? A. I said, "Dorothy, what is the deal on this union? " I said, " That Helgesen just come and talked to me about it." And she said , "Well, I don't know," and she says, "I don't know the man until he introduced himself to me just now." Shortly thereafter , one of the girls in the plant ftifoitned Woolen that Rodgers was calling her and as she turned , Rodgers motioned for her . Woolen went out into the lunchroom and Rodgers informed her that Archer wished to talk to her . Woolen testified: Q. Did you talk to Mr. Archer that day? A. He was out in the lunch room. Q. Did you speak to him and did he speak to you? A. Yes. Q Was anyone else present then? A. Just Dorothy and Mr. Archer and myself. Q. What did he say to you and what did you say to him? A. Well, to start off with, Dorothy says, "And I told Mr. Archer about Mr. Helgesen, and what you had asked me about ; and Mr. Archer says," "yes, what did he say to you? " And I went ahead and told him what Mr . Helgesen had said , and he said , "well. I don't know whether he had any right to talk to you or not but I guess he did ," and I told Mr. Archer at that time, I said, " well, I' ll never pay the ten dollars when the other girls got in for two," and I asked Mr. Archer , I say , "do you think you would pay the men ten dollars and yoo had no faith in his union and has always been C ,LO.?" And he looked down at the floor and looked back up at me and he said, "Well , no, but you'll have to." INJECTION MOLDING COMPANY 723 Q. Did he say anything further? A. He went on to say that he had a pretty bad time there in the spring, that he was willing to forget it, and for me not to worry about my job, if he heard anything he would let me know, and I thanked him, and went back to work." Thereafter Lois Saxton, referred to in the record as an AFL steward, accosted Woolen as the latter was returning from her lunch. Woolen testified: Q. (By Mr . Sacks) Did you and Lois speak to each other? A. Yes. She had a piece of paper there, typewritten paper , and she says, "And do you want to sign this?" and I said , "Well, what is it?" and she says, " Well, here, read it," and I read the paper, and it was something to do with my taking my initiation fee out for the A.F.L. union, it had all the union words on there, you know, and the fee, but no price was on there. Q. You say there was no amount? A. No amount was on there, how much was I going to sign for, but yet I was to sign this paper, and I said , "Well, Lois, there is no amount here," and she said, "Well, it is ten dollars ," and I said , " I'll give you two, but I still won't pay the ten," and she says, "You know, the contract was signed yesterday," and I says, "No. I didn't know it- 6, 85 About a week before September 25, 1950, Woolen was called to Archer's office by Fore- lady Rodgers. When she arrived at Archer's office she found Chris Henkel, president of Local 161, AFL, and thus Archer , Henkel, Rodgers , and Woolen were present on this occa- sion. Archer stated that he had received a letter that he would like for Woolen to read and Woolen read it, "and it was a letter from this union , asking Mr. Archer to discharge me, but didn't give the reason . It said failure to join their union, but it did not say it was because they wanted ten dollars. No amount was mentioned there ." The letter referred to was marked General Counsel's Exhibit No. 19, for identification . The letter so referred to reads as follows: My dear Mr . Archer: We herewith request the discharge of your employee , Mrs. Anne Woolen, not later than Tuesday , September 26, 1950. Membership in our organization has been made available to her on the same terms and conditions applicable to other members, and further , she has failed to tender periodic dues and initiation fees uniformly required as a condition of acquiring membership in our organization. For the above-stated reasons we demand her discharge , with all good wishes, we remain, Very truly yours, A. C. Plastic and Novelty Workers Union, No. 161 (Signed) Harry S. Helgesen Sec. and Bus. Mgr. Woolen further testified: Q. (By Mr. Sacks) Did Mr . Archer show you anything else besides the letter I've just read to you? A. Yes, sir. Q What else did he show you? A. He told me he had a typewritten , he had typed up something that he would like for me to sign that would keep him in the clear. "Archer no doubt had reference to matters connected with Woolen's discharge on March 23. Other than the fact that the UAW-CIO had filed a charge, hereinbefore referred to, alleging the discharge of Woolen and Bledsoe on March 23 to have been discriminatory, the record is silent as to the facts connected with such discharges. es The record indicates that the contract was signed under date of August 15, 1950, and would thus indicate that Helgesen had demanded the 10-dollar initiation fee prior to the exe- cution of the contract. 724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. Do you remember what it said? A. No, I couldn't tell you word for word. In fact , I doubt if I could even remember part of it for you. Q. What did you do, did you sign Mr. Archer' s letter? A. I told him no, I didn't care to sign it. Q. Did you say anything more to him, was there any further conversation? A. He told me to think it over for a week and let him know. Q. And let him know? A. Let them know. Q. Did you speak to any of the others in the room at this time? I believe you said that Dorothy Rodgers was there and also Chris Henkel. A. Yes. Q. Tell us what happened. A. Mr. Henkel said, " All new employees had to pay this ten dollars ," and I said, "Man, are you telling me I am a new employee when I was hired February 7? " "Oh, no, no," he says, " I don't mean that," he says, "our by-laws are made and our charter is closed," and he says, "we intend to abide by them and you 'll have to pay the ten dollars," and I says , "Why do you want me to pay the ten dollars when Alta got in for two dollars? Q. Who is Alta? A. Alta McGovern. She is one of the employees , one of the girls , she is a girl that was hired the same night I was . I said , "To me you are just discriminating against me by that," and he says, "No, I'd be a very poor sport to have gone out on your picket line and asked you to join my union," and I said , " Not any more of a poor sport than you was to slip the union in the back door like you did and expect me to pay ten dollars and let her get in for two." Q. Anything further said by Mr. Henkel or by you? A. He told me that is the way it was and that is the way it was going to be. Q. Did Mr. Archer say anything further? A. Yes, Mr. Archer told me to think it over for a week and let them know. During this time Woolen indicated to Archer that she had heard that the contract had been signed and she would like to see it. 8.6 Archer thereupon called Attorney Browne and after he hung up the receiver he stated that as far as he was concerned he didn't care if Woolen saw the contract , that he did not have a copy there nor did Henkel , but the latter said they could get a copy of the contract to show Woolen. On the following day Henkel did show up at the plant and had a copy of the contract which had been signed by the parties and discussed it with Woolen . During the conversation, with reference to the contract, Henkel in part said , 'Well, there it is, I haven't got any more time. You will have to pay the ten dollars , no matter how you feel about it , you'll never get in for two, I says , ' Well, I'll never get in for ten dollars,' and he says , ' Well, its nice knowing you, and goodbye,' and I says , ' The same to you.' I have talked to him since but not at the plant." On September 25, 1950, Woolen was at her machine, Elsie Ireland and Dorothy Rodgers appeared in the doorway and the latter called Woolen to her machine, whereupon Ireland stated , "' Have you decided to join our union? ' and I says , ' I'll give you two dollars ,' and she says , 'No, I'm sorry,' and she says , 'It is ten,' and I says , 'I won't give you the ten, I will give you the two,' and she says , 'You come and go with me,' this is Elsie Ireland doing the talking, ' and I says, 'wait just a minute until I wash my hands ,' so I went back to wash my hands and when I came back she was gone but Dorothy (Rodgers) was standing there." Rodgers escorted her first to Archer' s office and then to Office Manager Davis' office. Upon arrival they found Ireland and Archer present . Woolen testified: Q. Did Mr. Archer sp.ah to you when you saw him? A. Yes, He said , " Annabell, have you decided to join the A.F.L. union?" and I told him again I'd give them two dollars, butI said , "I won't pay the ten because they are dis- criminating against me," and he says, "Well, I' ll have to discharge you," and asked him then would he give me a letter of recommendation, and he said, " Why, yes," but he says, "I'm awful busy right now . Mr. Davis is out of town, and I've got his work to do, too," and he says , "It will be two or three days," and I says , "Well. I'll look for it in a week or two," and he says, "Well, it will be before then." 88 This statement was made at the meeting at which Henkel , Rodgers, Archer , and Woolen were present. DECISIONS OF NATIONAL LABOR RELATIONS BOARD 725 Woolen testified that she never did receive the recommendation. Woolen further testified: Q. And you received your final pay check then? A. I went in then and Miss Mayo made out my final pay check. On November 30, 1950, Woolen was present at an unemployment compensation hearing in which claimant Nettie Harper was involved. Also present were claimant Elsie May and Re- spondent Company's counsel, Harry Browne. In this connection, Woolen testified: Q. Did you speak to Mr. Browne on that occasion? A. Yes. Q. Under what circumstances? A. Well, after they finished with Nettie's hearing, he asked Elsie May and Nettie and myself for a cup of coffee, so we went down to a little cafe, just down on the corner from the Unemployment Compensation, and I had coffee, and- - Q. (Interrupting) Let me interrupt, and ask you, do you know the exact date of Nettie Harper's unemployment compensation hearing? A It was the very last day of November, that would be November 30, the 30th day of November 1950. Q. You say he invited you for some coffee. Then what happened? A. While we were there talking, he asked me how I like my job out at Injection, and I told him I loved it, the work was interesting, and he says, "would you go back there? " and I said, "Yes, if Ihadachance I would go back." And he said, "Well, you come around and we'll talk it over, you come to my office and we will talk it over," so we went on talking, first one thing and then another, and I got to thinking after I got home, well, I'll go in and see him. Q. Wait a minute. Did he say anything further to you at that time excepting come up and talk to him about it that you recall at this time? A. Not that I recall- Q. Did you visit his office after thedayof Nettie Harper's unemployment compensation hearing? A. Yes, sir, I went up the next morning. Q. (By Mr. Sacks) Do you recall at what time of day you visited Mr. Browne's office? A. It was in the morning, before noon. I'd say around--I don't guess we exactly know the exact time, but it was before noon and It was before 11. It was in the morning. Q. Were you alone when you visited Mr. Browne? A. No, sir. Q. Who was with you' A. Emma Bandy. Q. Did you speak to Mr. Browne at his office? A. Yes, sir. Q. About how long did you speak to him? A. Oh-- Q. (Interrupting) How long were you in there? A. Oh, all the way from 30 to 45 minutes, I'd say. Q. I'll ask you to state as nearly as you can recollect what was said by you and Mr. Browne in his office on that occasion. A. ... then Mr. Browne came and we went on into his office with him, and I started to introduce Emma to him, which he had already met her. He said he had already met Emma, and Emma said she didn't think so, so I don't really know. So I told Mr. Browne, I said, "Well, I come up to see you about getting my job back", and he said, "Well, fine." On the conversation as it went along he told me that I would have to drop my labor board charge and wipe the slate clean because by him talking to Bill, and I didn't know who Bill was, and he said Mr. Archer, Bill Archer, why, he would make a compromise there, and he would talk to Bill and get my job back, and I asked him then. I said, "Well, what could the union do about it?" And he says, "Well, they could protest him taking me back, but Bill could still keep me and he would take the union to arbitration," but he says, "there is no need of me talking to Bill unless you drop your labor charge and wipe the slate clean," and he gave me his card, and he says, "You think it over and give me a ring." Q. Did he say anything, do you recall, Mrs. Woolen, about your charges, what he thought about the charges? 283230 0 - 54 - 47 726 INJECTION MOLDING COMPANY A. Yes. He told me he hadbeenwiththe Labor Board for 11 years and that he had quite a bit of experience in this line , and I didn't have a leg to stand on. I didn't have a charge anyway, and I wouldn't have a leg to stand on. Q. Do you recall anything else that was said about that aspect of it? A. It was about at that point when Emma brought in about how she have called Dorothy Rodgers and couldn't get her job back, there wasn't no openings out there, and she says, "How can you get her a job back when there is no openings for me? " Q. Who said that? A. Emma . She was talking to Mr. Browne. And he said . " Well, they'd have to make an opening for Ann," he said. Q. Do you recall anything else that was said either by you or Emma or Mr . Browne on that occasion? Was there any discussion on the initiation fee? A. Oh, yes. Q. What was said about that? A. He told me I'd have to pay the ten dollars to the union, and I said , "Well, my gosh, man, that is what I got fired over because they discriminated against me and was going to charge me ten dollars and wouldn't accept mytwo dollars ," and he said , " Well, you think it over, he says, "you can't get any more going to that Labor Board than you can get by dropping your charges" he said the Labor Board could (not) get my job back and my back pay but he says he could get that for me. If I dropped them I could still get my job back. Q. Was there anything further said at this meeting that you recall? A. I just don't remember anything else of that conversation. Q Did you ever attempt to contact Mr . Browne after that? A. Yes, sir, I did, but I never did him . I called on him several times, and he was out or he was busy. I never got to see him. She always told me he was out, the woman on the other end of the phone On cross-examination, Woolen admitted in response to a question asked by Attorney Browne, that while she was in his office on that occasion she did not tender the 10-doljar initiation fee demanded by the Union nor did she offer Browne 10 dollars for the initiation fee. On cross- examination Woolen testified in part, as follows: Q. (By Mr. Browne) Did I say anything about that if you were reinstated that would be in the nature of a compromise of the charges which had been filed? A. Yes, you said that would be the compromise, for me to drop my charges and wipe the slate clean, and that would be the compromise for you to get my job back. I know I am not pronouncing the word right, but you know what I mean. Claimant Emma Bandy was present with Woolen at Attorney Brown' s office on December 1 and Woolen testified that while at times Bandy became somewhat confused from the cross- examination of Attorney Browne, her testimony was insubstantial accord with that of Bandy's. Following is an example of Bandy's confusion under cross-examination: Q. (By Mr. Browne) Who have you talked to about the testimony you are giving in this proceeding? A. I don't understand the question. Q. Who have you talked to about this testimony you are now giving, about what testi- mony you were going to present? Did you talk to anyone about this case before you took the witness stand? A. I don't get what he means. Q. How can I make it plainer? Did you talk to anyone at all about this case and the testimony you are giving in this proceeding before you took the witness stand this morning? MR SACKS: Sir-- MR BROWNE: Just a minute. TRIAL EXAMINER WARD: Just a moment. A. I don't know what he is trying-- I don't know what-- Q. (By Trial Examiner Ward) Do you understand the question? A. No, I don't. Q. Did you discuss your testimony with anybody? A. Well, yes, I suppose I did. I don't know--I just don't understand you, Mr. Browne. MR BROWNE: All right. Q. (By Mr. Browne) You never discussed it with Annabell Woolen A. Do you mean this morning? Q. No, at anytime. INJECTION MOLDING COMPANY 727 A. Well, sure. Q. You discussed it with Annabell Woolen, Annabell Woolen? A. There was other things we discussed , too, about being up there. Q. I mean about the testimony you are giving now, about the testimony you are to give. Did you discuss it with any one else other than Annabell Woolen? A. I don't understand what you are trying to drive at. Q. Well, just answer the question . Can you answer it, yes or no. A. Yes, I had discussed it with-- Q. (Interrupting) With whom? A. My lawyer. Q. Who? A. Mr. Sacks and Mr . Hoffman (General Counsel representatives). Q Who else? A. Annabell, with Annabell. Q. Anyone else? A. Well, 4 suppose some of the girls . We have talked. Q. Now, I want you to explain this to me, if you can; how could Annabell Woolen had been invited to come up to my office to talk to me at the unemployment compensation hearing when the unemployment compensation hearing didn 't take place until two months after? Would yont explain that? A. It wasn't her hearing. Q. It wasn't? A It was one of the girls--She had been down there and you was the lawyer for their case or for the Company against them , and she was there, and you took the girls to coffee and pie. Q. Yes. A. In the restaurant. Q. Yes. A. And that is when-- Q. (Interrupting) Whose case was it? A. I don't just remember which one it was. Browne's version of the events of December 1 when Woolen and Bandy were at his office conflicts with that of Woolen and Bandy in that Browne contends that he at no time offered to get Woolen her job back with Respondent Company unless he could do so as a result of a compromise worked out between himself and the National Labor Relations Board, and the undersigned is of the opinion that Browne did in some part of his conversation with the two women indicate that he would have to take the matter up with the Labor Board . From all the circumstances from the testimony of the parties there present , the undersigned is of the opinion that Woolen sincerely understood that before she would get her job back it would be necessary for her to withdraw the unfair labor practice charges which she had filed against Respondent Company and pay the Respondent Union the 10-dollar initiatidn fee. Insofar as the record discloses , Attorney Browne at no time tdbk up the matter of a proposed compromise in Woolen ' s case with the General Counsel's representatives or with the Regional Director for the Seventeenth Region. The record discloses that under date of July 18, 1950, the National Labor Relations Board issued its Decision and Certification of Representatives , wherein and whereby it certified the Respondent Union as the exclusive representative of all the Respondent Company's em- ployees in the unit found appropriate for the purposes of collective bargaining with respect to rates of pay, wages , hours of employment , and other conditions of employment. Under date July 17, 1950, Respondent Union filed a petition for a union -shop election in Case No . 17-UA-1712. On July 18, 1950, the Board's Regional Director by letter informed Respondent Company of such filing together with the name of the field examiner to whom such case was assigned. On August 14 both Respondents executed an agreement for consent election which fixed the date of such election for August 25, 1950. The election was held pursuant to such an agreement . Out of 43 eligible voters, of whom 39 participated , 36 voted in favor of authorizing the Union to enter into an agreement with the Employer which required member- ship in such union as a condition of continued employment ; 3 votes were cast against such proposition. (Respondent Company's Exhibit No. 27.) Under date of September 5, 1950, the Regional Director for the Board's Seventeenth Region, on behalf of the Board, issued a certificate of results of union authorization election in which it was certified that a majority of the employees eligible to vote voted to authorize Interna- tional Handbag, Luggage, Belt and Novelty Workers ' Union, Kansas City Plastic and Novelty Workers' Local No. 161 , AFL, to make an agreement with Employer , Injection Molding 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company, requiring membership m the above organization as a condition of employment. (General Counsel's Exhibit No. 6.) Under date of August 15 , 1950, the Respondent Company and the Respondent Union executed a collective-bargaining agreement containing some 12 articles covering different subjects of collective bargaining. Among such articles were the following: ARTICLE III. Union Security Section 1 . Membership in the Union shall be a condition of employment for all em- ployees thirty (30) calendar days following the beginning of their employment or the effective date of this Article, whichever is the later ; provided , however , this Article shall take effect only when the appropriate provisions of the Labor Management Relations Act, 1947, had been fully complied with, and provided further , that the Com- pany will not be obligated to discharge or otherwise discriminate against any employee whose membership was denied or terminated for causes not permitted by Section 8 (a) (3) of the Act. ARTICLE IV. Check Off Section 1 . The Company agrees, upon receipt of appropriate written authorizations and directives from the employees involved , to deduct from the wages due any employee furnishing such written authorization and directive , Union Membership Dues (including assessments if they are regularly part of membership dues) and initiation fees and turn the same over to the Union herein. The Union shall secure said authorizations and directives from the employees. ARTICLE VIL Covering seniority contains eight sections and goes into practically all phases having to do with the subject of seniority. e7 (2) Respondent's contentions as to the discharge Both Respondents contend , in substance, that Woolen was discharged because (1) she refused to tender the periodic dues and the initiation fees uniformly required as a condition of acquir- ing or retaining membership in Respondent Union; and (2) she was not entitled to membership in Respondent Union at the 2-dollar rate or fee, inasmuch as such 2-dollar fee has not been timely tendered. As to contention (1). the record discloses , without dispute, that the Respondent Union demanded that she pay a 10-dollar initiation fee, which Woolen refused to pay but she did state that she was willing to pay the 2-dollar fee. The Respondent Company's brief states its contention and the issues rather clearly . It reads: In discharging Woolen, the Company considered only a legal question to be involved. It acted in good faith and only upon the advice of counsel It was done pursuant to a union- shop clause in the contract with the AFL. There is no dispute that Woolen refused, and has since refused to tender the $10 .00 initiation fee, and that she was discharged by the Company for this reason at the request of the AFL. The General Counsel contends, how- ever, that (1) that she was discharged prematurely - -within a shorter period of time than the 30 days allowed after the effective date of the union-shop clause, as required by statute; and (2) the fee was discriminatorily increased by the AFL from $ 2.00 to $10.00 in order to discriminate against the UAW. The record discloses that the election for the selection of a bargaining representative was held on June 30 and that the Respondent Union prevailed in such election . The contract which included union-security and checkoff clauses was executed onAugust 15; it provided inter alia that these 2 clauses would not be effective until the appropriate provisions of the Act including Section 8 (a) (3) had been fully complied with; that on August 14, Respondent Company and Respondent Union executed an agreement for a consent election covering a union shop to be held on August 25, 1950; that such union-shop election was held on August 25 with the result that out of 43 eligible voters 36 employees cast votes in favor of authorizing the Union to or This contract will be discussed in further detail below in connection with the discharge of Annabell Woolen. INJECTION MOLDING COMPANY 729 enter into an agreement with the Employer requiring membership in such Union as a condition of continued employment, and that 3 employees voted against such proposition. On August 25, 1950. S . C. Madden, field examiner for the Board, on behalf of the Regional Director issued a tally of ballots (for U cases) and cited this tally, which statement was witnessed by observers for the Respondent Company and Respondent Union , namely, Helen G. Mill for the Company and Angie Curtis for the union. Following the title of the tally of ballots the field examiner 's statements, made on behalf of the Regional Director for the Seventeenth Region, read as follows: TALLY OF BALLOTS For U Cases The undersigned agent of the Regional Director certified that the results of the tabu- lation of ballots cast in the election held in the above case, and concluded on the date indicated above, (August 25, 1950) were as follows: 1. Number of eligible voters ..................................... 43 2. Void ballots .. .. ....... .............................. 0 3. Votes cast in favor of authorizing the union to enter into an agreement with the Employer which requires membership in such union as a condition of continued employment ................................................ 36 4. Votes cast against the above proposition........................... 3 5. Valid votes counted (sum of 3 and 4) .............................. 39 6. Challenged ballots........... ....... 0 7. Valid votes counted plus challenged ballots (sum of 5 and 6) .............. 39 8. Challenges are (not) sufficient in number to affect the results of the election. 9. The required majority of eligible voters have cast valid ballots in favor of the proposition. For the Regional Director, 17th Region /s/ S. C. Madden S. C. Madden The undersigned acted as authorized observers in the counting and tabulation of ballots indicated above. We certify that the counting and tabulation were fairly and accurately done, that the secrecy of the ballots was maintained , and that the results were as indi- cated above. We also acknowledge service of this tally. FOR EMPLOYER FOR PETITIONER /s/ Helen G. Mill /s/ Angie Curtis (The field examiner 's statement of the tally of ballots is in evidence as Respondent's Exhibit No. 31.) At all times material herein, the proviso, Section 8 (a) (3) of the Act, reads as follows: Provided, That nothing in this Act, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization (not estab- lished, maintained, or assisted by any action defined in section 8 (a) of this Act as an unfair labor practice) to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later , (i) if such labor organization is the repre- sentative of the employees as provided in section 9 (a), in the appropriate collective- bargaining unit covered by such an agreement when made; and (ii) if, following the most recent election held as provided in section 9 (e), the Board shall have certified that at least a majority of the employees eligible to vote in such election have voted to authorize such labor organization to make such an agreement : Provided further, That no employer shall justify any discrimination against an employee for nonmembership in a labor organization (A) if he has reasonable grounds for believing that such membership was not available to the employee on the same terms and conditions generally applicable to other members, or (B) if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership, . . . (Emphasis supplied.) 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Under date of September 5, 1950, the Regional Director for the Seventeenth Region of the National Labor Relations Board, issued his "CERTIFICATE OF RESULTS OF UNION AU- THORIZATION ELECTION" (General Counsel's Exhibit No. 6). which certificate, omitting the title of the case which is No. 17-UA-1712, certifies as follows: Pursuant to the terms and provisions of the Agreement For Consent Election entered into by and between the parties in the above-entitled matter, the undersigned Regional Director of the National Labor Relations Board conducted an election by secret ballot as therein provided. No objections were filed of the tally of ballots furnished to the parties, or to the conduct of the election. Pursuant to the authority vested in the undersigned by Section 5 of the Agreement for Consent Election and by the National Labor Relations Board, the undersigned hereby certifies that a majority of the employees eligible to vote have voted to authorize International Handbag, Luggage, Belt & Novelty Workers' Union Kansas City Plastic and Novelty Workers' Local 161, AFL Make an agreement with the Employer above-named, requiring membership in the above organization as a condition of employment in conformity with the provisions of Section 8 (a) (3) of the National Labor Relations Act, as amended , in a unit appropriate for such purposes in which no question concerning representation exists. Dated at Kansas City, Mo., this 5th day of September 1950. Election held August 25, 1950. On behalf of National Labor Relations Board /s/ Hugh F. Sperry Regional Director for the 17th Region, NLRB Counsel for the Respondent Company contends that "the effective date of the agreement" should occur on the 30th day from date of the tally of ballots issued on behalf of the Regional Director by a field examiner for the Board , while the General Counsel on the other hand contends that such 30-day period should begin on September 5, 1950 , the date upon which the Regional Director issued a certificate of results of union-authorization election. It is clear from Section 203.61, quoted in part below , that the tally of ballots certificates ; being but an intermediary step leading to a final determination of the results of a union-authorization election, may not be held to be equivalent of the Regional Director's certificate issued on September 5. Section 203.61 provides that after the issuance of the tally of ballots, the parties have a 5-day period in which to file objections to the conduct of the election or to conduct affecting the results of the election and said section then provides , in part, as follows: Sec. 203. 6188 Election procedure; tally of ballots ; objections; certification by regional director ; report on challenged ballots; report on objections; exce tions; action of the Board; hearing.--... Upon the conclusion of 'the election, the Regional Director shall cause to be furnished to the parties a tally of ballots. After such tally has been furnished, any party may file with the Regional Director an original and three copies of objections to the conduct of the election or conduct affecting the results of the election , which shall contain a short statement of the reasons therefor . Copies of such objections shall be served upon each of the other parties by the party filing them. All such objections shall be filed within 5 days after the tally of ballots has been furnished , whether or not the challenged ballots are sufficient in number to affect the results of the election. If no objections are filed within the time set forth above, if the challenged ballots are insufficient in number to affect the results of the election, and if no run-off election is to be held pursuant to section 203.62, theRegional Director shall proceed in the following manner: (a) After an election conducted pursuant to an agreement waiving a hearing and pro- viding for Board determination of the facts ascertained after such election , as con- templated by section 203.54 (b), and after an election in a case in which a determination of an appropriate bargaining unit remains to be made by the Board, the Regional Director shall forthwith forward to the Board in Washington , D. C., the tally of ballots which together with the record previously made, shall constitute the record in the case, and the Board may thereupon decide the matter forthwith upon the record, or make other disposition of the case. 88 Rules and Regulations- -Series 5--and Statements of Procedure, as amended August 18, 1948. These Rules are in effect at all times material herein. INJECTION MOLDING COMPANY 731 The agreement for the consent election in this matter executed by the parties under date of August 14, 1950, provides in part, as follows: THE PARTIES HEREBY FURTHER AGREE AS FOLLOWS: 1. ELECTION - Such election shall be held in accordance with the National Labor Relations Act, the Board's Rules and Regulations, and the customary procedures and policies of the Board, provided that the determination of the Regional Director shall be final and binding upon any question, including questions as to the eligibility of voters, raised by any party hereto relating in any manner to the election. Section 5 of the agreement for consent election made between the parties reads as follows: 5. TALLY OF BALLOTS. As soon after the election as feasible , the vote shall be counted and tabulated by the Regional Director or his agent or agents. Upon the conclu- sion of the counting, the Regional Director shall furnish a Tally of Ballots to each of the parties. When appropriate, the Regional Director shall issue to the parties a certification of representatives or certificate of results of election, as may be directed. From the foregoing it is clear that under the Act and the Board's Rules and Regulations the tally of ballots is merely an intermediate step leading up to a certificate of results of union-authorization election, and does not in itself or by itself constitute a certificate of results of union-authorization election. It is so found. Respondent Company's contention (1) is without merit. As to contention ( 2), wherein the General Counsel contends in substance and effect that the parties who were formerly members of the UAW-CIO were denied membership in Respondent Union upon the same terms and conditions generally applicable to other members. The record discloses that prior to the strike settlement of June 2, Angie Curtis, who subsequently became secretary-treasurer of Respondent Union, actively solicited membership in what was then referred to as the IAM Union with the active assistance of Forelady Dorothy Rodgers. At this time the initiation fee was $2 and there has been found hereinabove that many of the then members of the UAW-CIO were solicited by Curtis and encouraged by Rodgers to sign AFL application cards . Commencing on June 5 and continuing thereafter, the Respondent announced a rule against union activities on company property during working hours . Insofar as the record discloses , the Respondent Union or its agents made no solicitation of new members among the returned UAW-CIO employees who had returned to work on June 5. Following the June 30 election, in which the Respondent Union prevailed, different em- ployees , formerly members of the UAW-CIO, sought out Angie Curtis and attempted to get application- for-membership cards in Respondent Union from her, but without success. For instance, Emma Bandy testified that about 3 weeks before she was terminated on July 25 she spoke to Curtis and asked for a "card to fill out for the AFL." Curtis stated she had no card with her. Elsie May testified that "about 3 weeks, I imagine after the election" she asked Curtis for an application card. She did so about 3 nights in succession without results and Curtis would say, "I'll get it to you tomorrow or I forgot." Elsie May received no card from Curtis. Nettie Harper testified that in the "first half of July" she asked Curtis to bring her a card to fill out, "a union card." Curtis stated that she had no cards then , but would bring one the next night. Harper renewed her request for such card on the next 2 nights and on each : -.s ion was informed by Curtis that she had forgotten them. ,is has been set out hereinbefore, three of the former UAW-CIO girls called on Helgesen with reference to their inability to get application- for-membership cards for Respondent Union. He informed the three girls that Angie Curtis had the cards and that he would get in touch with her and have her deliver the cards to the girls . Curtis, however , did not thereafter produce any application cards. As is also stated hereinabove, Respondent Union held a meeting at its union hall to which the UAW-CIO former member-employees were invited. On this occasion they were informed that the initiation fee had risen to $10, that they might file application cards, after which they would be investigated; and if such an investigation disclosed to the union membership of Re- spondent Union that such applicants prove satisfactory members ,the former UAW-CIO mem- ber-employees would be so advised. Insofar as the record discloses, other than Woolen, none of the claimants herein were invited to join Respondent Umon. As is set out hereinbefore, Helgesen, in person, demanded that Woolen join Respondent Union and pay the initiation fee of $10, which she declined to do. Further requests or demands were made upon Woolen by a stewardess of the Union, and by Henkel, the president of the Union. About a week before her discharge on September 25 she was called to Archer 's office where he requested that she sign an application. 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Inasmuch as it clearly appears from the record herein that the union- security clause and the bargaining contract between the Respondents had not become effective until 30 days after September 5, or on October 5 , 1950, therefore, neither the Respondent Union , its agents or officials, nor the Respondent Company had a legal right to demand that Woolen join Respondent Union and pay the 10-dollar initiation fee or any fee. It is so found. The record indicates that following the election of June 30, in which the Respondent Union prevailed, no effort was made by Respondent Union or its responsible officials to induce UAW-CIO adherents to make applications for membership. On the contrary, such former ad- herents of the UAW-CIO who attempted to get application- for-membership cards from Re- spondent Union's representatives were unable to do so. It is the contention of the Respondents that the Respondent Union's charter was "closed" on July 12, after which it is contended the initiation fee had been raised from $2 to $10. While the record indicates that some of the former UAW-CIO adherents attempted to get application-for-membership cards prior to July 12, the record does not fix the date with any certainty as to when Woolen requested an appli- cation- for-membership card. Woolen testified that sometime between July 4 and July 25 she attended the union meeting of the Novelty Workers on a certain Sunday afternoon, at which time she signed an application- for-membership card . While a number of witnesses testified as to this meeting, none testified as to the exact date. The charter had been closed at the time of such meeting. Under the Act and Respondent Union's constitution, the Union is at liberty to select its own members and may refuse membership for a good reason or for no reason at all. Since it does not affirmatively and definitely appear that at the different times Woolen offered to pay the 2-dollar initiation fee to the stewardess , the Local's president, on an occasion when the latter exhibited the bargaining contract to her and on a further occasion about a week before her discharge on September 25 when ( in Archer 's office in the presence of the Respondent Union's president) she offered to pay the $2, that such offers or any of them were made at a time when the initiation fee was in fact $2, the record will not support a finding that the Respondent Union discriminatorily denied membership to Woolen at the 2-dollar fee. It is so found. Re- spondent's contention ( 2) has merit. Paragraph XIII of the complaint alleges that Respondent Company did on or about December 1, 1950, offer to reinstate Woolen on condition that she withdraw the unfair labor practice charges she had filed, but the Respondent Company refused to reinstate Woolen because of her refusal to withdraw such charges . As has been found above, Woolen, at the invitation of Attorney Browne made on November 30, visited Browne at his office on December 1 in com- pany with Emma Bandy. From the testimony which has been detailed at some length herein- above, the undersigned found that Woolen understood or concluded that before she could get her job back it would be necessary for her to withdraw the unfair labor practice charges theretofore filed and pay the Respondent Union the 10-dollar initiation fee. Attorney Browne testified and contended that he at no time offered reinstatement to Woolen on condition that she withdraw the unfair labor practice charges, but did state that she would have to pay the Union's 10-dollar initiation fee. He indicated that Woolen 's return to work would be on the basis of a "compromise." While Woolen clearly understood that the "compromise" required that she pay the Union's initiation fee and withdraw the charges , the undersigned is of the opinion that, inasmuch as before such charges could have been withdrawn it would have been necessary to secure the consent of the Regional Director for such withdrawal , Attorney Browne did at some stage of the conversation make some reference to such requirement in legal terms not clear to Woolen or to her associate Emma Bandy . On the basis of the fore- going and the record, the undersigned is of the opinion that the record will not support a finding that Woolen was refused reinstatement because she would not or did not agree to with- draw the unfair labor practice charges at the request or suggestion of Respondent Company's counsel allegedly made on December 1. 1950 . It is so found. Concluding Findings as to Discharge It is conclusively clear that. Woolen was an active adherent on behalf of UAW-CIO, Local 132; she joined the strike called by the latter and was active in the picket line during the strike; following the June 30 election and on the first opportunity accorded her she signed an application for membership in Respondent Union; prior to said election of June 30, it was generally known and announced that the initiation fee would be $2, but at the time of the meet- ing held in Respondent Union's local hall, to which former adherents or members of the UAW-CIO were invited, Woolen along with others present was informed that they might sign the application-for-membership cards , but would have to be investigated and if accepted the initiation fee would be $10 . Woolen at all times contended that she was entitled to be admitted at the fee of $2 like one of the employees who was employed on the same date as was Woolen. INJECTION MOLDING COMPANY 733 As a result of Woolen 's adamant refusal to pay a 10-dollar initiation fee when solicited to do so by Helgesen, Henkel, the local's president, and Archer (on the occasion some week or so before Woolen's discharge, when he sought to have her sign an application for membership, which she refused), Respondents were well advised that Woolen would not in any event pay the 10-dollar initiation fee. Helgesen's demand that Woolen pay a 10-dollar initiation fee was made prior to the union-shop election. 89 Helgesen demanded that Woolen pay the 10- dollar initiation fee required. When Woolen refused, Helgesen stated that she would be out of a job within 30 days. Thus it is found that Respondent Union by Helgesen's act made its demand for initiation fees prior to the union-shop election some 30 days, and an additional 30 days prior to the effective date of the union-security agreement. It is further clear that at the time Respondent Company discharged Annabell Woolen on September 25, 1950, it did so at a time when Woolen could not lawfully be required to pay such dues as a condition of employ- ment. In prematurely applying the union- shop agreement in order to effect the discharge of em- ployee Woolen on the Respondent Union's demand, the Respondent Company violated Section 8 (a) (3) and (1) of the Act and the Respondent Union violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act, it is so found. go It will be recommended below that the Respondent Company offer Woolen immediate and full reinstatement to her former or substantially equivalent position, without prejudice to her seniority or other rights and privileges; and that both Respondents jointly and severally make her whole for any loss of pay she may have suffered as a result of the discrimination against her. The testimony concerning the events and issues in the instant case, considered hereinabove, is at times conflicting and contradictory. In the main however such conflict is a matter of degree only, in that events testified to appear to have, on the whole, occurred, but the versions of the witnesses are in conflict in varying degrees. The undersigned has not specifically set forth all testimony on conflicting points, but has quoted much testimony pro and con and in the main expressly credited the version believed, and in doing so has considered the demeanor, candor, fairness, and interest or lack of each element in such witnesses. Respondent Company's chief witnesses were its president, Archer, and Forelady Rodgers. The former's credibility and position has been passed upon hereinabove in connection with section III, A, 1. Rodgers' credibility has been passed upon as to certain instances. The same is true as to Foremen Banker, Petrovic, and Epling. The record discloses that of the supervisory force of the Company, Rodgers was the most active on the Company's behalf against the UAW-CIO's efforts to organize the plant. She was aggressive , persistent , deter- mined, and able in such efforts and undoubtedly in full sympathy with Archer's desires in the matter. B. The alleged discriminatory discharge of Edward Field; interference, restraint, and coercion During the hearing, and at the close of Field 's testimony, the General Counsel moved to amend the complaint to allege that the Respondent Company had further violated Section 8 (a) (1) and 8 (a) (3) of the Act by improperly deducting from the wages of its employees items beyond periodic dues. 91 Field was employed by Respondent Company on September 9, 1947. During his employment he worked as a machine operator and a floorman in the production room . Formerly, floormen e9 Helgesen's report to the Regional Director that the Respondent Union's position and contentions in the instant matter stated, and he also testified, that he went to the plant and demanded that Woolen sign an application-for-membership card. Woolen testified without contradiction that at the meeting held at the Respondent Union's hall, above referred to, she signed and turned in an application- for-membership card. %Colonie Fibre Company, Inc., 69 NLRB 589, 163 F. 2d 63 (C. A. 2); Kingston Cake Co , 97 NLRB 1445, on remand from United States Court of Appeals, Third Circuit, 191 F. 2d 563 91 At the time when such motion was made, counsel for Respondent Company questioned the authority of the General Counsel's representative to make such motion, whereupon the undersigned ruled that the motion would be taken up at a later date . At the close of the taking of the testimony, the General Counsel renewed such motion which motion was granted by the undersigned subject to motion to strike. The motion to strike was made by counsel for Respondent Company whereupon the undersigned reserved ruling thereon; and the under- signed now rules may be and is hereby so amended. 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as such relieved the machine operators during lunch periods and rest periods and on occasion when the operator did not appear for work they took over the operations of their machines. Their further duties were to take waste matter and rejects away and to make and post a record of the daily production of the operator . Insofar as the record discloses, the floormen had neither supervisory duties nor control over the machine operators. Field joined the UAW-CIO local; went out on strike on April 17; returned to work after the strike-settlement agreement of June 2 which provided for work to begin on June 5. He voted at the June 30, 1950, election. Prior to the strike, Field worked as a floorman and a machine operator. He became a floorman 6 months after his first employment and continued in that position, except on those occasions when it was necessary for him to operate a machine in the absence of other operators. Notwithstanding that Edward Field had seniority as a floorman, on his return after the strike he was assigned as a machine operator or mechanic, although the floorman with the greatest seniority was entitled to the floorman 's position. Edward was assigned to grinding scrap. He worked as a floorman for a couple of days until all the machines were in operating condition and then was put back on the machine . He asked Foremen Banken, Epling , Martin, and Clarence Price why he had not been assigned to his old job as floorman, but could get no definite reply except that Foreman Martin told him that they wanted to break in the new men for a month or so and that then they would give the old floormen their jobs back. Field waited a month and nothing occurred and then he took the matter up with Banken again, who stated that he would see President Archer . He did so and then reported to Field that he was classed as a machine operator and if he didn 't want to run the machines he could quit. On September 15, 1950, Field joined the Respondent Union and paid his 10-dollar initiation fee. After his attendance at a union meeting on one occasion he did not attend the next meeting. The day after the "next meeting " when he went to work his attention was called to a posted notice to the effect that any union member who did not attend the meeting would be fined $3. Mike Grazda92 called Field's attention to the notice and commented that he never attended meetings . Field told Grazda that he didn't have to pay the fine, as it was against the law, but the latter stated that he would personally see that Field lost his job if he didn 't pay it. On the following day, Grazda informed Field that the fine would only be $2, or that it was only "a $2 fine." Field replied that he was still not paying and on the following day Grazda informed Field that the fine would be brought down to a dollar . Field then got in touch with Foreman Banken and reported the matter to him and stated that he wanted to go to the office and tell them not to take any money out of his check or "union time ." As Field was operating the machine at the time, Banken said that he would go to the office and tell Miss Mayo not to take any money out of the check. On the following day Grazda suggested to Edward Field, that since nobody liked to work with him in the plant , he should quit. 93 Thereafter , Field decided to quit and gave Foreman Banken a week's notice. He then re- ceived his check and found that "they" had taken the dollar out for the fine, and "I just let it go " Article XIV of the contract covering checkoffs reads as follows: Sec. 1. The Company agrees , upon receipt of appropriate authorizations and directives from the employees involved to deduct from the wages due the employee furnishing such written authorization and directive, Union membership dues ( including assessments if they are regularly part of membership dues) and initiation fees and turn the same over to the Union herein. The Union shall secure said authorization and directives from the employees. Helgesen, who at the time was international representative of Respondent Union, testified as follows: Q. (By Mr . Sacks) Mr. Helgesen, the members of your Local 161 signed authorities [sic] which covered the deductions by the Company of their initiation fee, their periodic dues, and any fines and assessments , did it? MR. BROWNE: I object to the question, if the court please. The authority itself is the best evidence. 92Grazda was an employee in the production department with the same type of position as was held by Field, namely that of floorman. 93 The finding in this connection is made by reason of the fact that it is part of a res gestae and not on the theory that Respondent Company is responsible for Grazda's sugges- tion to Field on this occasion. INJECTION MOLDING COMPANY 735 TRIAL EXAMINER WARD. He may answer it, granting that the general rule is as counsel states. A. It covered initiation fees and dues only. Q. (By Mr. Sacks) Initiation fees and dues only? A. That is right. Q. What about a fine or assessment for not attending meetings? A. We had no fines. I think we got a ruling from Denham some time that a self- imposed assessment was legitimate and I think the Justice Department too, so ruled it at one time, if I remember correctly, and a number of organizations , as,you well know, still collect self- imposed assessments , but we have no fines. Q. And your Local 161 will, deduct, in addition to periodic dues, assessments,-- A. (Interrupting) We don't anymore. Q. You don't anymore? A. No. Q. You did, though? A. I think in the early part of the contract we did, some was paid. Q. Some assessments were paid that way? A. Yes. There are no more deductions on assessments. Concluding Findings The General Counsel neither in his brief nor oral argument before the undersigned dis- cussed his theory or contentions which would tend to indicate that Field's voluntary resig- nation constituted a constructive discharge in violation of Section 8 (a) (3) of the Act. Under the facts in the record , it appears to the undersigned that the only contention to such effect could be based upon Field's testimony and contention to the effect that he was not returned to his position as a floorman after his return following the settlement of the strike. Insofar as the testimony and the evidence shows, his position prior to the strike consisted of dual duties , those of a floorman and those of a machine operator, wherein the latter occupation included mechanical work, which caused Field to feel that he was being discriminated against when he was not returned to the floorman' s job after several months. Insofar as the record discloses his pay was just the same on either assignment , floorman or machine operator . The Respondent was at liberty to continue him on machine work either full or part time. The fact that Foreman Banken informed him that he was relieved from the floorman operation while the Respondent Company trained other employees in that job, does not in any manner constitute discrimination. 24 The record will not support a finding that Respondent Company discriminated against Edward Field in violation of Section 8 (a) (3) of the Act. It is so found. It is clear and undisputed that the Respondent Company did withhold from Field's pay an illegal assessment ; a withholding not authorized in any manner by Field; and one which he notified Foreman Banken was likely to be withheld; requested an opportunity to go to the office manager , Mayo, to stop such payment; and while Banken stated that he would attend to that particular matter, this assessment was taken from Field's pay and not in- cluded in his check. Such conduct on behalf of Respondent Company, which tended to force Field to attend union meetings against his will, amounts to interference, restraint, and' coercion against Field in violation of Section 8 (a) (1) of the Act. It is so found. 95 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent Company set forth in section III, above, occurring in con- nection with the. operations of Respondent Company 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. 9%See Coulbourn Lumber Company, 100 NLRB 622; 30 LRRM 1326, decided August 15, 1952. 95 The General Counsel in his brief for the first time suggests that the deductions from the wages of Field were not only a violation of Section 8 (a) (1) and (3) of the Act, but were also a violation of Section 8 (a) (2) thereof. Since such suggestion was not timely made and was not included in the motion to amend the complaint, it was therefore not litigated and must be, and is, denied. 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Having found that the Respondents have engaged in certain unfair labor practices, it will be recommended that they cease and desist therefrom and take certain Affirmative action dfsigned to effectuate the policies of the Act. It will be recommended that the Respondent Company, namely , Injection Molding Com- pany, offer to Emma Bandy, Nettie M. Harper , Ruby Hobbs ,*Louise Lembke, Elsie Mary May, Nona Shaw, Mildred Spangler Ludwig, Nadine Ring, and Hazel Timmons immediate and full reinstatement to their former or substantially equivalent positions 9t without preju- dice to their seniority or other rights and privileges , to make them whole for any loss of pay they may have suffered by reason of the Respondent Company's discrimination against them by payment to them and each of them, of a sum of money equal to that which he or she would normally have earned as wages from the date of his or her discharge to the date of Respondent Company's offer of reinstatement, less his or her net earnings 07 during such period. The loss of pay will be computed upon a quarterly basis, in accordance with the formula adopted by the Board in F. W . Woolworth Company, 90 NLRB 289 . Earnings in any one particular quarter will have no effect upon the back-pay liability for any other quarter. As to Evelyn Russell, it will be recommended that Respondent Company make her whole for any loss of pay she may have suffered by reason of Respondent Company's discrimination against her, by on or about September 26, 1950 , reducing her agreed rate of pay from 95 cents per hour to 85 cents per hour because she had filed a charge herein which she insisted upon processing before the Board , by payment to her of a sum of money equal to that which she would have earned as wages from September 26 to October 6, 1950, the date of her last termination. As to Annabell Woolen, it will be recommended that Respondent Company offer her im- mediate and full reinstatement to her former or substantially equivalent position without prejudice to her seniority or other rights and privileges , and jointly and severally with Respondent Union, make her whole for any loss of pay she may have suffered by reason of Respondents' discrimination against her by payment to her of a sum of money equal to that which she normally would have earned as wages from the date of her discharge to the date of Respondent Injection Molding Company's offer of reinstatement , less her net earn- ings during said period , which shall be computed in the manner set forth above in connection with the discharge of other named employees . The undersigned also recommends that Respondent, Injection Molding Company, make available to the Board , upon request, payroll and other records to facilitate back-pay computations. F. W. Woolworth Company, supra. CONCLUSIONS OF LAW 1. International Union, United Automobile, Aircraft & Agricultural Implement Workers of America. UAW-CIO, and International Handbag, Luggage, Belt and Novelty Workers' Union, Kansas City Plastic & Novelty Workers' Union, Local No. 161, AFL, are each labor organizations within the meaning of Section 2 (5) of the Act. .2. By discriminating in regard to the hire and tenure of employment of Emma Bandy, Nettie M. Harper , Ruby Hobbs , Louise Lembke, Elsie Mary May, Nona Shaw, Mildred Spangler Ludwig, Hazel Timmons , and Nadine Ring, all as hereinabove found, the Respondent Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By, on or about September 26, 1950, reducing the agreed upon rate of pay of Ruby Hobbs and Evelyn Russell from 95 cents per hour to 85 cents per hour for the reasons that 96In accordance with the Board's consistent interpretation of the term, the expression "former or substantially equivalent position" is intended to mean "former position where- ever 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. 9TBy "net earnings" is meant earnings less expenses, such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working elsewhere, which would not have been incurred but for this unlawful discrimination ana the consequent necessity for his or her seeking employment elsewhere. Crossett Lumber Company, 8 NLRB 440. Monies received for work performed upon the Federal. State, county, municipal, or other work- relief projects, shall not be considered as earnings. Republic Steel Corporation v. N. L. R. B,, 311 U. S. 7. THE J. C. HAMILTON COMPANY 737 they served notice that they proposed to process the charges filed herein before the Board, Respondent Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (4) and (1) of the Act. 4. By such discrimination and by interfering with, restraining, and coercing its employees in exercising the rights guaranteed in Section 7 of the Act, the Respondent Company has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. By Respondent Company's conduct in acceding to the untimely and premature demand of Respondent Union for the discharge of Annabell Woolen on the basis of an illegal contract executed between Respondent Company and Respondent Union, described hereinabove, all contrary to the provisions of Section 8 (a) (3) of the Act, to the end that Respondent Union could enforce its demands for excessive union dues and assessments against employees of Respondent Company; and to encourage membership in Respondent Union, the Respondent Company thereby engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act. 6. By the making of and enforcing of such demand , and causing Respondent Company to so discriminate, Respondent Union has engaged in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 7. By discriminating in regard to the hire and tenure of employment of Annabell Woolen, thereby encouraging membership in the Respondent Union, and enabling the Union to require the payment of excessive dues and illegal assessments , Respondent Company has engaged in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act. 8. By causing Respondent Company to discriminate against saidAnnabell Woolen, as afore- said, Respondent Union has engaged in unfair labor practices within the meaning of Section 8 (b) (2) and 8 (b) (1) (A) of the Act. 9. 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.] J. C. HAMILTON, J. C. HAMILTON, JR., ED. L. HAMILTON, AGNES HAMILTON, and SARA LEE MANN, CO-PARTNERS, d/b/a THE J. C. HAMILTON COMPANY and INTERNA- TIONAL ASSOCIATION OF MACHINISTS, AFL. Case No. 16-CA-528. May 5, 1953 DECISION AND ORDER On February 4, 1953, Frederick B. Parkes II issued his Intermediate Report in the above-entitled proceeding, finding 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 found that the Respondents had not engaged in certain other unfair labor practices alleged in the com- plaint and recommended dismissal of those allegations. There- after, the Respondents filed exceptions to the Intermediate Report and a supporting brief. The Board' has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was 1 Pursuant to Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this proceeding to a three- member panel [Members Houston, Murdock, and Styles]. 104 NLRB No. 84.