Pepper & Potter, Inc.

PEPPER & POTTER, INC. 951 All production and maintenance employees at the Em- ployer's paint, varnish, and enamel plant at,Cliicago, Illinois, excluding salesmen, office clerical employees, laboratory employees, professional employees, and supervisors as de- fined in the Act. Because we have overruled the Union's exceptions, and because the tally of ballots shows that the Union lost the election, we shall issue a certification of results of election to this effect. CERTIFICATION OF RESULTS OF ELECTION IT IS HEREBY CERTIFIED that a majority of the valid ballots hes not been cast for Paint, Varnish, Lacquer & Allied Products, Local 950, Brotherhood of Painters, Decora- tors & Paperhangers and Miscellaneous Warehousemen, Local 781, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, and that the said labor organization is not the exclusive representative of the employees of the Employer, in the unit heretofore found appropriate, within the meaning of Section 9 (a) of the Na- tional Labor Relations Act. PEPPER & POTTER, INC. and RALPH DIAMOND, COSMO BARBIERI, ELIAS DEGESTN'OS, JOSEPH LINYEAR, HAYNES O'NEIL, NATHAN SACHER, JOHN E. McCOVERY, HARRY TIMMERMANN; AND MARGARET O'LEARY LAN- DOLFI. Case No. 2-CA-1912. May 13, 1953 5 DECISION AND ORDER On November 12, 1952, Trial Examiner Frederic B. Parkes II issued his Intermediate Report in the above-entitled pro- ceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices in violation of Section 8 (a) (3) and (1) of the Act, and recommending that the Respondent cease and desist therefrom and take certain affirmative a tion, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in a certain other alleged un- fair labor practice and recommended that the complaint be dismissed with respect thereto.' Thereafter the Respondent filed exceptions to the Intermediate Report. The Board has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was com- mitted. The rulings are hereby affirmed. The Board has con- sidered the Intermediate Report, the exceptions, and the entire record in this case, andhereby adopts the findings, conclusions, 1 In the absence of exceptions to the Trial Examiner 's finding that the discharge of Margaret O'Leary Landolfi did not constitute a violation of the Act, we shall dismiss the complaint with respect thereto. 104 NLRB No. 126. 952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and recommendations of the Trial Examiner with the following additions : We agree with the Trial Examiner that the activities of the Respondent's employees in connection with their change in affiliation from Local 977 to Local 259, both locals of the International Union, United Automobile, Aircraft and Agri- cultural Implement Workers of America, UAW -CIO, and their ensuing requests to, and negotiations with, the Respondent were protected concerted activities within the meaning of the Act. Accordingly, we find, as did the Trial Examiner, that such activities cannot serve the Respondent as a basis for the discharges. The Respondent also urges byway of defense to the complaint that it was justified in discharging these employees because of an alleged repudiation by them of the existing contract by re- fusing to work in accordance with its terms. In support of this contention, the Respondent relies on the rule in the Sands case.' Like the Trial Examiner, we find no merit in this contention. In our opinion, the Sands case is entirely distinguishable. As the Board has characterized the situation present in that case, there was "such hardening in the attitudes of the negotiators as is customarily recognized as a bargaining impasse . . . which, under certain circumstances, may justify unilateral action by an employer."' Moreover, the union in the Sands case, after the parties had had "repeated meetings" to discuss the terms of the existing contract, confronted the company with an ultimatum of either adopting the union's position or closing its plant, conduct which the Supreme Court characterized as a strike in breach of contract.4 We have carefully analyzed the record here and find that it clearly presents no such situation. Neither the employees nor the representative of Local 259 took an adamant or unalter- able position or engaged in a strike. Rather, it was the Respondent who evinced a determination to force the issue. The employees' position, based on their interpretation of the existing contract's provision with respect to its termination prior to its expiration date, was not so unreasonable as to support a conclusion that they were determined to repudiate the contract.' This position was advanced only at the first actual meeting with the Respondent,° and not pressed there- 2N. L. R. B. v. Sands Manufacturing Co., 306 U. S. 332. SBradley Washfountain Co., 89 NLRB 1662. 4Automobile Workers v. Wisconsin Board, 336 U. S. 245. sin the Sands case, the Court found that the contract provision was devoid of any ambiguity, and that "the record makes it clear that the committee which negotiated the contract on behalf of the union fully understood its terms in the same sense as did the respondent." This is not true here. On the contrary, as our dissenting colleague points out, "The employees ... switched their membership to Local 259... in the mistaken belief that under section 40 of the contract this action would be effective to work a legal termination of the contract." 6 The testimony of Respondent's counsel cited by our dissenting colleague to the effect that this meeting ended with "strong assurances" from Local 259 and the shop steward "that the contract was at an end and that the men would not work under it" is, of course, only counsel's characterization of his own impression of the meeting. It is not, consequently, reliable evidence upon which to base a conclusion that the employees terminated their contract. G. 1 PEPPER & POTTER, INC. 953 after at the instance of the employees . Nevertheless, the Respondent on the next day took the initiative in its own hands, called the employees together , and demanded that each affirm or disaffirm the requests made by their representative the day before . When the employees affirmed, the Respondent took the precipitate action of then and there discharging each of the employees. We cannot agree with our dissenting colleague that the em- ployees "terminated" or "repudiated" their contract by their conduct as evidenced by the conferences of April 17 and 18, 1951 . The record shows that there was a change of affiliation by the employees from Local 977 to Local 259 which, so far as can be determined from the testimony , Local 977-- a local of the same International --did not oppose; that Local 259, because of dissatisfaction among the employees and because it interpreted the terms of the existing contract to warrant it, sought , through negotiation , to obtain a new contract; and that during the course of the initial meeting between the Union and the Respondent , Local 259' s representative emphasized the dissatisfaction of the rank-and-file with the current con- tract by stating that the men would not work under it. No mention was made of a strike nor was there any amplification of this remark . 7 To convert this factual situation into a strike situation --as our dissenting colleague evidently does without specifically saying so --is to reach a conclusion not only un- supported by the facts but fraught with dangerous implications as well . In the day-to-day course of labor-management rela- tions it is by no means unusual for parties to a contract - -wheth- er employer or union--to evince dissatisfaction with its terms and to seek to enter into negotiations looking to changes. On such occasions , it is likewise not unusual for one or more of the parties to underscore its position with the kind of state- ment that was made here . To seize only upon such statements without regard to the entire discussion , to use them to taint the conduct of the employees with illegality, and in that way to remove the protection of the Act from what are clearly concerted activities , would, in our judgment, imperil the very rights which the Act guarantees employees , and which are basic in the policies of the Act. Under these circumstances , and on the basis of the entire record, we find that the discharge of employees Diamond, Barbieri , Degestinos , Linyear, O'Neil, Sacher, McCovery, and Timmermann because they had engaged in protected con- certed activities, constituted interference , restraint, and coercion , within the meaning of Section 8 (a) (1), as well as discrimination in regard to hire or tenure of employment, within the meaning of Section 8 (a) (3). Whether the dis- criminatory conduct is viewed as a violation of Section 8 7 The dissent relies heavily on the partial work stoppage of April 12 and 13 to buttress its position that a strike was inevitable. Aside from the fact that action was waived by the Re- spondent, as the Trial Examiner points out, the fact that the Local 259 representative did not even know about the stoppage , and when he was informed , sent the men back to work, clearly indicates that the stoppage was not part ofa union "plan, " was limited solely to the grievance dispute, and was wholly unrelated to Local 259's request for contract negotiations. 9 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) (1) or 8 (a) (3) of the Act, we find that effectuation of the policies of the Act requires that these complainants be offered reinstatement with back pay, as recommended by the Trial Examiner. ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Pepper & Potter, Inc., New York, New York, its agents, officers, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Local 259, International Union, United Automobile, Aircraft and Agricultural Imple- ment Workers of America, UAW-CIO, or any other labor organization of its employees, by discriminating in regard to the hire and tenure of their employment or any term or con- dition of employment. (b) Interrogating employees as to their union affiliation, sympathies, desires, and activities, or in any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Local 259, International Union, United Automobile, Aircraft and Agricultural Implement Work- ers of America, UAW-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection, and to refrain from any or all of such activities ex- cept to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a con- dition of employment as authorized in Section 8 (a) (3) of the Act, as guaranteed in Section 7 thereof. 2. Take the following action which the Board finds will effectuate the policies of the Act: (a) Offer to Ralph Diamond, Cosmo Barbieri, Elias De- gestinos, Joseph Linyear, Haynes O'Neil, Nathan Sacher, John E. McCovery, and Harry Timmerman immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole, in the manner set forth in the section of the Intermediate Report entitled "The Remedy," for any loss of pay they may have suffered by reason of the Respondent's discrimination against them. (b) Post at its service shop in New York, New York, copies of the notice attached to the Intermediate Report and marked "Appendix A."8 Copies of such notice, to be 8 This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner ," the words "A Decision and Order ." 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." PEPPER & POTTER, INC. 955 furnished by the Regional Director for the Second Region (New York, New York), shall, after being duly signed by the Respondent's duly authorized representative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for a period of at least sixty (60) con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Second Region, in writing, within ten (10) days from the date of this Order what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the Respondent discriminatorily discharged Mar aret O'Leary Landolfi in violation of Section 8 (a) (3) and (1) of the Act, be, and it hereby is, dismissed. Member Murdock, dissenting: I find it impossible to concur in the conclusion of my colleagues that the Respondent violated Section 8 (a) (3) of the Act through the discharge of these employees. In my opinion, the burden of observing the terms of a collective- bargaining contract falls equally on the shoulders of both labor and management, and the refusal of one party to per- form its contractual obligations should not be both excused and rewarded through a tenuous legal interpretation of the facts. The subsidiary facts, themselves, are uncontroverted. The Respondent was committed by the statute to bargain with Local 977 as the certified representative of its employees under a certificate less than a year old. This duty it per- formed and a valid contract was signed pledging both the Respondent and Local 977, together with these employees, to certain wages, hours, and conditions of employment for a stated period. During the term of that contract, and but a few short months after the certification of Local 977, it is apparent that the employees became dissatisfied with the collective bargain they had made through that representa- tive. The employees thereafter switched their memberships to Local 259 of the same International Union in the mis- taken belief that under section 40 of the contract this action would be effective to work a legal termination of the contract. There can be no question that this action did not, in fact or in law, terminate the contract they had made.9 Nevertheless, despite the fact that Local 977 was their certified bargaining representative, through Local 259 the employees notified the Respondent of their action and demanded negotiation of a new agreement . This demand was followed by a work stoppage 9Local 977 continued to exist. The conditions for termination of the contract provided in section 40--Local 977's ceasing to be an accredited affiliate of the C. I. 0., or becoming "merged, amalgamated, consolidated" or "absorbed" by another C. I. O. local,-- accordingly did not arise. 956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD apparently in connection with dissatisfaction over a grievance disposed of in accordance with the existing contract. This work stoppage, it may be observed, although of short dura- tion, was clearly in violation of that contract. Thereafter , at a meeting of the Respondent , a Local 259 representative , and the shop steward, the Respondent was told that the contract with Local 977 "would not be lived up to by the men" because of dissatisfaction with its tems and that the Respondent must negotiate a new contract with Local 259. According to the testimony of the Respondent's counsel, as credited by the Trial . Examiner, the meeting concluded with "strong assurances " from Local 259 and the shop steward "that the contract was at an end and that the men would not work under it." My colleagues discount this statement as being merely the "characterization" of the Respondent's counsel, and therefore not reliable evidence. The Trial Examiner, however, credited the account of Respondent's attorney as being accurate , and the majority offers no reason for reversing that credibility finding, if they, indeed, do so. Moreover, this comment is amply buttressed by the other credited statements of the same general tenor made at the same meeting and unchallenged by the majority . The following day, the Respondent's employees, with two exceptions, ex- plicitly affirmed these demands for a new contract and their determination not to work under the existing and valid col- lective bargain that they had made. They were then dis- charged. The position of my colleagues is that the change of af- filiation of these employees and "their ensuing requests to, and neogtiations with, the Respondent were protected concerted activities." The majority further finds that the "alleged repudiation " of the existing contract by these em- ployees did not justify their discharge . I submit that the latter conclusion is patently untenable in the light of the foregoing facts and the applicable law. It is true that em- ployees are not eternally committed to representation by any single union . Changes in affiliation are not uncommon and the Board, indeed , has on occasion amended certifica- tions during their initial year to reflect such action. To this limited extent the disaffiliation and reaffiliation of em- ployees herein may well have been in a protected area. Likewise, as the discussion of the Trial Examiner indi- cates, the Act does not prohibit requests for voluntary renegotiation of terms of a contract during its effective period . But the conduct with which the Board is confronted in this case goes far beyond requests for voluntary renego- tiation of a contract . The employees here terminated their contract in complete disregard of its terms by flat and unequivocal statements to the Respondent that they would no longer work under the provisions of that agreement. The Supreme Court has previously held that "The Act does not prohibit an effective discharge for repudiation by the PEPPER & POTTER, INC 957 employee of his agreement , any more than it prohibits such discharge for a tort committed against the employer." 10 The majority opinion, however , contends that the rule of the Sands case, authorizing discharge under such circum- stances, does not apply here . This position is taken on the ground that "Neither the employees nor the representative of Local 259 took an adamant or unalterable position or engaged in a strike. Rather, it was the Respondent who evinced a determination to force the issue ." ( Emphasis supplied .) The conclusion thus reached seems more than a little incongruous when matched with the undisputed facts of this case as summarized above . On 2 successive days, the Respondent is told without modification or reservation that the employees would not live up to the contract and that "the contract is at an end and the men would not work under it." On query , the employees individually affirmed this position . It is inconceivable to me that this can be considered other than an " adamant " position in the ordinary meaning of the word . It is certainly well within the Supreme Court's description in the Sands case of a situation in which "Res- pondent rightly understood that the men were irrevocably committed not to work in accordance with their contract." It is particularly important to recognize that these state- ments were made against a background in which one strike had already occurred . The majority admits that these em- ployees ceased work, at that time, in violation of, and in protest against , the terms of the same collective bargain they shortly thereafter refused to observe . My colleagues, however , would ignore the realities of the situation and the significance thereof, on the ground that the Respondent waived its rights to discharge the employees for that strike. (It should be noted that this admitted forbearance of the Re- spondent is in marked contrast to the " precipitate action" with which the majority later charges the Respondent.) This conclusion as to " waiver," of course, has nothing to do with the point under discussion , i. e., the emphasis which this prior strike gave to the announced intention of the employees not to work under their contract . Moreover, to hold further , as the majority does, that the strike was "wholly unrelated to Local 259 ' s request for contract negotiations" when both actions were part and parcel of the same open refusal to work under the terms of the collective bargain, is to not see the forest for the trees . In short , my colleagues would require, in this situation , that the Respondent wait to see if his employees would strike rather than observe the contract when they had just finished doing precisely that. I cannot believe, as my colleagues seem to, that the Re- spondent was under a further duty, at the possible cost of its business , to probe more deeply into the employees' minds or endeavor to overcome their expressed intention, which on its face was an "unalterable " position. toN. L. R. B. v. Sands Manufacturing Co., supra. 958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The final conclusion of the majority that "the Respondent evinced a determination to force the issue" must be measured against the facts which clearly show the action of the em- ployees and Local 259 to have been entirely initiated by those employees and that Local and to have been pressed with considerable vigor upon the Respondent with the additional emphasis of the work stoppage. Under these circumstances, I do not believe that this Board should force an employer to wait patiently and supinely for an illegal strike to be called at a time more convenient to his employees." The majority opinion appears finally to argue that the employees' interpretation of the existing contract's pro- visions "was not so unreasonable as to support a conclusion that they were determined to repudiate the contract." This argument is patently a nonsequitur. If the employees not unreasonably interpreted section 40 as giving them the right to terminate the contract under the circumstances, this would reenforce their expressed intent to repudiate the con- tract. A reading of the contract, however, does not disclose such ambiguities as might provide a "not unreasonable" belief that the contract could be terminated by the switch to Local 259. Indeed, my colleagues apparently agree that it clearly could not be so terminated, and that any such ter- mination was, in fact, unlawful. Even granting the existence of some uncertainty, therefore, the most that can be said for the employees is that they acted unlawfully in terminat- ing the contract in the mistaken belief they were acting lawfully. Whether or not we make this assumption, it seems clear that the Respondent should not have substantial penal- ties imposed upon it for defending itself against that unlawful action. If there is a lesson to be learned from collective bargaining, it is that a negotiated contract is its desired goal. That such a contract is a serious achievement and must be so treated by both sides is indispensable to successful labor relations. To allow a contract to be lightly cast aside because one party decides that by so doing it may better its position can only conduce to the destruction of the process. It is evident here that the employees had little, if any, regard for their contract. The unions involved had less. Nor did the employees or the unions consider the certification issued by this Board as anything more than a scrap of paper. If such an attitude is condoned or encouraged, much less rewarded, the whole theory and practice of collective bargaining becomes a farce. Accordingly, I believe that the discharges of the employees in this case did not constitute violations of Section 8 (a) (3) of the Act. I would therefore dismiss the complaint. "The position taken by the employees and Local 259 here, moreover, is on a parallel with that assumed by the employees in the Sands case, where the Court observed. "It is evident that the respondent realized that it had no alternative but to operate the plant in the way the men dictated, in the teeth of the agreement , or keep it closed entirely, or have a strike." PEPPER & POTTER, INC. Intermediate Report STATEMENT OF THE CASE 959 Upon charges duly filed by Boudin, Cohn & Glickstein, counsel for Ralph Diamond, Cosmo Barbieri, Elias Degestinos, Joseph Linyear, Haynes O'Neil, Nathan Sacher, John E. McCovery, Harry Timmerman, and Margaret O'Leary Landolfi,1 herein called the Complainants, the General Counsel of the National Labor Relations Board,2 by the Regional Director for the Second Region (New York, New York), issued a complaint dated February 15, 1952, against Pepper & Potter, Inc., herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the charges, complaint, and notice of hearing were duly served upon the Respondent and the Complainants. With respect to the unfair labor practices, the complaint alleged in substance that the Respondent: (1) On April 18, 1951, discriminatorily discharged Ralph Diamond, Cosmo Barbieri, Elias Degestinos, Joseph Linyear, Haynes O'Neil, Nathan Sacher, John E. McCovery, and Harry Timmerman and thereafter failed and refused to reinstate them because "they disaffiliated themselves" from Local 977, International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, UAW-CIO, herein called Local 977, and affiliated themselves with Local 259, International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, UAW-CIO, herein called Local 259, or "be- cause of a labor dispute which arose between Respondent and Local 259 over the meaning and continued existence of the collective bargaining agreement between Respondent and Local 977, or because they engaged in concerted activities on behalf of Local 259 for the purpose of collective bargaining or other mutual aid or protection"; (2) on April 19, 1951, discriminatorily discharged Margaret O'Leary Landolfi and thereafter failed and refused to reinstate her "because she sympathized with or assisted, or because Respondent be- lieved she was sympathizing with or assisting," the other Complainants "in their concerted activities on behalf of Local 259 for the purpose of collective bargaining or other mutual aid or protection"; and (3) from about April 1, 1951, to date interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, by (a) questioning its employees in regard to their membership in, sympathy for, and activities on behalf of Local 259 and/or Local 977, and (b) advising or informing employees that they were being discharged "because they disaffiliated themselves from Local 977 and affiliated themselves with Local 259, or because of a labor dispute which arose between Respondent and Local 259 over the meaning and continued existence of the collective bargaining agree- ment between Respondent and Local 977, or because they engaged in concerted activities on behalf of Local 259 for the purpose of collective bargaining or other mutual aid or pro- tection." The complaint further alleged that by the foregoing conduct the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act. Thereafter, the Respondent duly filed an answer, admitting certain allegations of the complaint but denying that it had engaged in the alleged unfair labor practices and setting forth certain affirmative defenses. Pursuant to notice, a hearing was opened on May 5, 1952, at New York, New York, before Albert P. Wheatley, the Trial Examiner duly designated by the Chief Trial Examiner, and was adjourned until June 16, 1952, with no evidence being adduced by the parties, except for the introduction into evidence of the pleadings and other formal papers . Meanwhile, due to the illness of Trial Examiner Wheatley and his inability to resume the hearing, the undersigned was designated as Trial Examiner to conduct the hearing , which resumed on June 16, 1952, at New York, New York, and ended on July 7, 1952. The General Counsel, the Respondent, and the Complainants were represented by counsel. Full opportunity to be heard, to examine and cross-examine the witnesses , and to introduce evidence bearing on the issues was afforded all parties. Upon the conclusion of the hearing, the undersigned granted a motion by the General Counsel to conform the pleadings to the proof as to dates, spelling, and minor variances and advised the parties that they might argue before and file briefs or proposed findings of fact and conclusions of law, or both, with the Trial Examiner. The General Counsel and the 1 During the course of the hearing, the pleadings were amended to set forth the correct name of Margaret O'Leary Landolfi. 2 The General Counsel and his representative at the hearing are referred to as the General Counsel The National Labor Relations Board is herein called the Board. 960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent participated in oral argument . Thereafter , the Respondent filed a brief with the undersigned. Upon the entire record in the case and from his observation of the witnesses, the under- signed makes the following FINDINGS OF FACT L THE BUSINESS OF THE RESPONDENT Pepper & Potter, Inc., a New York corporation with its principal office and place of business in New York , New York, is engaged in the purchase , sale, and distribution of new and used automobiles and automotive parts and accessories , and in the repair and servicing of automotive vehicles . The Respondent's business is operated under a franchise for the sale of Buick automobiles and automotive products , granted by the Buick Motor Division of the General Motors Corporation, Detroit, Michigan. During 1951 the Respondent purchased, transferred, and delivered to its plants automobiles, automotive parts and accessories , and other materials valued in excess of $250,000 , of which approximately 90 percent was transported to its New York plants in interstate commerce from States of the United States other than the State of New York . During the same period , the Respondent sold and distributed automobiles , automotive parts, and accessories valued in excess of $250,000, of which approximately 5 percent was transported from its New York plants in interstate commerce to States of the United States other than the State of New York. The complaint alleged, the Respondent's answer admitted, and it is found that the Respondent is engaged in commerce within the meaning of the Act. IL THE ORGANIZATIONS INVOLVED Local 259, International Union , United Automobile, Aircraft and Agricultural Implement Workers of America, UAW-CIO, and Local 977, International Union, United Automobile, Aircraft and Agricultural Implement Workers of America. UAW-CIO, are labor organiza- tions admitting employees of the Respondent to membership. III. THE UNFAIR LABOR PRACTICES A. Discriminatory discharge of Complainants Diamond, Barbieri, Degestinos, Linyear, O'Neil, Sacher, McCovery, and Timmermann; interference, restraint, and coercion 1. Sequence of events On May 18, 1950 , the Respondent and Local 977 executed a collective -bargaining contract covering the mechanics and porters of the Respondent's service shop. The effective date and term of the contract were defined in the following provision: Section 40 . Upon the execution of this agreement , the Union shall institute appropriate proceedings before the National Labor Relations Board for the certification of the Union as the sole and exchisive bargaining agency for the employees of the Company and institute and thereafter diligently prosecute such proceedings as are authorized by law to obtain the approval of the National Labor Relations Board of the execution by the parties hereto of this agreement. Upon the grant of such certification and upon the grant of such approval, this agreement shall become effective and binding upon the parties. This agreement shall thereafter endure for a period of one year but shall renew itself automatically from year to year unless either party shall give 10 days written notice by registered mail of its intention to interrupt renewal hereof. Notwithstanding the fore- going provision or any other provision hereof, this agreement shall terminate and cease to exist upon any of the following events , namely: (a) If the Local referred to herein as the Union shall disaffiliate itself from the C. LO. (b) If such Local shall cease to be duly accredited by the C.LO. (c) If such Local shall be or become merged, amalgamated, consolidated with or otherwise absorbs or is absorbed by any other Local of the C.LO. The contract also contained the following union-shop provisions: PEPPER & POTTER, INC. 961 Section 4. Subject to the approval of the National Labor Relations Board and the certification of the Union as the duly authorized representative of the Company's em- ployees, and the grant of the requisite authority therefor under existing law, it shall be a continuing condition of employment with the Company that all employees covered by this agreement shall be and remain good-standing members of the Union. Present em- ployees of the Company, excepting those who have not completed their trial period, who are not members of the Union shall be required to become union members within 10 days from the date of this agreement. There shall be a probationary employment period of two weeks for new employees, at the end of which, if the employee is retained by the Company, he shall be required to become a union member. This shall apply to present employees who have not completed their probationary period as well as to new employees . The Union shall accept into membership all present employees covered by this agreement, and all new employees who have passed their probationary period of employment, provided any such new employees have not been expelled by any Local Union of this International for cause.3 The agreement further provided that "all disputes , complaints or grievances shall be settled expeditiously without strike, stoppage or lockout," required the Respondent to "deduct from the first pay of each employee in each month, the requisite monthly dues and initiation fees, during the life of this contract and pay the same over to the Union" with the assurance that "the Union expressly represents that such deductions are authorized by each employee," and contained the following provisions for contribution to a welfare fund The Company shall pay the sum of $ 8 per month for each of its employees now em- ployed and hereafter to be employed by the Company, who are covered by the terms of this contract to a fund to be designated by the Union and known as Local 977, United Auto Workers, C.LO., Welfare Fund, as of the first pay period ensuing after the ef- fective date of this agreement, which sum shall be used for the establishment and maintenance of a group insurance fund to provide the benefits set forth in Exhibit A attached hereto and to pay such administrative expenses of the maintenance of said fund as may be required or necessary... . Following the conduct of a consent election in Case No. 2-RC-2378, won by the Union, it was certified on August 8, 1950, as the statutory representative of the Respondent's employees at its service department, excluding inventory -control employees , office and clerical employees, manager of the parts department , guards, watchmen , and professional and supervisory employees as defined in the Act. After the Union won another consent election in Case No. 2-UA-5884, it received on September 20, 1950, a certification author- izing it to negotiate a union-security provision in its contract with the Respondent, and at this point it appears that the contract between the Respondent and Local 977 became fully effective. During the winter of 1950, the Respondent's employees became dissatisfied with their wage rates , based upon an incentive plan, ,and with working conditions. In late January or early February 1951, employee Ralph Diamond, who was the shop steward for the Respondent's employees, and Samuel Meyers, a representative for Local 259, met at a membership meeting of Local 977 and the following occurred, according to the credible testimony of Meyers: After the meeting was over, Mr. Ralph Diamond approached me, told me that he was the shop steward of Pepper and Potter and wanted to know what chances there were in having Pepper and Potter come into the union, our union [Local 259] . . . . I told hun that the chances were very good that they could come into the union providing the men wanted to come in. I told him to. go back and talk to the boys and let me know how the fellows felt about it . . . he said there was a general dissatisfaction with 977, the union that he was in, that they hadn't seen a contract, they didn't know some of the things that they were entitled to get. They were being called upon to do things that normally he heard people in other unions shops don't do and generally the wage structure was much lower than the rest of the Buick shops in Brooklyn. 3 The General Counsel does not attack the legality of the contract between the Respondent and Local 977, except to note that the above-quoted union-security provisions exceeded the limits permitted by Section 8 (a) (3) of the Act and therefore could not be utilized to sustain the legality of the discharge of employees for nonmembership in Local 977. 962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With the approval of officials of both Local 977 and Local 259, Meyers held three meetings with the Respondent' s employees in March 1951 . The first meeting was in early March and was also attended by James Edwards , a representative of Local 977. At this meeting, ac- cording to Meyers , they "had a general discussion with the fellows about conditions that exist in Brooklyn shops of Buick and how joining 259 would definitely help them toward getting some of the better things that the other Buick dealers were giving their people through our union . We also discussed the constitutional procedure in which these people would disaffiliate from Local 977 and affiliate with 259." In mid-March, at the second meeting, they determined , in compliance with the constitution of the UAW-CIO, that at the following meeting they would vote on changing their affiliation from Local 977 to Local 259. The third meeting was on March 21, 1951 , and was attended by all employees of the Respondent covered by its contract with Local 977 and also by Meyers and Cosmo Grieco, president of Local 977. Grieco addressed the employees as follows , as shown by Meyers' credible testimony: . .. he spoke shortly about the fact that he was new in Local 977, the old leadership had been removed , that he had come to discuss the problem of affiliation with us, with Local 259, he said that he took his hat off to no other union, that he felt proud of the union and he knew he was going to do a good job in that union except , he said that we represented that portion of the trade that Pepper and Potter was in, namely, the service stations. . . He said his union was primarily a car wash and garage union and therefore could not service people as well as 259 could nor understand their problems as well. The result of the poll of the Respondent's employees by secret ballot on the question of changing their affiliation from Local 977 to Local 259 revealed that 8 were in favor and 1 was opposed to shifting from Local 977 to Local 259. Although one of the employees informed the Respondent of the outcome of the foregoing March meetings , the first official notice given the Respondent by Local 259 of the change in the affiliation of the Respondent's employees was on April 12, 1951, when Diamond and Meyers met with Frank Pepper , who was president of the Respondent . Meyers informed Pepper that Meyers " represented the employees , that they had switched affiliation from 977 to 259 and that we were interested in recognition ." Meyers also stated that he believed that the Respondent' s contract with Local 977 was terminated by reason of the change in affiliation viewed in the light of the provisions of section 40 of the contract , set forth above, and said that "he was there to talk about a new contract." Pepper telephoned Hyman Fisch- bach , counsel for the Respondent , and informed him of Meyers' statements ; and arrange- ments were made for a conference between representatives of the Respondent and Local 259 on April 17 , 1951 , at Fischbach' s office. Meyers and Diamond also presented to Pepper a grievance or claim of employee Nathan Sacher in respect to " sick pay" due him as a result of his absence from work because of illness . According to the undenied and credible testimony of President Pepper , he replied that the Respondent "had been paying benefits to the union and that . . . this sick money should come from there," apparently referring to the provisions of the Respondent's con- tract with Local 977 whereby the Respondent was required to pay monthly contributions to-a welfare fund . Meyers and Diamond testified without contradiction that Pepper instructed Diamond to discuss the matter with Joseph Youngman , manager of the service shop, when Diamond returned to work. Later in the afternoon, Diamond conferred with Youngmah and the latter rejected Sacher ' s claim for sick pay. The same afternoon, Diamond informed the other employees of the decision on Sacher's grievance and they decided that in retaliation they would refuse to jockey cars , that is, to move cars from storage space to the service line in the shop and from point to point on the service line. All employees except James Blue and Haynes O'Neil refused to jockey cars the remainder of the day and a portion of the following morning until they were instructed by Representative Meyers to perform such tasks when he was informed , on April 13, of the action they had taken.4 None of the employees was reprimanded or disciplined for refusing to jockey cars. 4 Leo Pepper , who at the time in question was assistant service manager , testified that all employees but Blue and possibly O'Neil , who worked a portion of the time at the salesroom, refused to jockey cars . Joseph Linyear , a porter , denied that he engaged in the partial work stoppage, and his testimony was in part corroborated by that of Diamond and Sacher. Upon the entire record and the undersigned's impression of the witnesses , including the fact that PEPPER& POTTER, INC. 963 On April 16, 1951 , the Respondent received the following letter from the president of Local 259: As you have already been informed , your employees have joined Amalgamated Local 259, UAW-CIO. We are therefore requesting that we meet to negotiate an Agreement, at your earliest possible convenience. Pursuant to the arrangements made on April 12, 1951, representatives of Local 259 and the Respondent met in the offices of the latter ' s counsel , Hyman Fischbach . Meyers and Diamond were present in behalf of Local 259 and President Pepper, Secretary-Treasurer Lester Potter, and Fischback represented the Respondent . It is found that the following occurred at the conference , as shown by the credible testimony of Fischbach: I asked Mr. Meyers who he represented and he advised me that he represented Local 259 and when I asked him in what capacity he represented that labor organization, he stated that he was their organizer. I asked Mr. Diamond in what capacity he was present and he stated he was present as the shop steward and the representative of the employees . The meeting proceeded with a discussion of the contract which is in evidence here . Mr. Meyers stated that he was in possession of the contract that Pepper and Potter had made with Local [977] I asked him to produce the contract . He did. I inspected it and handed it back to him. Mr . Meyers then stated that he was of the view and that his organization had taken the position that the contract was at an end and I asked him at that point on what basis he took that stand... . Mr. Meyers pointed to the provisions of Section 40 of the contract which is General Counsel' s Exhibit 3 which provided that the agreement should endure from year to year unless either side gave written notice , but that notwithstanding , it should terminate if either one of three conditions therein enumerated happened. He said the basis upon which Local 259 contended that the contract was no longer in effect was that Local 977 had become merged, amalgamated , consolidated with or was otherwise absorbed with any other local . I pointed out to Mr . Meyers that I did not agree with that view , that it was my understanding , from information which had been transmitted to us, by one of our employees , Mr. Blue, that the men who worked for us had with the exception of Mr . Blue, disafiliated themselves from Local 977 and had joined Local 259, but that as far as we were concerned , the contract was effective and would continue to be in effect. At that point Mr . Meyers proceeded to say that he felt we should make a new contract with Local 259 forthwith . I told him we would not make any new contract with Local 259 and that as far as I could see , all we had was Meyers assertion that the contract was at an end, whereas we contended that the contract was not at an end but was in full effect. I asked Meyers frankly to tell me whether Local 977 had gone out of business and he said no, it hadn't gone out of business , but that the shift of Pepper and Potter from Local 977 to Local 259 had been agreed upon by the International Union and that he was there with the blessing of the International Union. At that point Mr. Meyers proceeded to tellme that the contract with Local 977 wouldn't be lived up to by the men and I asked them to state why. He told me that the men were dissatisfied . I turned to Mr. Diamond and asked him whether it was true that the men were dissatisfied . Meyers thereupon advised Mr. Diamond not to answer my question . I took exception to that telling Mr. Meyers that I thought as long as Diamond was the representative of the employees and the men were under contract with us, if they had any grievance , it was his place and his obligation to state it fully and frankly, right then and there. Meyers then said to Diamond , well, you can tell him about the conditions in the shop. So Diamond proceeded to tell me that the men were dissatisfied because they weren't getting as much pay as were other shops In Brooklyn and he specifically mentioned the fact - that the employees in Haber Brothers who worked just in the floor above in the same building , where Pepper and Potter had their service station , were getting more Sacher's testimony that all porters continued to jockey cars was in conflict with the contrary admission of John McCovery and that Diamond and Linyear were not particularly impressive witnesses , the undersigned credits the testimony of Pepper in this regard. 964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD money and he particularly mentioned the fact that the men were dissatisfied with having to jockey cars about. I asked him what he meant by that. He explained that car jockeying was a term that was applied to moving the cars in and around the service station, the showroom, the parking lot and the warehouse. I asked Mr. Diamond if he had ever raised any of these grievances with anybody in the shop, particularly asked him if he mentioned them to Mr. Youngman. He said he hadn't. Then the question of pay was discussed. And I asked Mr. Diamond whether the pay was that much out of line with other shops as to warrant a refusal to continue to work under the contract. He said well, Mr. Fischbach, we have never been able to find out about the contract There has been some skullduggery going on in the union. He said as a matter of fact all of the officers of the union were replaced and he said we want to get out of that union and that is why we are here We want a new agreement. I told Meyers at that point that I would appreciate it very much if he would advise me, in detail, as to what he wanted in the way of a new agreement, what terms and conditions he desired. He said in the first place, he wanted us to get into line, and that is an expression that he used and I want the record to reflect that I am using it mentally with quotes around it He pointed out that our contract with Local 977 was sub-standard and the standard to which he pointed when I made inquiry was that standard which had been established with such shops as Smith and McKiefer, McCarthy-Bern- hardt, Midcounty, and Kaplan and Black, et cetera, those being names which he furnished me. I asked Mr. Meyers what the relations were between Local 259 and these various organizations. He gave me the name of an individual in each stating that I was free to telephone that individual and make inquiry and he expressed the opinion that if I did, I would learn that the relations with the organization were very good. I asked Mr. Meyers to state who it was in the International who had given him the green light that he mentioned with relation to the transfer of Pepper and Potter from 977 to 259 and he furnished that name, stating it was Charles Carrigan He gave me his telephone number too. He stated Mr. Carrigan was the director of the United Auto- mobile Workers in this area. I asked Mr. Meyers to furnish me with the names of the individuals who were officers of the local that he represented including the names of the individuals who were trustees and he furnished those and I recorded them We discussed the status of Local 259 and we also discussed the fact that Local 977 was then certificated under an election by the National Labor Relations Board as the authorized union. I pointed out that the only thing that I had from my clients was this document which was received in evidence here as General Counsel's Exhibit No. 4. Mr. Meyers stated that there would be no difficulty about getting some affirmative evidence as to the willingness of Local 977 to proceed with the complete transfer of Pepper and Potter from that local to Local 259. I invited him to procure such a com- munication and I subsequently received such a communication which is General Counsel's Exhibit No. 5. I dare say that the period of time spent in the discussion with Mr. Meyers and Mr. Diamond, and my clients were present, was from three to shortly before six o'clock that afternoon. My diary entry indicates that the meeting started at three o'clock and ended at six. I base my testimony as to the duration of the meeting upon the practice that I normally follow of indicating the period in my diary of the duration of such a conference. It is my testimony that when the meeting concluded Mr. Meyers left with the firmest statement from me to the effect that my client, Pepper and Potter, would not agree to a termination of our contract with Local 977 and I, on the other hand, had from both Mr. Meyers and Mr. Diamond, equally strong assurances that the contract was at an end and that the men would not work under it.5 5 Fischback's testimony was in nearly all material respects corroborated by that of Frank Pepper and Lester Potter. Meyers' version of the conference, although not so detailed as that of Fischback, was reconcilable with that of Fischback. Meyers denied that there was any discussion of a strike or refusal to work at the meeting and testified that no decision was reached but that the meeting ended "with the thing open. There was no closed doors or anything. The thing was left open to the extent where I would get in touch with him or he would get in touch with me about subsequent meetings." However, he testified that he had no doubt when the meeting concluded that Fischback differed with Meyers' position that the contract between the Respondent and Local 977 had terminated because of the employees' desertion PEPPER& POTTER, INC, 965 In response to the Respondent's request of Meyers that Local 977 furnish the Respondent with an immediate expression of Local 977's views on the shift of the employees' affiliation to Local 259, the president of Local 977 sent the following letter to the Respondent by special messenger on April 18, 195L This letter is to inform you that LOCAL 977-UAW-CIO no longer represents the members working in your plant. They are now affiliated with LOCAL 259-UAW-CIO. On April 18, 1951. Service Shop Manager Youngman asked employee Diamond whether the latter had "a union card for 259 ." Diamond replied that he did not possess such a card. On the same day, Youngman asked employees Sacher and O'Neil to show Youngman their union cards and they produced their cards for Local 977. About 4 45 p. in. on April 18, 1951 , all employees but Blue6 and Timmermann were assembled in the office of the service station, where President Pepper , Secretary-Treasurer Potter, and Fischbach were present. According to the credible testimony of Fischbach the following occurred: When the men entered, I asked them to each identify themselves by name and the following names were given me and I recorded them on this sheet of yellow paper: Ralph Diamond , shop steward , Cosmo Barbieri , Haynes O'Neil, Nathan Sacher , Joseph Linyear , John Edward [McCovery], Elias Degestinos . I have recorded as missing Mr. Timmermann. At that point having noted the presence of all of the employees and noted the absence of Mr. Timmermann , I addressed myself to the men and told them that there had been a meeting at my office on the preceding day, that the meeting had been attended by Mr. Meyers and had also been attended by Mr . Diamond . I told them that I wanted personal verification from each of the men with respect to their knowledge and their authority to Mr. Meyers and to Mr Diamond to make the demands which were made the previous day. I told them briefly what the demands were. I also asked them each to verify to me whether it was true that they had agreed not to work under the Local 977 contract . I told them distinctly , and you can quote this because these are the words that I did use. I said "I don't care whether you are Masons today, Elks tomorrow and Odd Fellows on the third . All we are interested in is your continuing to work under the contract . We have a contract with 977. It was twice the subject of proceedings before the National Labor Relations Board." of Local 977 and affiliation with Local 259. Meyers and Diamond testified that Fischback inquired whether the change in the employees ' affiliation had been "generated or spontaneous" and stated that if it were not spontaneous , he would give them the "whammy " Diamond's testimony as to the conference was somewhat vague, if not evasive, particularly on cross- examination . He denied that Meyers stated the purpose of the meeting and did not "think Mr. Meyers said anything about wanting a new contract." Diamond was unable to remember that Fischbach asked him the reason he never talked to Service Shop Manager Youngman or officials of the Respondent about grievances or that Meyers said anything about an in- crease in pay for the employees . Diamond denied that he told Fischbach that the employees desired a higher wage scale and that either he or Meyers stated that the employees would refuse to work if they failed to obtain a new contract . Upon the entire record and the under- signed's observation of the demeanor of the witnesses as they testified , the undersigned is convinced that Fischbach' s testimonial version of the conference on April 17 is more accurate and complete than that of Meyers or Diamond For this reason , as well as the fact that Fischbach's testimony was in large measure supported by that of Frank Pepper and Lester Potter , that Fischbach appeared to be a reliable and sincere witness with a clear recollection of the occurrences at the conference , that Diamond was not an impressive wit- ness , and that Meyers' evasiveness at times on cross-examination gave the impression that he was not being completely candid, the undersigned credits Fischbach 's testimony as to the discussion on April 17 between representatives of the Respondent and Local 259 and rejects the testimony of Diamond and Meyers to the extent that it was not in accord with the credited testimony. 6 Blue was the employee , referred to above, who informed the Respondent of the outcome of the March meetings of the employees and their decision to withdraw from Local 977 and affiliate with Local 259. Blue was the only employee in the unit who opposed the shift to Local 259. 283230 0 - 54 - 62 966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I said, "I want personal verification from each of you as to whether you authorized Mr. Meyers and Mr. Diamond to make the demands which they did make;" and when they indicated that they did, I said, "Under the circumstances, we have no alternative but to discharge you right here and now." I said what is the position of Mr. Timmermann& Did he vote with you to go along on this deal? Mr. Diamond specifically said that Timmermann had voted just like the rest of them had. The only one who hadn't was Jimmy Blue, and so they were fired. As one of the steps in preparation for that meeting, I had requested Miss Claire Samuels, who is the bookkepper working for Pepper and Potter, to prepare the payroll checks and they were there in the office and they were immediately distributed to each of the men. . . . I made inquiry of the men as to what disposition should be made of Mr. Timmermann's check, and it is my recollection that both Mr. Diamond and Mr. Barbieri offered to see to it that the check would reach Mr. Timmerman? However, that procedure was not adopted. It was kept for him at the office 8 7 Counsel stipulated that although Timmermann was not present on April 18 and was not discharged until the following day, "the reason for his discharge was the same reason as that for the other seven" or as stated in another form by the General Counsel, "Mr. Fischbach and I agree that Mr. Timmermann is in the same legal boat or position as the other seven alleged discrimmatees." Accordingly, the conclusions hereinafter reached as to the discharge of Diamond, Barbieri, Degestinos, Linyear, O'Neil, Sacher, and McCovery are equally applicable to the discharge of Timmermann. 8 Fischbach's testimony in respect to the discharge of the employees on April 18, 1951, was in large measure corroborated by that of Frank Pepper and Lester Potter. Diamond testified that Fischbach asked the names of the employees when they were assembled and inquired whether they had cards for Local 259, that Diamond replied "it was in the process of being taken care of,,, that Fischbach stated that he had a letter from Local 977 "saying that you are no longer affiliated with them," and that the interview concluded by Fischbach's saying, "You men have taken it upon yourselves to affiliate with one union and disaffiliate from another union. This company has no further use for your services." Diamond denied that the Respondent's contract with Local 977 was mentioned at this meeting, that Fischbach referred to the conference held the day before in his office, and that the employees stated that they would strike if they did not obtain a new contract or would refuse to work under the contract between the Respondent ana Local 977. Diamond's testimony was corroborated by employees Sacher, O'Neil, Linyear, and McCovery and also by Landolfi who was working in the office at the time of the meeting. Sacher, Linyear, and Landolfi testified that the only reference to Timmermann was a statement, when his name was called, that he was absent because of illness. Landolfi recalled that Barbieri offered to take Timmerman his paycheck. O'Neil did not recall that Fischbach asked the employees whether they had discussed working conditions with Meyers and Diamond or whether the employees had authorized Diamond to speak for them. McCovery denied that there was any discussion as to whether Diamond was authorized to speak for the employees, Diamond had conferred with Fischbach the preceding day, or Diamond was authorized to make demands for a new contract. Cosmo Grieco, president of Local 977, testified that after the employees were discharged , he tele- phoned Fischbach and the latter "said under the terms of the agreement ... there is a clause which states when a union notified management that the employee is no longer in good standing or we don't represent them or so on and so forth, for that reason , they are obligated to discharge them." Although Fischbach did not testify as to this telephone conversation, President Pepper testified that after the employees were discharged, "Mr. Fischbach called Mr. Grieco on the phone as a matter of fact. We asked for a new man and he refused to send us any. We told them the men were laid off. They refused to work under the contract. This was the very night. He would have nothing to do with us. We asked for the new men the following morning." It was Meyers' testimony that after the employees were discharged, he telephoned Fischbach on April 18, asked Fischbach the reason for the discharges, and Fischbach replied that the employees "were no longer members of 977, he had an agreement with 977 and since they were no longer members of 977 in good standing he had a right to discharge them and he did so." Fischbach did not testify as to this telephone conversation. Upon the entire record and the undersigned's impression of the witnesses, the undersigned credits the testimonial version of Fischbach as to the meeting on April 18 and of Pepper as to the telephone conversation with Grieco and rejects the testimony of the General Counsel's witnesses except to the extent that it was in accord with the credited testimony . In addition to the evaluations heretofore made as to the reliability of Fischbach's testimonial version PEPPER& POTTER, INC, 967 Fischbach further testified that the ultimate decision to discharge the employees was made on April 18, "when they told me in the shop that the demands that Mr . Meyers and Mr. Diamond had made had been authorized and that they would not work under 977." He also testified that if the employees had answered his questions in the negative , they "would not have been discharged , but Mr. Diamond would have been discharged." 2. Conclusions The foregoing findings of fact give rise , and the contentions of counsel resolve, to two principal issues- -namely , (a) whether the foregoing activities of the employees were pro- tected concerted activities within the meaning ofSection 7 of the Act , affording the Respondent no justification for the discharge of the employees , 9 and (b) whether the discharge of the employees was warranted because they breached or effectively repudiated the contract between Local 977 and the Respondent. a. Whether the employees engaged in protected concerted activities In respect to the issue of whether the employees ' activities set forth above were within the protection of the Act, the Respondent points to the fact that the activities occurred well before the end of the year of Local 977's certification , to the limitaton of 1 election each 12-month period contained in Section 9 (c) (3) of the Act, and to the principles established by the Board and the courts , in cases involving allegations of refusal by an employer to of the conference on April 17 , the basis for the foregoing resolution of the conflicts in testi- mony is as follows : (1) As mentioned above, Diamond did not impress the undersigned as a completely reliable witness and his demeanor on the stand, as well as that of corroborating witnesses O'Neil and Linyear , gave the undersigned cause to be dubious as to the trust- worthiness of their testimony . (2) Pepper and Potter appeared to be candid witnesses , freely testifying even though called as adverse witnesses by the General Counsel under rule 43B of the Federal Rules of Procedure. (3) Moreover , Fischbach was so sincere and impressive as a witness that the undersigned has complete confidence in the integrity of Fischbach ' s testi- mony. (4) Furthermore, in the opinion of the undersigned , the fact that the employees' dues for Local 977 were deducted from their final pay, in accordance with the terms of the contract, lends support , in the opinion of the undersigned , to the testimonial version of Fischbach as to the discharge of the employees , since it appears unlikely that the Respondent would continue to deduct the dues and to make its contributions to the welfare fund if the reason for the discharge of the employees was based, as they testified , solely upon their abandonment of their membership in Local 977. In reaching these conclusions as to the resolutions of the conflicts in testimony , the undersigned has considered the fact, stressed by the General Counsel , that subsequent to the conference in Fischbach' s office on April 17 but prior to the discharge of the employees on April 18, President Pepper had conferred with representatives of Local 71, International Jewelry Workers Union, AFL, to ascertain whether that organization could supply the Respondent with replacements if necessary in the future, and that on April 19, the Respondent employed replacements furnished by that organi- zation. In the opinion of the undersigned , these circumstances do not in themselves establish the accuracy of the testimony of the employees or that the Respondent had determined prior to April 18 to discharge the employees because of their shift from Local 977 to Local 259. President Pepper's inquiries as to the possibilities of obtaining replacements were not incompatible with the course of events on April 18 or with Fischbach's contemplated plan. In this regard, he testified that had the employees answered his questions in the negative, they would not have been discharged . Considering the course of events occurring prior to April 18, it would not be unreasonable for the Respondent to consider the possibility that the employees would make the affirmative responses they did to Fischbach ' s questions , thereby making their replacement necessary from the Respondent' s point of view under its contemplated plan. Accordingly , considering the record as a whole, Pepper's inquiries as to replacements prior to the discharge of the employees are not irreconcilable but are consonant with the course of events which has been found to have occurred on April 18. 9 It is clear and counsel apparently agree that the employees ' shift from Local 977 to Local 259 midway during the first year of Local 977's certification did not, in view of the limitation contained in Section 9 (c) (3) of 1 election in a bargaining unit each 12 months , give rise to a question concerning representation under Section 9 ' of the Act . It is likewise clear that the purpose of the employees' change in affiliation was such as not to make the Board's schism doctrine applicable. See Sagninaw Furniture Shops, 97 NLRB 1488. 968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargain with the statutory representative of his employees or in suits for breach of a col- lective-bargaining contract , to the effect that, absent unusual circumstances, an employer is obliged to bargain solely with the statutory representative chosen by his employees during the certification year despite any defection in the representative's majority status which may have ensued during the certification year . >;0 From these principles , the Re- spondent argues that " both parties to this contract , [between the Respondent and Local 9771 were prohibited from taking any actions in derogation of the union's certification within that period," that the employees " engaged in activities which were designed to subvert the basic provisions and tenets of the National Labor Relations Act," and that "the Board is estopped from claiming the discharge of such employees was an unfair labor practice." In sum, the Respondent urges that the employees ' activities were not within the protection of the Act. The General Counsel, on the other hand, contends that the employees engaged in concerted activities protected by the Act. The issues posed by the instant proceeding are novel and an examination of decisions of the Board since the 1947 amendments to the Act has elicited no indication as to the deter- mination of the policymaking questions posed by the circumstances of this case. Although the matter is not free from doubt , the undersigned is not persuaded the "basic provisions and tenets" of the Act relied upon by the Respondent are conrolling upon the determina tion of whether the employees engaged in concerted activities protected by the Act. These principles urged by the Respondent are pertinent in situations involving a refusal to bargain with the statutory representative or suits for violation of a collective-bargaining contract but do not, in themselves , determine whether the action of the employees herein constituted unprotected concerted activities . That is, such principles established that the Respondent was under no obligation to grant Local 259 recognition or bargain with it in view of the outstanding certification of Local 977 and the unexpired contract between Local 977 and the Respondent, but the undersigned is unable to conclude that by these same tenets the em- ployees' activities in affiliating with Local 259 and requesting that the Respondent recognize Local 259 and bargain with that organization were unprotected activities justifying their discharge by the Respondent, in view of the legislative history of the Act. Thus, the bill as reported in the Senate contained in Section 8 (a) (3) the following proviso: "Provided further , That no employer shall justify any discrimination against an employee for nonmembership in a labor organization . . . (C) if he has reasonable grounds for be- lieving that membership was denied or terminated because of activity designed to secure a determination pursuant to section 9 (c) (1) (A), at a time when a question concerning representation may appropriately be raised." Section 8 (b) (2) of the same bill made it an unfair labor practice for a labor organization "to persuade or attempt to persuade an employer to discriminate against an employee with respect to whom membership in such organization has been denied or terminated . . . because he engaged in activity designed to secure a determination pursuant to section 9 (c) (1) (A) at a time when a question con- cerning representation may appropriately be raised." 11 These provisions were embraced in the bill passed by the Senate, 12 The report of the Joint Study Committee on Labor Relations 13 stated that the purpose of the foregoing provisions was as follows: Discrimination is permitted only if [an employee] has failed to tender dues and in- itiation fees or has engaged in "dual union" activity or activity designed to oust the incumbent union as exclusive representative, at an inappropriate time. The purpose of this latter provision is to insure greater stability to the contractual relations be- tween unions and employers and to prevent dissident groups of employees from under- mining the contractual relations between the employer and the union , but at the same time to insure freedom of choice to employees. The clause "at a time when a question concerning representation may appropriately be raised ," is intended to describe that period, normally near the end of the contract term, during which the employees are free to exercise the right to change representatives . It would not encourage stability in labor relations if employees could engage with impunity in rival -union activities 10 In this regard, the Respondent cites Pepper and Potter . Inc. v. Local 977, United Auto Workers, CIO, et al., 103 F. Supp. 684 (S . D. N. Y., 1952); N. L. R. B. v. Century Oxford Manufacturing Corporation, 140 F. 2d 541 (C. A. 2); Medo Photo Supply Corporation v. N. L. R. B., 321 U. S. 678. u S. 1126, 80th Congress 1st Session. iY H. R. 3020 , 80th Congress 1st Session. 13 Senate Report No. 105 on S. 1126, p. 21. PEPPER & RITTER, INC. 969 from the very inception of the contract. The Board's present policy, an enunciated in the Rutland Court case (44 N. L. R. B. 587. 46 N. L. R. B. 1040) and other cases applying that principle, is thus enacted into law. Moreover , this principle is extended to protect activity designed to oust the incumbent union and restore a condition of individual bargaining , in conformity with the right granted employees in Section 9 (c) (1) to petition for a determination that "the bargaining representative is no longer a representative as defined in Section 9 (a)," i.e., has lost its exclusive representative status. Had the above provisos been retained in the Act as ultimately enacted by the Congress, the Respondent's argument that the employees' activities were not within the protection of the Act would have been considerably enhanced. However , the above-quoted provisos to Section 8 (a) (3) and 8 (b) (2) were deleted from the Act . In respect to such deletion, the House Conference Report a stated: A provision which was contained in the Senate amendment in section 8 (b) (2), designed to prevent an employer from discriminating against an employee covered by a union shop agreement, who had been expelled from the union for activities in behalf of another representative, is omitted as unnecessary since there is nothing in the conference agreement which permits an employer to discriminate against an employee who has been expelled for this reason. Regarding this deletion, Senator Murray made the following observation in debate ; "Under subsection (C) formerly in the bill, dual union activity was confined to the period at the close of the contract period; it is now protected at all times." 15 The foregoing summary of the legislative history pertaining to the elimination of the proviso relating to dual union activities from Section 8 (a) (3) of the Act leads to the con- clusion that the employees' change in affiliation from Local 977 to Local 259 several months prior to the end of the certification year of Local 977--a time which would have been "in- appropriate" under the Rutland Court doctrine--and their attempts to secure from the Respondent recognition of Local 259 as their statutory representative, including the request that the Respondent negotiate a new contract with Local 259 despite the fact that the term of the contract between the Respondent and Local 977 had several months to run, were protected concetted activities under the Act. This conclusion is further supported by the congressional intent evidenced in debate as to the following provision contained in Section 8 (d) of the Act, wherein the duty to bargain collectively is defined: " ...and the duties so imposed shall not be construed as requiring either party to discuss or agree to any modification of the terms and conditions contained in a contract for a fixed period , if such modification is to become effective before such terms' and conditions can be reopened under the provisions of the contract." In respect to this portion of the section, Senator Taft made the following observations in an analysis of the Act printed in the Congressional Record:16 Section 8 (d): The amendment to this subsection providing that the duty to bargain) collectively should not be construed as requiring either party to discuss or agree to any modification of the terms of a contract if such modification is to become effective before the contract may be reopened has been construed on the floor to mean "parties will be bound by contract without an opportunity for further collective bargaining." The provision has no such effect. It merely provides that either party to a contract may refuse to change its terms or discuss such a change to take effect during the life thereof without being guilty of an unfair labor practice . Parties may meet and discuss the meaning of the terms of their contract and may agree to modifications on change of circumstances , but it is not mandatory that they do so . [ Emphasis sup- plied.] In the opinion of the undersigned, the above-quoted section of the Act and Senator Taft's observation thereon are directly applicable to the circumstances of the instant case and further demonstrate that the employees ' actions were within the protection of the Act. The employees herein, being dissatisfied with Local 977 and its contract with the Respondent, l4House Conference Report No . 510, on H. R 3020, p. 44. 1693 Cong. Rec. 6657. 1693 Cong. Rec. 7002. 970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD changed their affiliation to Local 259 , and believing that such change in affiliation met one of the requiremens for the termination of Local 977's contract as set forth therein, they so advised the Respondent of their interpretation of the contract and requested that the Respondent recognize Local 259 as the collective-bargaining representative of its employees and negotiate a new agreement with that organization . It is clear that such re- quests were not unlawful, even though the employees may have misinterpreted the pro- visions of Local 977's contract as to its term, so as to make the mere request for the Respondent's recognition of and negotiation with Local 259 unprotected doncerted activity. The congressional intent as revealed by Senator Taft's statement indicates that requests for modification of contracts in midterm are protected activities, inasmuch as "parties may meet and discuss the meaning of the terms of their contract and may agree to modi- fications on change of circumstances, but it is not mandatory that they do so." It is ac- cordingly found that the employees' shift in affiliation to Local 259 and attempts to secure recognition by the Respondent of that organization as their statutory representative and the negotiation of a contract between the Respondent and Local 259, despite the outstanding certification of Local 977 and the latter's unexpired contract, were not activities beyond the protection of the Act. The employees were privileged to take such action and make such requests, although the Respondent was under no duty to accede to their requests but could lawfully, as it did , insist upon the continuation of the contract of Local 977 for its term and refuse to recognize Local 259 or to bargain for a new contract with that organization These conclusions negate the Respondent's further contention, in connection with its argument as to the unprotected nature of the employees' activities , that the Board, "having certified Local 977 as the bargaining representative of the Employees," is now estopped from "accusing Respondent of unfair labor practices because Respondent is carrying out the mandate of the Board " Again, the issue is the distinction between principles governing refusal-to-bargain situations or suits for contract violation and those concerned with dis- crimination in regard to hire and tenure of employment because of employee participation in protected concerted activities. The finding that the Respondent violated the Act by dis- charging the Complainants because of their protected concerted activities would not vitiate the contract between the Respondent and Local 977 if the agreement were still in effect. The principles relied upon by the Respondent without question support the action taken by the Respondent in refusing the employees ' requests that it recognize and bargain with Local 259 as their statutory representative and in insisting that Local 977's contract be continued for its term, but they do not, as stated above, establish in themselves that the Respondent was privileged lawfully to discharge its employees beacuse of these activities which have been found to be protected concerted activities under the Act or that the Board is estopped from pursuing the present proceeding. 17 In view of the foregoing and the entire record , the undersigned concludes that the activities of the Respondent's employees in respect to their change in affiliation from Local 977 to Local 259 and their ensuing requests and negotiations with the Respondent were protected concerted activities within the meaning of the Act and accordingly afforded the Respondent no justification to discharge them on April 18, 1951 b. Whether the employees breached or repudiated the contract between the Respondent and Local 977 In its brief, the Respondent contends that the employees breached the contract between Local 977 and the Respondent in several ways. Initially, the Respondent argues that the employees' withdrawal from Local 977 and affiliation with Local 259 was in contravention of the union-security provision of the contract, requiring "as a continuing condition of employment with the Company that all employees covered by this agreement shall be and remain good-standing members of" Local 977. However, as noted above, the union-security provisions of the contract were illegal, since they required new employees to become members of Local 977 at the conclusion of their 2- week period of probation and thereby exceeded the limited form of union security permitted by Section 8 (a) (3) of the Act. Ac- 17 It might be noted that in comparable situations where there has been a shift in the mem- bership of employees from the certified local to another local within the same international union , the Board had, upon request , amended the certification so as to set forth the name of the latter local as the statutory representative. See Loblaw , Inc., 99 NLRB No. 149 ; United States Plywood Corporation (South Carolina), 98 NLRB 1330; Bushnell Steel Company, 96 NLRB 218, Cadillac Automobile Company of Boston , 90 NLRB 460 ; Missouri Service Company, 87 NLRB 1142. PEPPER & POTTER, INC. 971 cordingly, the illegal union-security provisions of the contract and the employees' alleged breach thereof cannot serve the Respondent as a justificaton for its discharge of the em- ployees. to Secondly, the Respondent points to the partial work stoppage which occurred during the afternoon of April 12 and the morning of April 13, when some of the employees refused to jockey cars. as a breach of the contract's provisions forbidding strikes and setting forth procedures to be followed in the handling of grievances. Although the refusal of some of the employees to perform their customary duties was violative of these provisions of the contract and subjected them to the possibility of discharge, the Respondent failed to take action against them or even reprimand them at the time in question and must be held to have waived or condoned such conduct. Hence, the Respondent cannot rely upon the partial work stoppage of the employees on April 12 and 13 as a justification for their subsequent discharge some 5 days later-19 The Respondent finally contends that the employees renounced their contract as shown by the statements of their representatives at the conference with the Respondent on April 17 and their statements when they were interviewed by the Respondent's counsel on April 18, considered in the light of their change in affiliation from Local 977 to Local 259 and the work stoppage occurring on April 12 and 13. In other words, the question posed by this contention of the Respondent is whether the discharges of the employees were within the scope of the doctrine of the Sands case, 20 i.e., whether the employees were "so irrevocably committed not to work in accordance with" the contract between Local 977 and the Respondent that they fell within the rule of the Sands decision that "the Act does not prohibit an effective discharge for repudiation by the employee of his agreement." To recapitulate the facts, upon the certification of Local 977 authorizing it to negotiate a union-security provision in its contract with the Respondent on September 20, 1950, the contract between Local 977 and the Respondent became fully effective for the term of a year. In late 1950 and early 1951, the employees became dissatisfied with their wages and working conditions, as well as with Local 977, and in March 1951, by a vote of 8 to 1, determined to change their affiliation from Local 977 to Local 259, admittedly in the hope of bettering their wage rate and working conditions. Their action in this regard was taken with the knowledge and approval of both Local 977 and Local 259. On April 12, 1951, Shop Steward Diamond and Meyers, a representative of Local 259, conferred with President Pepper, informed him of the change in affiliation of the employees, requested that Local 259 be accorded recognition, and stated that they were "there to talk about a new contract." Arrangements were made to 10 As set forth above , the contract between the Respondent and Local 977 was executed on May 18, 1950, and the union-security provisions of the contract were drafted so as to read that they were -subject to the approval of the National Labor Relations Board and the certi- fication of the Union as the duly authorized representative of the Company ' s employees, and the grant of the requisite authority therefor under existing law." These provisions effectively deferred the application of the union-shop provisions of the contract until the conduct of the election in Case No . 2-UA-5884. Thereafter, they became effective, and although they con- tained illegal provisions , it cannot be argued that the provision contained therein, "subject to the approval of the National Labor Relations Board ," excused their illegality or amended the plain language of the contract showing that the provisions exceeded the limits permitted by Section 8 (a) (3) of the Act. Cf. Aluminum Company of America , 93 NLRB 1190 ; Asplundh Tree Expert Company , 92 NLRB 1013 . Moreover , even if the union-security provisions of the contract had been lawful and if it may be assumed that an employer, in pursuance of a union-shop contract , may on his own initiative lawfully take action affecting the employment of employees who are not members of the contracting labor organization , it would appear that the discharge of these Complainants was nevertheless illegal , since the reasons for the discharge exceeded the limits of the following proviso to Section 8 (a) (3): "Provided further, That no employer shall justify any discrimination against an employee for nonmembership in a labor organization ... (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 retain- ing membership." Here, the employees informed the Respondent that they were voluntarily changing their affiliation from Local 977 to Local 259, yet they were not in default in the payment of their current dues in Local 977 at the time of their discharge because of the checkoff provisions in Local 977's contract and the Respondent's adherence to such provisions and deduction of the dues for Local 977 from the terminal pay given the employees when they were discharged. 19 Alabama Marble Company, 83 NLRB 1047. 19N. L. R. B. v,The Sands Manufacturing Company, 306 U. S. 332. 972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD consider their requests at a later date with the Respondent' s counsel. The meeting con- cluded with a discussion of an employee's grievance. On the afternoon of April 12 and the morning of April 13 , seven employees engaged in a partial work stoppage by refusing to jockey cars in retaliation for the denial of the em- ployee' s grievance. On April 16, 1951 , the Respondent received a letter from the president of Local 259, who stated that the employees "have joined" Local 259 and requested "that we meet to negotiate an Agreement, at your earliest possible convenience." At the conference on April 17, 1951, Meyers stated that he was in possession of the Respondent's contract with Local 977 and was of the opinion that by its provisions the contract had terminated and requested that a new contract be negotiated with Local 259. The Respondent took the position that its contract with Local 977 was in full force and effect and stated that it would not "make any new contract with Local 259." Meyers said that "the "ontract with Local 977 wouldn't be lived up to by the men" because they "were dis- satisfied." When questioned as to the matters causing dissatisfaction , Shop Steward Diamond replied that the employees desired a higher wage rate and a change in certain working con- ditions . Some discussion as to these matters ensued and Meyers stated that he desired the Respondent " to get into line" with the standard contract of Local 259. Among other matters mentioned were the steps involved in the transfer of employees from Local 977 to Local 259 and the certified status of Local 977. In response to the Respondent's request , Meyers promised to furnish it with a statement of Local 977's approval of the change in the em- ployees' affiliation. The next day the Respondent received a letter from the president of Local 977, stating that that organization "no longer represents the members working in your plant They are now affiliated with" Local 259. The same afternoon, the Respondent assembled the employees and its counsel interviewed them. He summarized the demands made by Diamond and Meyers at the conference the previous day and then , according to the credited testimony of Fisch- bach , counsel for the Respondent , the following occurred. I also asked them each to verify to me whether it was true that they had agreed not to work under the Local 977 contract . I told them distinctly, and you can quote this be- cause these are the words that I did use. I said " I don't care whether you are Masons today, Elks tomorrow and Odd Fellows on the third. All we are interested in is your continuing to work under the contract. We have a contract with 977. It was twice the subject of proceedings before the National Labor Relations Board." I said , " I want personal verification from each of you as to whether you authorized Mr Meyers and Mr . Diamond to make the demands which they did make;" and when they indicated that they did, I said , "Under the circumstances , we have no alternative but to discharge you right here and now." It was Fischback's further testimony that he made the decision to discharge the employees at the time they told him onApril18 that "the demands that Mr . Meyers and Mr . Diamond had made had been authorized and that they would not work under 977." In the opinion of the undersigned , the facts of the instant proceeding , summarized above, are patently distinguishable from the circumstances in the Sands case and render the doctrine of that decision inapplicable. 4 As found above, a substantial portion of the Respondent's motivation for the employees' discharge--that is, that they had authorized the requests made by Meyers and Diamond for the Respondent's recognition of Local 259 and negotiation of a contract with that organization - -were protected concerted activities within the meaning of the Act and gave the Respondent no justification for the discharge of the employees. The remaining reason for the discharges and for the invocation of the Sands doctrine was the employees' statement when interrogated by the Respondent's counsel that "they would not work under 977." In the absence of circumstances comparable to those in the Sands case, the foregoing statement is insufficient--either standing alone or considered in conjunction with the partial work stoppage on April 12 and 13 and with the position advanced by the employees' representatives on April 17--in the undersigned's opinion to establish that the employees were " so irrevocably committed not to work in accordance with" the contract n In the Sands case, a dispute arose between the parties during which the contracting union insisted that the employer operate its plant in a manner different from that set forth in their contract . The union advised the employer to cease operations unless it accepted the union's conditions . On the other hand, if the employer would attempt to operate without acceding to the union's position, a strike inevitably confronted the employer . The latter thereupon shut down the plant temporarily , and upon resuming operations it hired new employees in the place of the employees represented by the union. PEPPER& POTTER, INC. 973 between Local 977 and the Respondent that they were subject to discharge by the Respondent "for repudiation by the employee of his agreement." It is accordingly found that the cir- cumstances of the case do not establish such an effective repudiation by the employees of the agreement between the Respondent and Local 977 as to justify the Respondent in dis- charging them. Having found no merit in the Respondent 's defense to the discharge of these Complainants, the undersigned concludes that by discharging Ralph Diamond , Cosmo Barbieri, Elias Degestinos, Joseph Linyear, Haynes O'Neil, Nathan Sacher, and John E. McCovery on April 18, 1951 , and Harry Timmermann on April 19, 1951 , because they engaged in protected concerted activities on behalf of Local 259 for the purpose of collective bargaining or other mutual aid or protection, the Respondent discouraged membership in Local 259 and engaged in violations of Section 8 (a) (3) and ( 1) of the Act. Inasmuch as the interrogation of the employees by Fischbach and Service Shop Manager Youngman as to their affiliation , sympathies , desires, and activities concerning Local 259 and Local 977 were directly related to the immediately ensuing discriminatory discharge of the foregoing Complainants , it follows that by such interrogation, as well as by the state- ments of Fischbach in effectuating the discharge of the Complainants because of their protected concerted activities on behalf of Local 259 , the Respondent interfered with, re- strained , and coerced its employees in the exercise of the rights guaranteed them in Section 7 of the Act. B. Alleged discriminatory discharge of Margaret O'Leary Landolfi Margaret O'Leary Landolfi entered the Respondent' s employ about May 15, 1950, and was employed in the office of the Respondent's service station . She answered the telephone, took orders , kept records , settled customers' accounts , and "made up the boys' time tickets." She was not a member of Local 977 or Local 259 and did not participate in the activities of either organization . Her position was excluded from the unit covered by Local 977's con- tract with the Respondent . In December 1950 she started dating Cosmo Barbieri , a mechanic employed in the service shop and one of the Complainants herein, and continued to do so in 1951. Barbieri frequently came to Landolfi' s office at lunch hour and sometimes ate his lunch there or had tea with her. About the middle of March 1951, Lester Potter , secretary-treasurer of the Respondent, told Service Shop Manager Joseph Youngman that Potter had heard some rumors that Landolfi was dating one of the mechanics and inquired as to " what her behavior was " Youngman replied , according to his undenied testimony, that he had heard and knew nothing about such rumors , because " at that time I didn't want to mention it." On April 18, 1951 , after Barbieri and the other Complainants were discharged , Barbieri and Landolfi left the Respondent's shop together and Barbieri told Landolfi to pack her belongings in the shop , but she refused to do so. According to the uncontroverted and credible testimony of Service Shop Manager Youngman, he had the following telephone conversation with Barbieri's wife on the morning of April 19, 1951, the morning after the discharge of the Complainants heretofore discussed: She said that she wanted to know if I knew what was going on between her husband and the girl that worked in our office . . . I said I didn't know whether there was. anything going on, as far as I know, they spend a little time together . She says well, she says, he hasn't been home and I understand he spent the night with her. That is what she told me. Youngman informed one of the Respondent' s officials of his telephone conversation with Mrs. Barbieri. Later in the morning President Pepper asked Landolfi whether she intended to remain in the Respondent's employ and she replied that she did. Not long thereafter, Secretary-Treasurer Potter and Fischbach, the Respondent's counsel, conferred with Landolfi, at which time the following occurred according to the credible testimony of Fisch- bach: On the following morning, [April 19] I personally sat down with Miss O'Leary [ Landolfi ] in the office there, and asked her if the report that I had received that she had received an invitation to leave Pepper and Potter was correct. She told me that she had been asked by Mr. Barbieri to leave. I asked her if she was satisfied with the work , her job, and she said she was. I asked her if it was true that she had been associating with him and other employees. She said it was, but she also stated that she was of the view that what she did after 974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hours was no concern of Pepper and Potter's. I told her that they had a different idea about that and I also told her that they were quite dissatisfied with her associations with the shop employees in view of the fact that she was handling money and in view of the fact that her associations extended into the customers' waiting room. tt At the end of the workday on April 19, 1951, Service Shop Manager Youngman informed Landolfi that she was discharged. Landolfi testified that immediately thereafter she had the following telephone conversation with Michael Pepper, sales manager of the Respondent: I asked Mike Pepper why I was being discharged and he said I was too friendly with the boys. I told him that was no reason for letting me go. He said well, let us say it is for the good of our campaign, Mr. Pepper and Mr. Potter and 50 of the union men talked it over and decided I shouldn't stay. . . . I said I didn't think it was a fair reason to let me go. I said I would fight him than go to the Labor Board if necessary. . He said perhaps I would be reinstated but he didn't think I would care to work for the company that didn't want me there. Michael Pepper was not available as a witness but Secretary-Treasurer Potter denied that he and President Pepper had discussed the discharge of Landolfi with any "union men" and testified that "a few days or say a week before these problems came out, for some reason or other , reports started to come to us about her associations with the men in the place which we knew nothing about up to that time. Whatever did take place , somehow or other our key men kept that to themselves , I don't know why. They finally brought it out. It wasn't the kind of thing we like to take place in our establishment . We think we should keep all personalities out of it . She was a good worker , we liked the way she worked, but once she entered into relations with the men in our place, we felt it was time we had to discharge her." President Pepper testified that although he considered Landolfi's work satisfactory , he gave the order to sever her employment with the Respondent after being told by Secretary -Treasurer Potter of her " relations with the employees of the shop and after he told me what he told me, I said well, in that event , we will have to let her go." Pepper further testified that although Barbieri had been discharged the preceding day, Pepper nevertheless determined to discharge Landolfi because "I lost my confidence in her as an employee , I didn't feel that a girl that was handling the records down at the shop and the money and so forth and so on should have any contact with any of the employees of the shop, even though they were no longer there " After Landolfi' s dismissal, the Respondent hired male employees in her stead. Although Landolfi' s testimony as to her conversation with Michael Pepper , as set forth above, was not denied by Michael Pepper , the undersigned is persuaded upon the entire record and his observation of the witnesses that despite this circumstance , Landolfi's testimony is not entitled to credence . As mentioned in the margin above, her testimonial version of a conversation with Fischbach has been rejected and she did not impress the undersigned as a wholly reliable witness . Moreover , a portion of the testimony of Secretary- Treasurer Pepper, who appeared to be a trustworthy witness, rebutted statements attri- buted to Michael Pepper by Landolfi . Furthermore , the testimony of Youngman , President Pepper , and Fischbach was mutually corroborative as to the reasons for Landolfi's dis- charge. Such testimony , coupled with the findings of fact made in respect to the discharge of the other Complainants on April 18, and the other observations made above, lead the undersigned to reject the testimony of Landolfi in respect to statements made by Michael Pepper as unworthy of credence. The undersigned concludes that the record fails to sustain by a preponderance of credible evidence the complaint's allegations that Landolfi was discriminatorily discharged "because she sympathized with or assisted, or because Respondent believed she was sympathizing with or assisting," the other Complainants " in their concerted activities on behalf of Local 259 for the purpose of collective bargaining or other mutual aid or protection ." It is accord- ingly found that the Respondent has not discriminated in respect to the hire or tenure of employment of Margaret O'Leary Landolfi within the meaning of Section 8 (a) (3) of the Act. fLandolfi's testimonial versionofthis interview varied considerably from that of Fischbach. In contradistinction to Landolfi, Fischbach appeared to be an especially reliable witness, as heretofore mentioned. His version of the interview with Landolfi is accordingly credited and Landolfi's testimony in regard thereto is rejected as unworthy of credence. PEPPER & POTTER, INC. 975 IV. THE EFFECT OF THE UNFAIR LABDR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above , occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic , and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices , the under- signed will recommend that the Respondent cease and desist therefrom and take certain affirmative action which the undersigned finds necessary to effectuate the policies of the Act. Having found that the Respondent discriminatorily discharged Ralph Diamond, Cosmo Barbieri, Elias Degestinos , Joseph Linyear, Haynes O'Neil , Nathan Sacher , and John E. McCovery on April 18, 1951 , and Harry Timmermann on April 19 , 1951, because of their concerted activities on behalf of Local 259, the undersigned will accordingly recommend that the Respondent offer them immediate and full reinstatement to their former or sub- stantially equivalent positions tt without prejudice to their seniority and other rights and privileges and make them whole , in conformity with the Woolworth formula , u for any loss of pay they may have suffered by reason of the Respondent ' s discrimination against them by payment to each of them of a sum of money equal to the amount he normally would have earned as wages from Fhe date of the Respondent' s discrimination against him to the date of the offer of reinstatement , less his net earnings during said period . * It is recom- mended further that the Respondent make available to the Board upon request payroll and other records in order to facilitate the checking of the amount of back pay due. ffi It will be recommended that the Respondent cease and desist from interfering with, restraining, or coercing its employees in violation of Section 8 (a) (1) of the Act by in- terrogating employees as to their union affiliation , sympathies , desires , and activities. Because of the Respondent ' s unlawful conduct and its underlying purpose and tendency, the undersigned finds that the unfair labor practices found are persuasively related to other unfair labor practices proscribed and that danger of their commission in the future is to be anticipated from the course of the Respondent's conduct in the past. n The pre- ventive purpose of the Act will be thwarted unless the order is coextensive with the threat. In order , therefore, to make effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor practices , and thereby to minimize industrial strife which bur- dens and obstructs commerce, and thus effectuate the policies of the Act , the undersigned will recommend that the Respondent cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act. It will also be recommended that the complaint be dismissed insofar as it alleges that the Respondent discriminated in regard t0 the hire and tenure of employment of Margaret O'Leary Landolfi. Upon the basis of the above findings of fact and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. Local 259, International Union, United Automobile , Aircraft and Agricultural Im- plement Workers of America , UAW-CIO, and Local 977, International Union, United Auto- mobile, Aircraft and Agricultural Implement Workers of America, UAW-CIO, are 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 Ralph Diamond, Cosmo Barbieri , Elias Degestinos , Joseph Linyear , Haynes O ' Neil, Nathan Sacher , John E. McCovery, and Harry Timmerman , thereby discouraging membership In Local 259, the See The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. MF. W. Woolworth Company, 90 NLRB 289. 26Crossett Lumber Co., 8 NLRB 440; Republic Steel Corporation v. N. L. R. B., 311 U. S. 7. F. W. Woolworth Company, 90 NLRB 289. 27 N. L. R. B. v. Express Publishing Co., 312 U. S. 426. 976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 5. The Respondent has not discriminated in regard to the hire and tenure of employment of Margaret O'Leary Landolfi within the meaning of Section 8 (a) (3) of the Act. [Recommendations omitted from publication.] APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT interrogate our employees in respect to their affiliation , sympathies, desires, and activities concerning Local 259 or Local 977, International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, UAW-CIO, or any other labor organization. WE WILL NOT discourage membership in Local 259, International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, UAW -CIO, or any other labor organization , by discharging any of our employees or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain , or coerce our em- ployees in the exercise of their right to self-organization , to form labor organizations, to join or assist Local 259, international Union, United Automobile, Aircraft and Agri- cultural Implement Workers of America . UAW-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing , and to engage in con- certed activities for the purposes of collective bargaining or other mutual aid or pro- tection 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 to the employees named below immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as the result of the discrimination against them. Ralph Diamond Cosmo Barbieri Elias Degestinos Joseph Linyear Haynes O'Neil Nathan Sacher John E. McCovery Harry Timmermann All our employees are free to become or remain members of Local 259, International Union, United Automobile , Aircraft and Agricultural Implement Workers of America, UAW- CIO, or any other labor organization , or to refrain from becoming or remaining members of such organizations except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act PEPPER AND POTTER, INC., 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.