Carl Burwick and Co.

CARL BURWICK AND COMPANY 629 by the Employer and they were therefore disfranchised. The Re- gional Director's investigation shows that, when the eligibility list was submitted to the Board's Regional Office and was examined by the Petitioner in accordance with the customary procedure, the field examiner's attention was called to the fact that the list included serv- ice employees which were specifically excluded by the Board from the unit. The field examiner therefore struck the names of the service employees from the eligibility list. There is no, contention that em- ployees other than service employees were stricken from the list of eligible voters. Because we specifically excluded service employees in our original decision, which we have also reaffirmed herein, we find that the objection is wholly without merit. Accordingly, we adopt the Regional Director's recommendation and overrule the objection. In view of the foregoing, and as it appears that the Petitioner has received a majority of the valid ballots cast, we shall certify it as the exclusive bargaining representative of the Employer's employees in the appropriate unit. [The Board certified Retail Clerks, International Association, Local 212, AFL-CIO, as the designated collective-bargaining representative of the employees of the Employer at its Buffalo, New York, store, in the unit heretofore found appropriate.] Hyman and Israel Burwick, d/b/a Carl Burwick and Company and Alpheus S. Mascroft, Jr. Hyman and Israel Burwick , d/b/a Carl Burwick and Company and American Federation of Grain Millers , AFL-CIO. Cases Noa. 1-CA-1869 and 1-CA-1926. February 29, 1956. DECISION AND ORDER On November 23, 1955, Trial Examiner John H. Eadie issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in certain unfair labor practices al- leged in the complaint to be in violation of Section 8 (a) (1) and (2) of the Act, and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondents had not engaged in certain unfair labor practices alleged in the complaint to be in violation of Section 8 (a) (1), (3), and (4) of the Act. Thereafter, Alpheus S. Mascroft, Jr., the Charging Party in Case No. 1-CA-1869, filed a brief and exceptions with respect to the Trial Examiner's finding that the Respondents had not reduced his hours of employment in violation of Section 8 (a) (3) of the Act. The Respondents filed a reply brief. No other exceptions were filed. 115 NLRB No. 94. 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions' and briefs, and the entire record in this case,2 and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. ORDER Upon the entire record in these cases, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Rela- tions Board hereby orders that the Respondents, Hyman and Israel Bui'wick, d/b/a Carl Burwick and Company, Worcester, Massa- chusetts, their officers, agents, successors, and assigns, shall 1. Cease and desist from : (a) Interrogating their employees concerning their union mem- bership and activities and threatening them with reprisals because of such activities. (b) Assisting and contributing support to the Committee, or any other labor organization of its employees, for the purposes of deal- ing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment. (c) Giving effect to any and all contracts, supplements thereto, or modifications thereof, with the Committee. 2. Take the following affirmative action which it is found will ef- fectuate the policies of the Act. (a) Withdraw and withhold all recognition from the Committee as the representative of their employees for the purposes of dealing with the Respondents concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until such organization shall have been certified as such representative by the Board. (b) Post at their plant at Worcester, Massachusetts, the notice attached hereto marked "Appendix." 9 Copies of such notice, to ,be furnished by the Regional Director for the First Region, shall, after being duly signed by the Respondents' authorized representa- tive, be posted by the Respondents immediately upon receipt thereof and maintained by them for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees t in their brief, the Respondents contend , among other things , that the exceptions should be dismissed on the grounds ( 1) that they do not conform to the requirements of Section 102 46 of the Board's Rules and Regulations, and (2) that they are without merit As the Board finds the exceptions to be lacking in merit , it is unnecessary to consider whet her they conform to the requirements of Section 102 46 9 biascroft's request for oral argument is hereby denied , because . In our opinion, the record and exceptions and briefs adequately present the issues and the positions of the parties. 9 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." CARL BURWICK AND COMPANY 631 are customarily posted. Reasonable steps shall be taken by the Re- spondents to insure that said notice is not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the First Region in writing, within ten (10) days from the date of this Order, what steps the Re- spondents have taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it relates to matters not found by the Trial Examiner to be violations of the Act. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT interrogate our employees concerning their mem- bership in or activities on behalf of American Federation of Grain Millers, AFL-CIO, or any other labor organization, or threaten our employees with reprisals because of such activities. WE WILL NOT assist or contribute support to the Committee of oi1r employees, or any other labor organization of our employees, for the purpose of dealing with us concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other con- ditions of employment. WIVE WILL Withdraw and withhold all recognition from the Com- mittee as the representative of any of our employees for the pur- pose of dealing with us concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until such organization shall have been certified as such representative by the Board. All our employees are free to become or remain members of the above-named Union or any other labor organization. HYMAN AND ISRAEL BURwICK, D/B/A CARL BURWICK AND COMPANY, Employer. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon charges duly filed by Alpheus S. Mascroft, Jr., an individual , and American Federation of Grain Millers, AFL, herein called the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for the First Re- 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gion (Boston, Massachusetts), issued a complaint dated June , 27, 1955, against Hyman and Israel Burwick, d/b/a Carl Burwick and Company, herein called the Respondents, alleging that the Respondents had engaged in unfair labor practices within the meaning of Section 8 (a) (1), (2), (3), and (4) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, herein called the Act. With respect to the unfair labor practices, the complaint alleges that the Re- spondents: (1) on or about March 28, 1955, discriminatorily assigned Marie Palermo and Dorothy Pellegrino to more arduous and less agreeable work; (2) on or about April 12, 1955, discriminatorily discharged said Palermo and Pellegrino; (3) on or about March 1, 1955, discriminatorily reduced the hours of employment of Al- pheus S. Mascroft, Jr., and Norman J. LaCasse; (4) beginning on or about February 7, 1955, and thereafter, engaged in certain acts of interference, restraint, and coercion; and (5) beginning in or about March 1955, initiated, sponsored, and formed the Committee of Respondents' Employees, hereinafter referred to as the Committee, and thereafter assisted, dominated, and contributed to the support of, and interfered with the administration of, the Committee. About July 20, 1955, the Respondents filed an answer in which they admitted the jurisdictional allegations of the complaint, but denied the commission of any unfair labor practices. Pursuant to notice, a hearing was held at Worcester, Massachusetts, before the duly designated Trial Examiner, from August 16 to 20, 1955. At the conclusion of the General Counsel's case, the Respondents made separate motions to dismiss various allegations of the complaint. Ruling was reserved on the motions with one exception. The motion to dismiss as to Harry Miller, alleged in the complaint to be an agent of Respondents, was granted. At the conclusion of the whole case, the General Counsel moved to conform the pleadings to the proof as to minor variances, not as to substance. The motion was granted without objection. The Respondents renewed their motions to dismiss. Rulings were reserved. The motions to dis- miss are disposed of as hereinafter indicated. After the close of the hearing, the General Counsel and the Respondents filed briefs with the Trial Examiner. On September 22, 1955,' the Respondents also filed a motion to correct the transcript of proceedings. Since none of the parties has raised an objection to the motion, it hereby is granted; and the record of tran- script is corrected accordingly. The Respondents' motion is received in evidence and marked as Trial Examiner's Exhibit No. 1. Based upon the record as a whole, and from his observations of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENTS Hyman and Israel Burwick, d/b/a Carl Burwick and Company, maintain their office and plant in Worcester, Massachusetts, where they are engaged in the business of cleaning, repairing, and reconditioning feed and grain bags. Respondents, in the course and conduct of the said business, receive annually over $200,000 for services performed, which services are furnished to employers who themselves annually produce and ship, directly to points outside the States in which they are located, goods valued at over $50,000. The goods which the Respondents handle or produce and ship directly to customers located outside the State of Massa- chusetts are valued at more than $50,000. The Respondents admit and it is found that they are engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATIONS INVOLVED American Federation of Grain Millers, AFL, and the Committee are labor organ- izations within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background There are 6 main departments in the Respondents' plant: the shipping and re- ceiving department, the blower department, the stitching department, and 3 checking departments known as the eastern department, the GLF department, and the mixed bag department. Platform workers, loaders, and truckdrivers work in the shipping and receiving department under the supervision of Foreman Dollard Charland. Jacob Frankel has general supervision over all of the production departments . Michael Falcone is foreman in the eastern department and Edward Strozina is foreman in the mixed bag department. During January 1955 the Respondents employed approxi- CARL BURWICK AND COMPANY 633 mately 1105 persons in the plant . By February 1955 this number was decreased to approximately 87 and was decreased further to approximately 76 by August 1955. Alpheus S. Mascroft, Jr., who worked for the Respondents as a truckdriver and on the platform, instigated the union organizational drive in the plant, beginning during the first week in February 1955. He contacted Floyd Fredericks, a representative of the Union, and together they visited the homes of employees in order to solicit their membership in the Union. As a result of the campaign, a representation peti- tion was filed by the Union on February 7, 1955, in Case No. 1-RC-3912 (not re- ported in printed volumes of Board Decisions and Orders); a consent-election agree- ment was entered into on February 10, 1955; and an election was conducted by the Board on February 25, 1955, which the Union lost. On March 2 the Union filed objections to the election. On April 13, 1955, the Regional Director issued a report on objections, setting aside the results of the election. Starting about March 1, 1955, the hours of employment of Mascroft and Norman J. LaCasse were reduced. On and after about March 30, 1955, Marie Palermo and Dorothy Pellegrino, who were employed as checkers in the mixed bag de- partment, frequently and for whole days were transferred to temporary work in the blower department. It was part of the duties of Palermo and Pellegrino to perform such work on the blowers prior to March 30, but the transfers were not as prolonged or constant. The General Counsel contends that the Respondents cut the hours of Mascroft and LaCasse and transferred Palermo and Pellegrino to less de- sirable work for discriminatory reasons. The Respondents' defenses to these alleged discriminations are economic. The evidence shows that during 1954 and 1955 bags were processed in the plant as follows: 1954 1955 January------------------------------------------- 1,017,198 937,123 February ------------------------------------------ 1,061,417 810,525 March-------------------------------------------- 1,212,675 1,121,544 April--------------------------------------------- 1,090,445 924,408 May---------------------------------------------- 1,121,353 940,681 June---------------- ------------------------------ 991,941 946,105 July---------------------------------------------- 783,883 669,818 August-------------------------------------------- 1,028,560 September----------------------------------------- 1,088,227 October------------------------------------------- 924,234 November----------------------------------------- 914,977 December----------------------------------------- 1,131,202 The testimony of the Respondents ' witnesses indicates that the above decline in business was due mainly to the fact that the Respondents ' customers increasingly were making bulk shipments and were using paper instead of burlap bags. The testimony of Respondent Hyman Burwick concerning the reduction of the number. of employees and their hours of employment is summarized in the following tabulation: Number of Operators Average Week- ly Hours Sewmg,,rlepartment• January 1954------------------------------------------------------ 9to10 38 to 40 January 1955 -------------------------------------------------------- 7 35 February 195.5------------------------------------------------------- 7 32 March 1955------------------------------------------------------- 32 to 35 August 1955-----_-_ 7 24 to 30 Blower department January 1954------------------------------------------------------ 15 or 16 40 or 41 January 1955 -------------------------------------------------------- 14 or 15 38 February 1955--------------------------------------------------- 13 or 14 36 March 1955 --------------------------------------------------------- 13 35 August 1955------------------------------------------------------- 12 or 13 32 to 35 Checking department January 1954--------------- ------------------------------------- 28 to 30 40 to 42 January 1955---------------- ------------ ---- 24 to 25 38 February 195.5--------------------------------------------------- 24 to 25 36 March 1955-------------------------------------------------------- 23 to 24 35 August 1955---------------------- ------------- 22 35 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Interference, restraint, and coercion As will be more fully discussed hereinafter, employee Norman J. LaCasse was an active adherent of the Union. He testified that about 3 weeks before the election on February 25 he had a conversation in the plant with his brother -in-law, Foreman. Michael Falcone; and that, "Mr. Falcone told me that I better think this matter over about the Union, that I had a good job and jobs are hard to get today, and I should think about it twice. . . I couldn't get one outside like it." Falcone admitted having a conversation with LaCasse about the Union . He testified that the conversation took place at his home; that LaCasse asked him what he thought about the Union; and that, "I told him I didn't think it would be good for him because he was doing all right. He had a good job there . . . what was he kicking about." I credit LaCasse's version of the conversation 1 and find that Falcone's remarks constitute interference, restraint, and coercion since they contain an implied threat of reprisal. Employee Majorie Goding had a conversation with Foreman Falcone about 10 days before the election. He asked her what she thought about the Union. She replied that she was not "sure as yet." He then said, "Well, you girls should give it a lot of thought, because if you get a union in here you will only be working to 12:00 o'clock a good many days because the Burwicks are stretching the work to 3:00 o'clock now to give you extra time ." He also told her that the male employees would be working "only 40 hours with no more overtime" if the Union organized the plant, and that "the Burwicks had a lot of money and they could close the plant anytime they wished." 2 It is found that Falcone's interrogation of Goding concerning the Union and his- threats of reprisal were violative of Section 8 (a) (1) of the Act. As related above, Marie Palermo and Dorothy Pellegrino worked in the mixed bag department under the supervision of Foreman Edward Strozina. Concerning conversations that she and Pellegrino had with Strozina shortly before the election, Palermo testified,3 "Well, Eddie Strozina said to me that if the Union got in-he said that when the work was done that we would be sent home and we wouldn 't be trans- ferred to any other kind of work to be filled in. He also said that we wouldn't get no Christmas bonuses. . . . He said that Hyman [Burwick] was going to give everybody a 5 or 10 cent raise, but when he heard about the union he knocked it right off, and he said that he would knock the union over if it killed him, and he said that Hyman knows who signed cards for the union , and Eddie said 'I pity them because they won't get no raises .' And, he said that if the union got in that Stanley Mascroft wouldn't be getting any overtime, . . . and he said that if the union got in, the rate of reduction [sic] was going to go up ; and if you didn't make it, out you would be." Strozina testified to the effect that some of the statements, such as the one con- cerning Mascroft, he had heard "just as a rumor that went around the shop" or as "shop gossip," but denied making any of the statements attributed to him by Palermo and Pellegrino. Strozina admitted having a conversation with them about the Union during the week before the election . He testified , in substance, that they brought up the subject by asking him for his opinion of the Union; and that he told Palermo to discuss it with her family rather than him , as he did not want to get involved. Mascroft had a conversation with Strozina about February 18 or 19. In this con- nection Mascroft testified credibly, "I told him that I understood he had been talking 'From his demeanor as a witness, Falcone did not impress me as reliable or credible. He was evasive and contradictory in his testimony . He admitted during cross -exanmina- tion that prior to the tune of the above conversation LaCasse, Mascroft, and Fredericks had visited him at his home and asked him for his opinion of the Union. He at first testi- fled that he did not "commit" himself Latei he testified that he told them what he thought about the Union Falcone was equally co tiadictot,y when asked to explain why LaCasse asked him toi his opinion about the Union if he had heard it before. He at first testified, "Well, he knew my opinion," and then, "The first time lie cause up he didn't know my opinion " s The above conversation is based upon the credited testimony of Goding Falcone de- nied that lie had a talk with Goding about the Union His denial is not coedited 3Pa]ermo testified that Pellegrino worked on her might and employee Rita Des Roches on hem left, that Strozina "icas speaking to all of us," and that "he used to repeat the same thing evemy day" during the week before the election. Pellegrino's testimony was substantially the same as Palermo's concerning the conversations with Strozina Des Roches did not appear as a witness at the hearing CARL BURWICK AND COMPANY 635 to his girls about voting against the Union and he was intimidating and threatening them . and he said 'If you organize the shop February 25 . there would be a strike the first of March. . . There are good points and bad points , and all I can see that you are going to gain is 2 cents an hour . . . and I don't see where it is worthwhile.' He said he didn't threaten anybody." 4 I credit the above testimony of Palmero and Pellegrino . Strozina did not im- press me favorably as a witness . It is found that his statements constitute inter- ference, restraint, and coercion since they contain threats of reprisal . His state- ment to Mascroft concerning a strike is not found to be violative of the Act. About 2 or 3 weeks before the election on February 25, employee Charles Nichols, a truckdriver, had a conversation with Foreman Dollard Charland when they met in a tavern away from the plant. Concerning the conversation, Nichols testified, "Well, the way I recall it, he said , 'Look at the way things are happening down here right now .' He said 'I can get you and Mr. Sullivan [also a truckdriver for the Respondents] a raise of 15¢ without any question whatsoever,' and that Stanley Mascroft was at it again." Charland at first testified that he did not "think" that Mascroft's name was men- tioned during the conversation , and later that he was "sure " his name was not brought up because the Union was not discussed. He admitted that Mascroft's name and the word "union" meant the same thing at the time in question. As for his talk with Nichols, he testified, "He asked me to have his truck greased and a few other changes and items he wanted done, and then the question of wages was brought up and he suggested to me that him and George Sullivan, another driver, . were worth a little more money per hour than what they were getting, so I told him I would speak to the office and see what I could do for them . No amount was mentioned." I credit Charland's version of the above conversation . However, assuming arguendo that Charland did make the statements as testified to by Nichols, I be- lieve that the evidence is meaningless and does not warrant the drawing of an infer- ence to the effect that Nichols and Sullivan were promised a wage increase if they did not support the Union. John Kowalsky worked as a truckdriver under the supervision of Foreman Char- land. Kowalsky testified that a few days before the election and again a few days after Charland stated to him and employees Bourdon and Witkes that the Burwicks had "plenty of money," that they did not have "to worry about [the employees] at all," and that they could close the plant. Charland admitted having a conversation about the Union with Kowalsky, Bour- don and Witkes, but testified that it took place about 2 or 3 weeks before the elec- tion. He denied having a conversation with them after the election , and also denied the statements attributed to him by Kowalsky. Concerning the conversation, Char- land testified, "I was taking work up to them. They were unloading these trucks that I brought up. . . They were in conversation when I got there . . . I stood by for a moment and Bourdon . . . asked me what I thought of the Union. I told him I didn't think much of it, and he said 'Why?' I said 'I am well satisfied the way I am going,' and I took the empty trucks back down in the elevator and con- tinued on my work." Neither Bourdon nor Witkes appeared as witnesses at the hearing. I credit Charland's version of the above conversation . Kowalsky did not impress me as a reliable witness. Although questioned at length , he was unable to recall any of the conversation other than the above. Further, it appears improbable that Charland would have made the same statement after the election, especially since the Union had lost it. Employee Ulric Germain, a "receiving inspector," testified without contradiction that a few weeks before the election Hyman Burwick came to his department and spoke to him; that Burwick asked him if he had been "approached by anybody con- cerning the Union"; that when he admitted that he had been solicited , Burwick asked him to identify the person; that he told Burwick that he "would rather not answer"; and that Burwick replied that it was "all right." It is found that Burwick's interrogation of Germain constitutes interference, restraint, and coercion. Frances Villatico worked as a checker in the eastern department under Foreman Falcone. She wore a union button for about 2 days before the election and was the only employee in her department who did. Villatico testified that about 8:15 a. m. on February 25, Falcone came to her bench and told her "to go up and vote"; that * Strozina testified , in substance , that Mascroft accused him "of knocking the Union down ," and that he denied the charge. 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD when she returned to the department about 3 minutes later , Falcone told the rest of the employees that it was time for them to vote; and that they left the depart- ment as a group. Falcone denied that he at any time told Villatico to vote alone. He testified, in substance, that he did not notify or instruct any of the employees under his super- vision concerning the time they were scheduled to vote; that the employees left their work when employee John Domantas "came after them"; and that he did not hear anything said by Domantas as he (Falcone) was busy at "the other end of my department." Domantas testified to the effect that on February 25 he assisted the Board's field examiner by notifying the employees when it was time for them to vote, that about 9 a. m. he notified the employees in the eastern -department by tell- ing them, "Okay, girls, you are next"; that at the time Villatico "was the first one in [the] line"; that Falcone could not have said anything to Villatico because he "was down the other end, all the way"; and that Villatico left the department alone to vote, with the other employees following about 10 feet behind her. Villatico testified that she did not see or hear Domantas notify the employees to vote. Falcone has been discredited heretofore. However, in this instance his testimony is supported by that of Domantas, who appeared to be a credible and reliable wit- ness. Accordingly, their version of the above incident is credited. It is undisputed that Domantas assisted the field examiner in the conduct of the election by notify- ing the employees when it was time for them to vote. However, Villatico was defi- nite in her testimony that the employees were notified when to vote by Falcone, and not by Domantas. Her testimony rules out the possibility that Falcone in- structed her to vote alone before she was notified when to vote. The complaint alleges that during February and March 1955, the Respondents granted wage raises and other economic benefits in order to discourage the em- ployees' support for and adherence to the Union, and that such conduct was viola- tive of Section 8 (a) (1) of the Act. The evidence shows that: Roland Orn re- ceived a 10-cent increase effective the week ending February 25; Elwin Chase received a 5-cent increase effective February 11; Roland Rivers received a 10-cent increase effective March 4; Chauncy Crepean received a 10-cent increase during the week ending February 11; and during the week ending March 25, 1955, wage increases were given to all the employees in the plant , ranging from 5 to 15 cents per hour, except in the case of Harry Miller, maintenance man, who received an increase of 25 cents per hour. The evidence further discloses that the election was held on February 25, 1955; that the Union filed objections to the election on March 2, 1955 ; and that a report on the objections, setting aside the results of the election, was issued on April 13, 1955. The General Counsel adduced no evidence other than the above in support of this allegation of the complaint. Orn, Crepean, Chase, and Rivers did not appear as witnesses at the hearing. With respect to the 4 individual wage increases, Hyman Burwick testified without contradiction that for a number of years the Respondent had a policy of granting wage increases to individual employes on the basis of merit; that 3 of the 4 increases in question had been granted for merit; and that Crepean was granted his increase because additional duties had been assigned to him The evidence discloses that at some time during the early part of March 1955 a group of employees, including Beatrice Benoit and Walter Juskovitch, met with Hyman Burwick. This meeting will be more fully discussed hereinafter. Concern- ing the meeting Benoit testified without contradiction that Juskovitch reminded Burwick that during the previous December he (Burwick) had told him that he might be able to give the employees a wage increase in the spring. In my opinion, the General Counsel has failed to sustain the burden of proving that the above wage increases were granted in order to discourage the employees from supporting the Union. There is no substantial evidence upon which an in- ference to this effect could be based. The uncontradicted testimony of Burwick and Benoit indicates the contrary. C. The reduction of Mascroft's hours of employment Alpheus S. Mascroft, Jr., was hired by the Respondents as a platform worker in August 1950. Subsequently, he became a "spare" truckdriver. In this job he con- tinued to perform platform work when not driving a truck. About May 1951, when another truckdriver quit, Mascroft became a regular truckdriver on the Maine run, working 5 days a week as a driver and a half day in the plant on Saturday. Beginning in January 1953, he drove a trailer truck. On this job he spent about half of his time driving and the other half performing platform work at the plant. As related above, Mascroft was the instigator of the union campaign in the plant. On about February 3, 1955, he contacted Floyd Fredericks, a representative of the CARL BURWICK AND COMPANY 637 Union , and thereafter, he and Fredericks visited employees at their homes. At the plant Mascroft solicited employees to join the Union by talking to them and by passing out union authorization cards and literature. On February 13, he distributed union leaflets near the employees' entrance to the plant before work . He engaged in these union activities continuously until the election on February 25, at which he acted as the observer for the Union . The evidence discloses that the Respondents were fully aware of Mascroft's union activity. Burwick testified, "It was very well known that Mr. Mascroft was more or less the spirit of the campaign to the union." Concerning his hours of work, Mascroft testified, in substance, that during the years 1952, 1953, and 1954 he averaged between 60 and 65 hours per week, that dur- ing January and February of 1955 he averaged approximately 50 hours per week; that after March 1, 1955, his weekly hours were reduced to about 45 or 46; and that this reduction in hours was caused by the elimination of (1) all Saturday platform work, (2) platform work from 7 a. m. to 12 noon on those days on which he was scheduled to drive the truck to Albany, New York, and (3) platform work from 1 to 4 p . in. on 5 or 6 occasions during March 1955, and on 2 or 3 other occasions sub- sequent to March, when he returned from truck trips during the morning. Mascroft protested his reduced hours to both Israel and Hyman Burwick. His con- versation with the former took place about 2, or 3 weeks after March 1. As to this conversation he testified without contradiction as follows: I asked him why my hours were being reduced , so he said, "We are not reducing your hours. We are just trying to spread the time out among the boys," he said, "Business, is bad . I can't have you coming in and taking work away from the boys," and I told him that one time he didn't care how many hours that I put in if there was work. If there was work I worked, and I put in a lot of hours in the past, and he said "There is no sense in arguing ," and then I left. I walked out. He talked to Hyman Burwick on or about April 1 Concerning this conversation, Mascroft testified, "I told him my hours were being cut down, and they were prob- ably putting all this pressure on me . . . think I am going to quit. He said, `No, you are not going to quit, you are going to stay here and ruin my business . . With all this trouble you are stirring up . you got these investigators in here all the time taking up all our time .5 We can't take care of our business'. . and he told me that I did more than read the comic page and you are seeing what they are trying to do in the steel and auto industry, and he said `You can't do it here. You don't mind your own business and you are always going around bothering everybody on company time. I have had people come in here and tell me you are bothering them on company time . . . that they want me to do something to you for bothering them . You have done a lot of things that you could be fired for, but you have got a family, and we give you a break . . . we feel sorry for you.' " Burwick admitted having a conversation with Mascroft about his reduction in hours, but denied that the field examiner's investigation was mentioned . He testified to the following: Well, Stanley walked into my office one morning about the early part of May,' as I recall it, and started off something like this. "Hy , I want to talk to you about why you cut my hours," and then he said something about, "Oh, I sup- pose you are expecting me to quit, but I don't intend to." And I said to him, "No, I wasn't expecting you to quit." He said, "Well , I suppose you want me to quit because of what I have been doing," so I said to him , "Well, this is a free country, and you have a right to try to do anything you please within your rights in this plant here, and there is nothing we can do to stop you, those are your rights ." And, he said, "Well, I suppose you would like to get rid of me," or words to that effect, and I said to him, "No, if we were gunning for you, there have been several occasions recently when we could have either fired you, or disciplined you, or something of that kind, for things that you shouldn't have done, and you know you shouldn 't have done them," and so I said, "If you want to know what is the reason for your hours , I think you un- derstand them very clearly yourself, you know yourself how the trips to Albany have fallen off, I think you have observed yourself how the business in general here has been going down , and down, and down, and we are having everything we can do to try to compete and try to keep the volume coming in here " I 6It was stipulated at the heating that Joseph Bair}, a field examiner of the Board, first visited the plant on March 23, 1955 Aascroft filed his charge in the instant case on Alarch 2 1953, 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD said, "You know about bulk feeds now, about paper, you know about a lot of other things there, and you know that this business is not a booming business like you read in the papers, like steel and automobiles, you know that this is more of a depression business." And I recall Stanley said to me, "Well, I read beyond the funnies and the sport page, and I know what is going on." The evidence discloses that there were 5 regular platform workers; that these employees normally work from 7 a. m. to 4 p. in., Monday through Friday, and from 3 to 5 hours on Saturday; and that 2 of the 5 truckdrivers, Mascroft and Edward Cohen, also performed platform work .6 Mascroft testified that approxi- mately half of his time was spent on platform work; and Cohen testified that about 30 percent of his time was on such work. The Respondents admit that Mascroft's hours were reduced, except not to the extent claimed by him. Mascroft's timecards from the week ending September 3, 1955, through the week ending July 29, 1955, were received in evidence. The cards show that after March 1, 1955, he did not perform any Saturday work; that from September 3, 1954, to March 4, 1955, a period of 27 consecutive weeks, he worked on only 8 Saturdays; that during the first 8 weeks of 1955 he worked a total of 418 hours including 12 hours on 3 Saturdays for an average of 52 hours per week; and that during the period beginning with the week ending March 10 through July 29, excluding the weeks ending June 24 and July 8,7 Mascroft worked a total of 870 hours for a weekly average of about 46 hours. The record therefore shows that after March 1 Mascroft's hours of employment were reduced by about 6 per week. Foreman Charland and Hyman Burwick testified to the effect that it was neces- sary to have the full platform crew available during the regular workweek because of the irregular times of shipments and deliveries; and that because the work was getting slack and "in order to keep the platform crew occupied" it was decided to reduce the hours of Mascroft and Cohen. Burwick testified that his decision to reduce Mascroft's hours was reached during the early part of February 1955, because of "a terrific drop off in the number of bags received" during that month; that he was advised by Respondents' attorney, however, to postpone the rescheduling of hours until after the Board's election; that through "some misunderstanding" Cohen's Saturday work was not eliminated until April; 8 and that the hours of employees -Robert Strozina, John Domantas, Michael Gobriella, and John Viktazentis were re- duced during April and May. Charland testified that "both me and the office" were responsible for the decision to reduce Mascroft's hours "because of lack of work"; and that he arrived at this decision "the latter part of March, or the first of April." When asked to explain why Mascroft's hours actually were reduced about March 1 if he had reached his decision in April, Charland' testified "I don't know . I must have been told to, probably," but that he "may have had" something to do with that decision. Charland admitted that there were some occasions after March 1 when Mas- croft was not permitted to work during the afternoon after arriving back from a trip during the morning.9 In this connection, Burwick testified, ". . . I believe there were two instances in which [Mascroft] returned from a trip very late in the morn- ing, which was not the usual practice on his trips, and Mr. Charland reported to me that he did not inform him as to why he did come back late. . Mr. Charland said to me, `He doesn't look fit to me to work, and I don't think I want him around here to work,' and I said, `then if he doesn't look fit to work, send him home.' " Mascroft testified that about March 1 he asked Charland if he could work on the following Saturday; that Charland shook his head and replied, "Don't ask me"; Chauncy Crepean, a regular platform worker, became a spare truckdriver during March 1955. Charles Nichols and George Sullivan worked exclusively as truckdrivers Norman J LaCasse, whose work will be discussed hereinafter in more detail, worked both as a truckdriver and in the plant on work other than the platform 1 Mascroft did not work during the week of June 24 and was on vacation during the week of July 8 8 The timecards of Cohen foi the period of February 4 until April 29, 1955 , were re- ceived in evidence The card for the week ending April 22 discloses that he worked on Saturday for 4 hours Y Mascroft testified without contradiction that the first time that this happened during his employment was on March 1 or 2, 1955, when he returned from a trip during the morn- ing and reported for platform work at 1 p. in.; and that Charland told him, "you can't work this afternoon . . . . They feel you are a hazard around the shop. You will have to go home." CARL BURWICK AND COMPANY 639 that before that time Charland was the supervisor who told him when he could work on Saturday; and that, "I was free to come in [on Saturday] if I wanted to and if I didn't want to, I would take the day off." Burwick admitted that Mas- -croft "was told definitely not to come in any more Saturdays." Neither Burwick nor Charland testified as to the date when Mascroft was so notified. The evidence establishes that on the majority of his trips to Albany Mascroft left Worcester about 1 p. m.; and that prior to March 1, 1955, he worked on the platform during the morning hours before leaving on such trips. It appears that before February 1955, the GLF plant in Albany gave the Respondents short notice as to the time that it wanted the Respondents' truck to arrive in Albany. The Re- spondents contend, in effect , that the reduction of Mascroft' s morning hours was necessitated because of a business decline, and that such reduction became possible early in February by reason of the fact that the GLF plant gave notice a day or more ahead when it wanted the truck, rather than on'the day itself. As related above, Burwick testified that he deferred reducing Mascroft's hours at that time on the advice of counsel. In this connection, Burwick testified to the following: This was between the early part'and the middle part of February. . . And be- cause of the tremendous drop in the amount of GLF bags available, they were in a position to let us know, in fact, not only a day, but sometimes even two days ahead as to when they thought they might have a load available and when we could send up a load of bales. Because of that tremendous slow down, they were in a better position to keep us informed ahead of time as to when we could schedule the trip, and we asked them to please try to keep us informed ahead of time because of the slow condition in the plant, that we were desperate for bags, and we would like to know as quickly as we could as to when the the loads were available ahead of time. Charland at first testified that during a period of about 6 months before March 1, 1955, when the GLF plant notified the Respondents the day before it wanted the truck at Albany, he instructed Mascroft not to report for work the following morn- ing. Later he testified that he was not "sure that the Respondents ever had received such notice" during the period of time in question or that he had told Mascroft not to work under such conditions. The undisputed evidence shows that there was a general decline in the Respond- ents' business. Witnesses for the General Counsel also testified to this effect. As related above, Burwick testified without contradiction that there was a correspond- ing decrease throughout the plant in the number of employees and in their hours of employment. However, except for LaCasse, whose case will be discussed here- inafter, and Mascroft, the hours of the male employees named by Burwick were not reduced until April or May. As found above, Cohen worked on Saturday during the week ending April 22. The last Saturday that he worked before that time was during the week ending March 25. Cohen was not certain in his testimony as to when he was notified that he was not to work on Saturday. He testified at first that this occurred about 3 weeks after the election, then 3 weeks after March 21, and finally 3 weeks after April 21. He testified that he was notified by Charland and that he spoke to Burwick to find out the reason. Concerning his conversation with Burwick, he testified, "I asked him why I was taken off Saturday work, and he told me that he was looking to equalize the hours among the men, the drivers, and I was getting too much time in . and business wasn't as good as it should be." Burwick testified in this con- nection, "Cohen's hours were actually reduced in April. Actually something went amiss, and he was supposed to have been reduced in March, but what went amiss there was that he came in one or two Saturdays extra.1° . I told him [during March] not to come in anymore on Saturdays, but I think he misunderstood me about what I meant on not coming in on Saturdays. He thought I was still referring to the long Saturdays, or one week there when he had a breakdown, he had a long week there when he was really supposed to be in. . But when I heard that he had come in, I told Charland to make sure to tell him to make sure he was not to come in." I credit the above testimony of Burwick. The General Counsel points out in his brief that Cohen's hours on platform work were not reduced, except for the elimination of Saturday work. At first glance, this fact ,appears to raise a presumption of discrimination against Mascroft. How- ever, the undisputed evidence shows that Cohen devoted only 25 to 30 percent of d"Cohen was supposed to work every other Saturday. His tunecards show that lie worked`on Saturday during the weeks ending February 25 and March 4 and 11. 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his time to platform'work, as against Mascroft's 50 percent.ir There is no proof that the Respondents were in a position to reduce Cohen's platform hours. Fur- ther, since the question of discrimination as between Mascroft and Cohen has been raised, it is noteworthy that Cohen testified without contradiction that he wore a union button before the election. The evidence shows that for the period from the week ending January 7 through the week ending February 25 Mascroft's weekly hours were as follows: 661/4, 483/4, 521/4, 521/2, 50, 49, 533/4, and 451/2. It is not claimed that any discriminatory treat- ment was accorded Mascroft during those weeks. His weekly hours for the next 5 weeks were: 521/4, 493/4, 481/2, 48, and 49. This evidence does not present a picture of drastically reduced hours during March, at least not to the extent gath- ered from Mascroft's testimony. It is true that his weekly hours were reduced to a greater extent after March, but the evidence shows that Cohen's hours were reduced proportionately. Although Charland was vague and contradictory in his testimony, Burwick im- pressed me as a reliable and credible witness. Accordingly, I credit his testimony, above, when in conflict with that of Mascroft. From all of the evidence, I believe and find that the Respondents did not discriminate against Mascroft by reducing his hours of employment, and shall recommend that this allegation of the complaint be dismissed. D. The reduction of Norman J. LaCasse's hours of employment LaCasse, a brother-in-law of Mascroft, was hired by the Respondents in 1950 as a platform worker and a spare truckdriver. About December 1952, he was relieved of his truckdriving duties and his work was confined to jobs in the plant. About October 1954 he became a spare truckdriver again. When not driving a truck, he worked in the plant assisting employee Harry Miller in general maintenance work under the supervision of General Production Supervisor Jacob Frankel. LaCasse testified that his hours, while working in the plant, were from 7 a. in. to 5 p. in. and 5 hours on Saturday. During the union campaign, LaCasse accompanied Mascroft and Fredericks to the homes of "a few" employees. He also was a member of the Union's organizational committee. LaCasse testified that at about 4:15 p. in. on March 1, while he was repairing a sewing machine, Frankel told him to go home as Burwick did not want to give him "any overtime"; that the next day Frankel told him that Hyman Burwick had ordered that he was to quit work at 4 p. m.; that he was instructed by the truck dispatcher, who first checked with Burwick, not to report for work on the following Saturday; that he worked on the next Saturday but was not permitted to perform Saturday work thereafter;12 that after March 1 he was not permitted to work after 4 p. m.; and that "around April" he was transferred to work on the blowers. The evidence shows that before March 1, 1955, Miller was employed by the Respondents on work other than at the plant, and that this work consumed a con- siderable portion of his time. Burwick testified that with the exception of from 2 to 4 hours per week Miller resumed his work at the plant during the latter part of February or the early part of March 1955. Miller testified to the effect that after March 1 he commenced to devote more of his time to maintenance work at the plant. The Respondents contend, in substance, that LaCasse's hours were reduced be- cause of the general decline in business and because there was not enough work to keep him occupied when Miller resumed his duties at the plant. When questioned as to the reasons for LaCasse's reduced hours, Hyman Burwick testified to the following: Well, it goes along very much with the general decline in business and produc- tion, and Mr. Frankel had reported to me on a few occasions there that he didn't know what to do with Norman LaCasse during the day time, that while he was doing some maintenance work, there was nowhere near enough for him to take care of, and that Mr. Miller being back in the plant more regularly, he didn't know just what to do with him. I told him "We'll shift him around to different departments and use him you can, so that he will keep himself r1 Mascroft testified that Cohen "works about 25 percent of his time on the platform, 75) percent of his work hours on the ; oad " 12LCCasse's timecards show that be did not work on Saturday during the week ending Mai c h 11, but did 'a ork on Saturday during the week ending March 18. CARL BURWICK AND COMPANY 641 employed," and then he said to me, "Well, he kind of tries to make the time of day go by so that when 4 o'clock comes, he gets busy fixing up some kind of motor, or machine, so he can stay until 5 o'clock," and I said, "That kind of business I don't want to put up with. The man has got to do his work during his regular hours, and there is no sense in having the man stay overtime in order to do work that he can do during his regular hours," and then I said to him, "Well, does he do that to spread the work out to Saturday?" And, he said, "Yes, in other words, he doesn't fill his full time so that he can do the work that he should have done during the week on Saturday." So, I said to him, "Well, tell Mr. LaCasse," or "tell Norman that hereafter he is to quit work at 4 o'clock, and he is not to come in on Saturdays because he is not needed." The record discloses that for the first 11 weeks of 1955, LaCasse's weekly hours were 521/2, 561/4, 501/z, 51, 513/4, 501/2, 49, 541/2, 533/4, and 51i/z; and that for the next 8 weeks, beginning with the week ending March 25, his weekly hours were 45, 44, 46, 431/2, 421/4, 433/4, 451/2, and 473/4. This record conclusively proves, contrary to LaCasse's testimony, that his hours were not reduced until the week ending March 25. It is true that LaCasse's hours were reduced, as were Mascroft's before those of the other male employees named by Burwick. This fact raises a suspicion of discrimination. However, Burwick's testimony affords a credible ex- planation; and I find nothing in the record of a substantial nature that would cause me to discredit him in this connection. Accordingly, I find that LaCasse's hours were not reduced in violation of the Act, and shall recommend that the complaint be dismissed insofar as his case is concerned. E. Marie Palermo and Dorothy Pellegrino Palermo and Pellegrino were hired by the Respondents during 1951. They both worked as checkers in the mixed bag department under Foreman Strozina. Palermo, Pellegrino, and Rita Des Roches, also a checker in the mix bag department, often were transferred temporarily to work on the blowers. Palermo and Pellegrino both testified that before March 1955, they worked about 1 or 2 days per week on the blowers.13 Checkers were paid by the hour; and employees in the blower depart- ment were paid on a piece-rate basis. Checkers who were transferred temporarily to blower work continued to receive their hourly rates, and were not required to. meet any production quota. As related above, Palermo and Pellegrino were the only employees in the mixed bag department who wore union buttons before the election on February 25. Also, the conversations between them and Strozina have been related and found above. Palermo testified that during 1954 and at some time before the election in 1955 she made complaints to Strozina, Frankel, and Burwick concerning her assignment to blower work; that she told Strozina "that I couldn't work on the blower because my back used to hurt all the time, it was strenuous work for me"; that Strozina replied, "I can't do anything, so see Mr. Frankel"; that when she asked Frankel to be relieved from blower work, he replied, "Well, I need the work"; that on another occasion she told Burwick that she could not work on the blower because she had a sore throat and the dust was bothering her; that Burwick told her to tell Frankel to take her off the blowers; that after she gave the message to Frankel, she was relieved from blower work for only 1 or 2 days; that on still another occasion she told Strozina and Frankel that she did not want to work on the blowers as she "broke out with a rash from the dust"; that they made no reply but continued to assign her to blower work; and that employees in the other checking departments also were assigned temporarily to blower work. Palermo further testified that starting about March 28, 1955, and until her termination of employment on April 12, she was assigned continuously to blower work; that during this period of time she did not do any checking, and Des Roches was not assigned to blower work; that "one day" she saw Des Roches checking bags on which she (Palermo) usually worked; that Des Roches had not checked such bags before March 28; that from her observations there were sufficient bags in the mixed bag department to keep her occupied; that after her first week on blower work she complained to Strozina, asking him why she was assigned to blowers "all the time"; that he replied, "I don't know, ask Frankel, it's Frankel's orders. He told' me to tell you to go on the blower"; that she then complained to Frankel, telling him, 1s Des Roches did not appear as a witness at the hearing 390609-56-vol 115-42 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "There's enough work in the mixed department for me to do"; that he replied that it was necessary to assign her to blower work as there wasn't enough checking work to keep her occupied ; that during her second week on blower work she again complained to Strozina, telling him, "Well, look at all the work all over the floor I can check, why don't they put someone else on the blowers?", and that Strozina replied, "I don't know, you just have to go on because that 's Mr. Frankel's orders." Concerning her last day of work on April 12, Palermo testified as follows: Well, I worked on the blowers for two weeks, and April 12 I went in and my bench was piled again, and I asked Eddie "How come I have to go on the blowers again, I've been on it enough? Two weeks is enough, it's strenuous work, and I can't do it." So, he said, "That's Mr. Frankel's orders, he wants you to go on the blowers." So, I went up to Frankel and I told him, "How come I had to go on the blowers?" I says, "I went on two weeks and that was enough for me, give someone else a chance." And, he said, "I want you on the blowers." And, I said, "Well, Frankel I can't. It's strenuous and my back hurts, and I get very tired." And, he said, "Powell is working on the blower," and I said, "She was hired for the blower, and I wasn't hired for the blower, I was hired for checking." And, he said, "She does piece work," and I said "I don't want piece work," and he said, "I'll give you piece work," and I said, "I don't want piece work," and he said, "If you don't want to do it, go home," so we [Palermo and Pellegrino] punched our cards and went home. Pellegrino also testified that she worked continuously on blowers and did no check- ing between March 28 and termination of employment on April 12. However, she testified that Des Roches worked once on the blowers during that period of time. Pellegrino testified that her work in the mixed bag department was on "grandin" bags; that she observed Des Roches working on these bags after March 28; that each morn- ing when she reported to Strozina "my bench was piled [with grandin bags] and they had about three or four trucks;" that she "constantly" complained to Frankel over being assigned to the blowers ; and that "he didn't say anything and just nodded his head and told me to work on the blowers ... but he wouldn't give me any satisfaction on why I had to go on the blowers when I had my own work to do." Concerning her termination of employment on April 12, Pellegrino testified to the following: I went back to my bench, and Edward Strozina told me Mr. Frankel wanted me up to the blowers, so I went to Mr. Frankel, and he told me to work the blowers, and I talked up to him and said , "Mr. Frankel, this is getting sickening, don't you think I was on the blowers long enough? I had my own work, and you took me off to put someone on my work, and she could have done the blower work just as well as I did." He said, "The other girls are on the blowers," and I said, "Yes, but all of them that are here now were hired for this job, and they are on piece work." And, he said, "If that is what you are coming to, I will put you on piece work," and I said, "No." He said, "If you don't want to do the work, go home," so I punched out. Frankel denied that he told Palermo and Pellegrino "to go home" or that they were discharged. He also denied that he offered them piece work. He testified that they. told him that they did not want to work on the blowers, and that he explained to them that there was not sufficient work in the mixed bag department to keep them occupied. Employee Michael Gobriella testified that he overheard the conversation between Frankel, Palermo, and Pellegrino on April 12. In this connection he testified, "They asked Mr. Frankel `What do you want us to do?' and he said `seeing they haven't got any work, it is slow, that is all we got to do, go on the blowers. Go right to work.' .. Their answer was `why should we?' and he said `That is all we got. The work is slow.' So Dottie said to Marie `Let's punch out,' and they told Mr. Frankel to stick it, and they punched out and walked home." Gobriello denied that Frankel told Palermo and Pellegrino "to go home." Frankel further testified to the effect that during the 2 weeks before April 12 Palermo and Pellegrino did some checking work ; that Des Roches performed some work on the blowers during that time; that he alone was the one who decided when to assign checkers to blowers and which checkers were to be so assigned ; and that checkers were transferred to blowers "in order to keep the work up" and when the work in their departments was slack . Daily production records, which were main- tained by Foreman Strozina for the period from March 28 to April 12 were received in evidence. A summary of the hourly and daily blower work as shown by these records is as follows: CARL BURWICK AND COMPANY 643 Palermo Pellegrino Des Roches 3-28------------------------------- 0------------------------- 0--------------- - ------- 0 3-29------------------------------- 0-------------------------- 0------------------------- 0 3-30------------------------------- 2------------------------- 0i------------------------ 3 3-31------------------------------- 536------------------------ 43 ----------------------- 4 4-1------------------------------- 0-------------------------- 0-------------------------- 336 4-2------------------------------- 0-------------------------- 0------------------------- 0 4-4------------------------------- 0-------------------------- 0-------------------------- 0 4'5-------------------------------- 536------------------------ 43t------------------------ 0 4-6 -------------------------------- All day------------------- 64------------------------ 0 4-7-------------------------------- -----do-------------------- All day------------------- 1 4'8-------------------------------- -----do--------------------- 0------------------------ 234 4-11------------------------------ -----do--------------------- All day------------------- 0 4-12------------------------------- Assigned to blowers------- Assigned to blowers------- 0 With respect to the alleged violation of Section 8 (a) (4) of the Act, the evi- dence discloses that during about the middle of March 1955, Palermo and Pellegrino gave affidavits to Field Examiner Joseph Barry; that Barry visited the Respondents' office on March 23 in order to question employees; that at the time Barry ques- tioned the supervisors, including Strozina, in the presence of Hyman Burwick; that Strozina was questioned by Barry concerning threatening statements that he was alleged to have made to undisclosed employees; that Strozina denied the statements attributed to him; and that Strozina assumed that the statements with which he had been confronted had come from employees in his department. It has been found above that Strozina's remarks, made in the presence of Palermo, Pellegrino, and Des Roches, contained threats of reprisal. I find that the General Counsel has failed to prove that on and after March 28 Palermo and Pellegrino were assigned "to more arduous and less agreeable work" because of their union membership and activity and because they gave affidavits to an agent of the Board, as alleged in the complaint. The evidence shows that before the advent of the Union they worked 1 or 2 days per week on the blowers, and that the Respondents continued to assign Palermo to such work even though she ob- jected to it. I credit the Respondents' production records. These records show, contrary to the testimony of Palermo and Pellegrino, that the former was not as- signed to full days on the blowers until April 6 and the latter until April 7. Pelle- grino did not work on April 8. Also contrary to their testimony, Des Roches worked for parts of 5 days on the blowers during the time in question. At best, the record reveals that Palermo worked 4 full days on the blowers and again was assigned to them on the day her employment terminated. As pointed out in the Respondents' brief, a weekend intervened after the third full day. While it appears that Palermo and Pellegrino performed more than the usual amount of blower work on and after April 6, especially Palermo, nevertheless such work was part of their regularly assigned duties. Taking into consideration the general decline in the Respondents' business and the short period of time during which this abnormal blower work occurred, I do not believe that an inference of discrimination would be justified. Further, in regard to the 8 (a) (4) allegation of the complaint, it is to be noted that Frankel, not Strozina, made the decision with respect to the transfer of checkers. I find that Palermo and Pellegrino quit their jobs on April 12 and that they were not discharged, constructively or otherwise. In so finding, I credit Frankel's de- nials of the statements attributed to him by Palermo and Pellegrino during their conversation on April 12. F. The Committee As related and found above, during the week ending March 25, 1955, Respond- ents granted wage increases to all employees, ranging from 5 to 15 cents per hour. Beatrice Benoit testified that she had been in the employ of the Respondents for 19 years; that she worked as an "inspector" in the eastern department under Foreman Falcone; that on rare occasions she supervised the department during Falcone's absence; that "after working hours" she gave Hyman Burwick a "note" in which she asked for a wage increase; that a few days later Burwick answered "for me to get whoever I wanted to go downstairs and have a conference with him"; that she then formed "a group" and during lunch hour they discussed the possibility of ob- taining a wage increase; that the group consisted of herself, Ellen Bausis, Rose Feraco, Eva Feraco, Walter Juskovitch, and Michael Gobriella, each representing 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD different departments; that shortly after receiving Burwick's answer and at sometime during March the group met with Burwick and asked him to grant the employees a wage increase; that she and Juskovitch talked for the group; that a wage increase was the only subject discussed at the meeting; that Burwick told the group that he would consider the request but that he could "make no promises"; that "Class A and Class B" raises were not discussed at the meeting; that the group had no further meetings with Burwick; that thereafter on her own initiative she told the employees in her department about the meeting with Burwick; that some weeks after the meet- ing she and the employees in her department received wage increases; and that the group no longer functioned or met, except as individuals, after its meeting with Burwick. At the hearing the parties stipulated as follows: Eva Feraco, if she appeared at this hearing, would testify as follows: That in the first talk with Mr. Hyman Burwick, concerning which Beatrice Benoit testified here yesterday, there was some talk of classifying the girls into Class A and Class B, that the girls in Class A would consist of the better workers and that they would receive an increase of 5 cents more than the in- crease which would be given to the girls in Class B; that Miss Feraco would testify that during the Korean War she acted as forelady in the mixed bag department taking the place of Edward Strozina who was in the military service, and that her position in this sense terminated when he returned from the war in 1953, ever since which time she had been employed as a checker in the mixed bag department. It is stipulated that she would further testify that at this meeting only raises were discussed and that Mr. Hyman Burwick said that he would consider what had been discussed at this meeting. The next day Eva Feraco went around and told the girls in her department about the talk and asked what they thought of the Class A and Class B idea. After she spoke to the girls, Eva Feraco, Miss Bausis, Rose Feraco, and Beatrice Benoit, each one, came down, pretty close to one another, to tell Mr. Hyman Burwick that the girls liked the Class A and Class B idea. Mr. Burwick said that he would consider it . he would let them know. The group decided, Miss Feraco would testify, that they would meet with Mr. Burwick again if it was not satisfied with working conditions or if it had any other similar suggestions. Mr. Burwick did not participate in any conferences of the group leading to this latter decision on its part. It is further stipulated that Eva Feraco would testify that there was another meeting of the group with Mr. Burwick in the latter part of April, 1955, at which there was a discussion of Blue Cross-Blue Shield, and that nothing had been settled on the point but that there had been a discussion and that Miss Feraco told this to the girls in the mixed bag department. I credit the stipulated testimony of Eva Feraco. Except that it is in conflict in some respects with that of Benoit, it stands uncontradicted in the record. Further, Benoit did not impress me as a reliable witness. In my opinion, the evidence is insufficient to hold that the members of the Committee, or any of them, were supervisory employees within the meaning of the Act. However, I find that the Respondents during March 1955, recognized and negotiated with the Committee as the exclusive representative of the employees while the petition filed by the Union in Case No. 1-RC-3912 was pending, and thereafter granted the employees wage increases as a result of said negotiations. I find such conduct to be violative of Section 8 (a) (2) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in con- nection with the operations of the Respondents set forth 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 com- merce and the free flow of commerce. V. THE REMEDY Having found that the Respondents have engaged in unfair labor practices, the Trial Examiner will recommend that they cease and desist therefrom and take cer- tain affirmative action designed to effectuate the policies of the Act. MONTGOMERY WARD & CO., INCORPORATED 645 Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. American Federation of Grain Millers , AFL, and the Committee are labor -organizations within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondents have engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 3. By recognizing and dealing with the Committee as the exclusive representative -of their employees while the petition filed by the Union was pending, and by grant- ing wage increases as a result of such negotiations , the Respondents have engaged in unfair labor practices within the meaning of Section 8 (a) (2) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] Montgomery Ward & Co., Incorporated and Retail Clerks Inter- national Association , Local Union No. 1687, AFL-CIO. Case No. 3-C-4-825. February 29,1956 DECISION AND ORDER On April 18, 1955, Trial Examiner Arthur E. Reyman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Interme- diate Report attached hereto. The Trial Examiner did not find as unfair labor practices other conduct alleged in the complaint to be un- lawful. Thereafter, the Respondent and the General Counsel filed -exceptions to the Intermediate Report together with supporting briefs.' The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings ,z conclusions, and recommenda- tions of the Trial Examiner, with the following additions and modifications. 1 The Respondent also requested oral aigumeut In our opinion the record and the exceptions and briefs fully present the issues and the positions of the parties Accord- ingly, the request is denied 3In the section of the Intermediate Report entitled "Union organization," the Trial Examiner inaccurately referred to the date that the Union filed a representation petition as February 16, 1954 Earlier in the Intermediate Report , under the section entitled "Preliminary findings," the Trial Examiner correctly stated that the Union filed its peti- tion on July 16, 1954 We coriect the Febiuary date in the Intermediate Report to road July 16, 1954 115 NLRB No. 92.