Fiss Corp.

In the Matter of Fiss CORPORATION and POCKETBOOK WORKERS UNION OF NEW. YORK, LOCAL No. 1 and INTERNATIONAL LADIES' HANDBAG, POCKETBOOK AND NOVELTY WORKERS UNION, AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR, PARTY TO THE CONTRACT Case No. C-2116.-Decided August 14, 194 Jurisdiction : leather goods manufacturing industry. Unfair Labor Practices Interference, Restraint, and Coercion: executing contract with its "Employees" in derogation, of Act'; unlawfully rendering assistance to affiliated organization by permitting. solicitation of membership, on company premises ; executing closed-shop contract with affiliated organization in advance of employee organi- zation ; allegation that employer moved its operations to avoid collective bar- gaining,. dismissed. Discrimination: discharges of seven employees for union activities. Collective Bargaining: majority established by designation in petition-refusal to bargain held not-justified by existence of illegal contract with assisted affiliated organization. . Remedial Orders : abrogation of illegal contracts with "Employees" and with affiliated. organization ; order to bargain collectively ; reinstatement of dis- charged employees with back pay. Unit Appropriate for Collective Bargaining :' all production employees at em- ployer's plant except salesmen and supervisory and clerical employees-experi- enced and trusted employees who instruct other employee's included in unit. Mr. Mark Lauter, for the Board. Mon f ried c , Mon f ried, by Mr. Richard M. Mon f rigid, of New York City, for the respondent. . Roudin, Cohn d Glickstein, by. Mr. Sidney Elliott Cohn and Mr. Abraham L. Shipiro, of New York City, and Mr. Ossip J. Walinsky, of New York City, for the Union. . Mr. Matthew .11. Levy, by Mr. David Halper, of New York City, and Mr. Max H.. Frankle and Mr. A. S. Jaffe, of New York City, for the International. Mr. Eugene R.. Thorrens, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASED Upon a second amended charge duly filed on June 24, 1941,1 by Pocketbook Workers Union of New York, Local No. 1, herein called 1 The original charge was filed on December 20, 1940 ; the. amended charge on January 15,1941. ' 43 N. L. R. B., No. 19. 125 126 ..DECISIONS OF NATIONAL LABOR RELATIONS BOARD the, Union,2 the National 'Labor Relations Board, herein called. the . Board, by the Regional Director for the Second Region (New York City), issued its complaint, dated June 24,.1941,.against.FissCorpora-- tion, Jersey, City, New Jersey, 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 (1), (3),. and (5) and Section 2 (6) ad (7) of the National Labor Relations Act,. 49 Stat. 449, herein.called the Act. Copies of the complaint and notice of hearing thereon were duly served ,upon,.the respondent and the' Union, and tip on Internatibnal Ladies' Handbag, Pocketbook and Novelty Workers Union, affiliated with the American, Federation of Labor, herein'called the International, a labor organization alleged in 'the complaint to have entered into an illegal - collective. bargaining agreement with the respondent. With respect to the unfair labor practices,. the complaint alleged in substance : (1) that on or about November 14, 1940; and all times there- after, the respondent refused to bargain collectively with the Union asthe.exclusive representative of its employees in an appropriate unit,. although a majority of said employees had designated the Union as. -their rep resentative ;for such purpose; (2) that on or about November 14, 1940, and thereafter, the respondent urged, persuaded, and warned -its employees to refrain from becoming or remaining members of the Union and threatened its employees with discharge and other reprisals. if they assisted the Union, or if they failed to become or remain mem- bers of the International; (3) that on•or about December 10, 1940,, the respondent entered into a written agreement with the International notwithstanding that the International had been assisted by unfair -labor practices of the respondent 'and -notwithstanding that the In- ternational was not then the exclusive"representative of the employees in the unit covered by the agreement, within. the, meaning of Section .9 (a) of the Act; (4) that on or. about December 15, 1940, without prior notice to the Union or its employees, the respondent moved, its, machinery and equipment from its plant in New York City, to its plant in Jersey City, New Jersey, and discontinued operations at the .New' York City plant to avoid collective bargaining with the Union and to interfere with the exercise of rights guaranteed its employees under Section 7 of the Act; (5) that on or about December 15, 1940, the respondent discharged Sol Lowenstein, Adolph Hoenig, Joseph' Interstein, Ernest Ungar, Carrie Meyer, and Joseph Altman, and has since refused to reinstate, them, 'for the reason. that they joined . and assisted the Union and engaged in concerted activities with other 2 At the hearing the Trial Examiner granted without objection, a motion of counsel for the Board to amend--the' complaint by changing it's erroneous designation 'as Pocketbook Workers Union, Local No. 1. FISS CORPORATION. 127 .'employees of the respondent for the purposes of collective. bargaining and other mutual aid and protection; and (6) that by, these acts the respondent. interfered with, restrained, and coerced its employees. in the exercise of the rights guaranteed in. Section 7 of the Act. On July 7, 1941, the respondent filed its answer, admitting certain -allegations of the complaint concerning its corporate' structure, and business activities and that it-had entered into a collective bargaining agreement with the International, but denying that it had engaged in. the alleged" unfair.labor practices.a Pursuant to notice, a hearing was held. in New York City from July 31 through August 11, 1941, before A. Bruce Hunt, the Trial ..Examiner duly designated:, by the Acting Chief Trial Examiner. The Board, the resporidelit, the Union, and the-International were represented. by counsel and participated in the. hearing.- Full op- portunity to, be heard, to examine.and cross-examine witnesses,. and to introduce evidence bearing on the issues was afforded all. parties. At the opening of the hearing, counsel for the International entered a special appearance contesting the-Board's jurisdiction on the ground, among others, that the International had not been made a party to the proceeding as' required by Article II, Section 5, of ahe Board's Rules and Regulations-Series 2, as amended. The Trial ' Examiner there- upon allowed a,motion by counsel for the Board to amend the caption .of the complaint to include therein the name of the International. The respondent and the International then moved that the complaint be dismissed on the ground of defect of parties, asserting, inter alia, that Pocketbook Workers Union, Local No. 2, herein .called Local No. 2, an affiliate of the International, should have been made a party to the proceeding.4 The Trial Examiner denied the inotion.to dismiss and o'verruled' the special appearance. Thereafter the International filed its answer in which it admitted that it had entered into a col- lective bargaining. agreement with the respondent but denied that. it had been assisted by unfair labor practices. During the hearing' counsel for the Union moved to strike those portions of the Interna_ tional.'s answer asserting that the Union obtainedodesignations from employees by false and fraudulent representations as to'its affiliation. ' On the same day the respondent filed a motion for a bill of.particulars but withdrew the motion at the commencement of the hearing. 4 Local No. 2,-which admits to membership employees- of the respondent and of other employees engaged in the leather goods, manufacturing industry in and about Jersey City, New Jersey, is,notmentioned' in the body of the written agreement between the-respondent and the International. The name of Local No. 2 appears only on the last page of the agreement opposite the signatures of the respondent and the . International. The mere'" annexation of the name,of Local No. 2 under such circumstances does not make it a party to the agreement. - e On August 5, 1910, the International submitted 'to the Trial Examiner an unverified .copy, of its answer, but withheld the original pending verification. On August 11, 1940, .the International filed its verified answer. 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD' The Trial Examiner ` denied the motion. At the close of the Board's case, and again at the close of the hearing , the respondent and the International moved to dismiss the complaint upon the grounds there- tofore urged and upon the further ground that the proof' failed to sustain the allegations of the complaint . The Trial Examiner denied the motions made at the close of the Board's case and reserved ruling, upon those made atthe close of the ,hearing. At the close of the hear- ing, the Trial Examiner granted .a motion of counsel for the Board to conform the complaint to the proof. After the hearing, the respond- ent submitted a brief to the Trial Examiner: On October '8, 1941, the Union filed with the Chief Trial Exam- iner a petition for leave to reopen the hearing for the purpose of adducing testimony concerning alleged additional unfair labor.prac- tices. Pursuant .to notice a hearing on the petition was held on October 10 , 1941, at New York. City, before A. Bruce Hunt, the Trial Examiner duly designated by the Chief Trial Examiner. The Board, the respondent, the Union, and the International were repre- sented by -counsel and participated in the hearing. At the com- mencement of the hearing , the respondent filed an affidavit in opposi- tion to the Union's petition . During the course of the hearing, counsel for the Board joined in the motion to reopen the record. Counsel 'for the International moved that he be permitted to appear specially. The Trial Examiner denied the motion . The Union filed with the Trial Examiner, over objection by the respondent and the International, a motion to amend. the complaint alleging that,' subse- quent to the initial hearing , the respondent engaged ed in unfair labor practices within the meaning of Section 8 ( 1), 3, and ( 5) of the Act. Counsel for the Board joined in the motion to amend the complaint insofar as it related to allegations within the meaning of Section 8 (1) and .( 5) of the Act., At the close of the hearing, the Trial Examiner granted the parties an opportunity to submit , in writing, statements as to their positions with respect to the motion to amend the complaint. . On October . 18,., 1941, the respondent and the International filed objections in writing to the motion to amend the complaint. On October 23, 1941, counsel for the Board filed a statement - joining in full in the Union's motion to amend the complaint. On October .23, 1941,. pursuant to Article 'II, Sections 7 and 13, of the Board's' Rules and Regulations-Series 2, as amended, the Trial Examiner entered an order amending the complaint . in accordance with We motion, and permitting the filing of answers to the complaint as ,amended. On October 24, 1941, pursuant to Article .11, Section 30, of said : Rules and Regulations , the Chief Trial Examiner entered an order reopening the hearing for the purpose of receiving evidence, with respect to the allegations of the complaint as amended. FISS CORPORATION 129 On October 31, 1941, the respondent filed with the Board a peti- tion for leave to appeal from the orders with respect to the amend- ment of the complaint and the reopening of the hearing. On No- ,vember= 4,' 1941, the International lodged with the Board 'a 'letter joining in the respondent's petition for leave to appeal. On Novem- ber 7, '1941, the Board entered an ' order denying the petition. With respect to the unfair labor practices, the amendments to the complaint alleged in substance : '(1) that on September 24,'1941, and thereafter, 'the respondent refused to bargain collectively with the- Union as the exclusive representative of its employees in, ah.appro- prite unit, although a majority of said employees' had' designated the Union as their representative; for such purposes; (2) )that on Sep- tember 24, 1941, the respondent"discharged Richard Rosenberg, and has since refused to reinstate him, for the reason that he joined or assisted the Union and 'engaged in' concerted activities with other employees of the respondent for the-purposes of collective bargaining and other mutual aid and protection; and (3). that on September 25, 1941, as a consequence of the alleged' unfair' -labor practices, the respondent's employees commenced a, strike which has continued since that date. On December '3 and 6, 1941, the respondent and the. International, respectively, filed their answers, denying the allegations set forth in the amendments to the complaint.; Pursuant to notice, a further hearing was held from December 8 to 19, 1941, at New York. City, before A. Bruce Hunt, the trial Examiner duly designated by the Chief Trial Examiner. The Board, the respondent, the Union, and the' International were represented by, counsel and participated in. the. hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence hearing on the issues was afforded all parties. At the. close of the Board's case, the respondent and the International moved to dismiss the amendments to, the complaint, and the International - renewed its motion made' at the conclusion of the first hearing to dismiss the complaint. The Trial Examiner, denied the motions to dismiss the amendments to the complaint, reserved ruling' upon the International's motion to dismiss as renewed at the December hear- ing, and deliiedwthe motion in his Intermediate Report. At the close of the hearing, counsel for the Board moved to conform the com- plaint,, as amended, to the proof with regard to minor matters such as na"mes,,dates, and places. The Trial Examiner granted the motion. The respondent and the International moved to dismiss the com- 6In its answer, the International also alleged that the agreement , described above, is an agreement between Local No: 2 and the respondent , and reasserted that Local No. 2 should have been made a'party to the proceedings. 481039-42-vol. 43--9 . 130 DECISIONS OF NATIONAL., LABOR RELATIONS BOARD plaint, as amended. . The Trial Examiner reserved ruling upon the motions at the hearing and denied them in his Intermediate Report. The International moved that its answer to the complaint, as amended, be amended to conform to the proof to include any defenses not affirmatively alleged. The Trial Examiner denied the motion. During the course of-the hearings the Trial Examiner made rulings on a number of other motions and on objections to the admission of evidence. The Board has reviewed the rulings and finds that no prejudicial errors were committed. The rulings are hereby .affirmed. After the hearing, on January 21', 1942, the respondent submitted a brief to the Trial Examiner. Thereafter,, the Trial Examiner issued. his Intermediate Report, dated February 21, 1942, copies of which were duly served upon. all the parties, finding that the. respondent had engaged in and was engaging in unfair labor practices, within the meaning of Section 8 (1), (3), and (5) and Section 2 (6)' and, (7) of the Act. He recommended,' among other things, that the respondent cease and desist from engag- ing in such practices; that it abrogate its contract with the Interna- tiohal; that it reinstate with back pay the seven employees named in the complaint as amended ; and that, upon request, it bargain with the Union. On March 27 and May 11, •1942, respectively, the Intern a- •,^. tional and the respondent filed exceptions to the Intermediate Report. .Pursuant to notice; a hearing for the purpose.of presenting oral argu- ment was held before the Board in Washington, D. C., on May 28, 1942. The respondent, the Union, and the International were represented by counsel and participated in the argument.' At the oral argument the respondent submitted a brief in support of its exceptions. The Board has considered the exceptions and briefs and, insofar as the exceptions are inconsistent with the findings of fact, conclusions of law, and order below, finds them to be without merit. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent, a New York corporation, was engaged in the man- 'ufacture and sale of leather novelties and related products from July 26, 1940, the date of its incorporation, to December 14, 1940, in New York City. Since December 16, 1940, the. respondent has, been en- gaged in such business in Jersey City, New Jersey. During the period of its operations in New York, the respondent purchased raw materials, consisting principally of genuine and arti-. ° At the oral argument before the Board, counsel for the International charged bias and prejudice on the part of the Trial Examiner. We find nothing in the record to support a finding that the Trial Examiner was biased or that he conducted the hearings in a man- ner prejudicial to the interests of the respondent or the International. FISS - CORPORATION / 131- ' ficial leather, cardboard, zippers; oil silk, and rubber sheeting, exceed ',ing $2,500 in value, or more than'one:half the total volume of materials'.' used by it during slid.period, from points outside that State. D'uring the.same period the respondent made shipments=of.,its.finished prod; ucts exceeding $8,000 in value, which constituted over three-,fourths of the respondent's -total sales during said period, to points outside the State of New York. - During the period from December 16, 1940, to June 24; 1941,. the' date of the first hearing, while engaged in business in New Jersey, • the respondent purchased materials exceeding $20,000 in .value,. or more than three-fourths of the' respondent's total purchases during ,said period, from points outside that State. During the same period the respondent 'made shipments of its finished products exceeding :$40;000 in value., or'more-than three-fourths of the, respondent's total sales during said period, to points outside the State of New ,Jersey. The respondent concedes that it was at its New York plant, and :has been at its New Jersey plant, engaged in commerce' within the meaning of the Act. II. THE ORGANIZATIONS INVOLVED Pocketbook Workers Union of New York, Local No. 1, affiliated Withi :[nternationa-l Ladies' Handbag, Pocketbook and Novelty Workers. Union of New York, is a labor organization admitting to member ship employees of the respondent. . International Ladies' Handbag, Pocketbook 'and Novelty Workers Union, affiliated with the. American Federation of Labor, is a labor organization admitting to membership employees of the respondent. - III. THE UNFAIR LABOR PRACTICES A: The -sequence of events 1. Events prior to the removal of the respondent's shop - The Union' began to organize the employees of the respondent's shop, then -located in New York City, about the middle of November. 1940. About November 14; 1940, three employees of the respondent, Sol Lowenstein, -Adolph Hoenig, and Joseph Interstein, visited Ben- jamin Feldman, an organizer for the Union, discussed with him var% oils' grievances of. the .respondent's employees, including alleged vio.= lations of the: minimum pay requirements of the' Fair-Labor Stand- ards Act of -1938, which became effective in October:-1940, and ex_ pressed to Feldman a.desire on the.part of the'respondeut's employees to become members of.the Union. Pursuant thereto,-beginning about. November 15' and extending to -December: 14, 1940, Feldman met with .132 DECISIONS OF NATIONAL; LABOR RELATIONS BOARD repi'eseritatives of the respondent and engaged in bargaining negotia- tions concerning the course of which there is conflict in the testimony. About. November 15; Feldman conferred with Emil Hulles, presi•- 'dent of the respondent, regarding. grievances of the employees and negotiation of a contract ' 'with' the Union. Feldman called Hulles' attention to the respondent's failure to pay the minimum wage.stand- ards required by law and induced Hulles to agree to make restitution to the employees for back pay due them. According to.Feldman's :testimony, he submitted to Hulles a proposed contract' in the form ordinarily used by the Union to cover production employees in the- leather, goods 'industry end, when ,Hulles voiced objection to the Union's wage scale, Feldman suggested that lie. again visit Hulles a -few ; days thereafter to permit him to study the provisions of the proposed contract in the meantime.' Two or 3 days thereafter; about November 17 or 18, Feldman again conferred with Hulles. On this occasion, Emil Fiss,-vice president of the respondent, as well 'as other 'management representatives, were also present' 'According to Feld- man's testimony, Hulles again, objected to the Union's proposed wage scale.einbodied ,in the ' specimen contract. Feldman further testified that Hulles asserted that the respondent should not be required to meet the union scale during the current business season because, of .the financial condition of the respondent and, in reply to Feldman's ,inquiry as to how much time the respondent required, to place its business upon a firm basis, Hulles stated that the respondent -"niust have until Februaal-y 1, 1941, before we could sign any union contract ,in.regard to such wages as you have asked in your contract." Ac- ,cording to Feldman, he agreed to submit` Hulles proposal to the Union. At the hearing Hulles denied that Feldman ever submitted, a proposed written contract or that Hulles ever agreed to enter into a contract with the Union at any, time.. In his testimony, however, . Hulles admitted telling Feldman, that the' respondent might "have to go out of business" since it had.sustained considerable losses and that it could. not afford to comply, with the wage provisions of the Fair Labor' Standards Act. We credit, as did the Trial Ekaminer, Feld- man's testimony. About November 25, 1940, Feldman again conferred with Hulles. On this occasion, according to Feldman'.s testimony, he notified Hulles 8 The respondent was then paying , its production workers generally approximately $14 a' week.' 'The' Union 's proposed contract called for substantially higher weekly wages, as for example,. first class cutters, $35.75, second . class cutters, $32, pocketbook 'makers' helpers , $23.31, operators , $26, cementers , examiners, and packers, $16, and general helpers, $14. a In the interim between , the,'first two meetings of union and. management represents- - tives, Hanes had reported Feldman's visit to Piss and had warned Piss , according to 'Fiss' undenied testimony, which we credit, as 'did the Trial Examiner, that "we couldn't or- ,ganize the place because we will be ruined ; if the shop; be unionized it .wouldn 't be any .Success . . . FISS ' CORPORATION .133 that the Union. had approved of his plan providing for the execution of a written contract on February 1,.1941, and inquired. whether. the respondent would grant pay .increases to the workers 'in the interim. Feldman. further testified that Hulles stated that the. respondent was unable'to giant the pay .increases but that "on February 1, 1941, we are going to sign a. union contract and will consider it as a. union shop in the interim"; and that he (Feldman) agreed to draft and submit to the respondent a letter embodying such an undertaking for Hulles' signature.10 Seidner denied having received such a -letter. We find 'it unnecessary, as did the Trial Examiner, to determine whether Feldman delivered the letter to the respondent. In 'any event, the respondent did not execute the proposed instrument. About November 26, 1940, Feldman again visited the respondent's shop and introduced Sol Lowenstein as the union shop committeeman to Vice-President Fiss. The next day, General Manager Seidner, according to Lowenstein's testimony, directed Lowenstein, who worked on the second floor 'of the building in which the respondent had its shop, not to visit the fourth , floor, where other employees of the respondent worked, and informed him that the purpose of the order was to preclude him from engaging in organizational activity in behalf of the Union. Seidner denied this. We credit, 'as did the Trial Examiner, Lowenstein's testimony. About November 28, 1940, Fi'ss, acting. under instructions from Hulles, informed Lowenstein that the 'respondent could not afford to pay union wages but suggested that the respondent desired to settle its labor difficulties "in.a nice way," and urged Lowenstein to enter into an agreement with the respondent in behalf of the employees. Lowenstein, accompanied by four other employees, Hilda Beamt, Adolph Hoenig, Joseph Altman, and Joseph Interstein, according to Lowenstein''s testimony, called upon Hulles to check the extent of Fiss' authority to bind the respondent and, Hulles, after' confirming Fiss' 10 Feldman testified that about November 30, 1940, he delivered to David Seidner, gen- eral manager , of.the respondent's shop , for, transmittal to Rulles a letter, dated Novem- ber 26, 1940, addressed to the respondent in the following form This is to confirm the verbal agreement reached between us on Monday, November 25th, to wit: . 1. On or about February 1st, 1941 your firm will sign a contract with the Pocketbook Workers Union of New York, the same contract as now obtains in all other leather novelty shops in the City of New York. 2. In the ' meantime, your firm will recognize the Pocketbook Workers Union of New- York as the sole'bargainiing agency for the workers in your'employ in' order that any-com- plaints or grievances which our members may present to the Union in the interim may be taken up for adjustment with your firm in the usual way. ' Very truly, yours, . ' BEN FELDMAN, Organizer. ...P. S.-Your acceptance . of this letter 'of agreement embodying our understanding; will be considered .biniding upon both parties. B. F. Accepted by Fiss LEATHER PRODUCTS. By --------------------- 134 DECISIONS- OF NATIONAL. •LABOR RELATIONS BOARD authority, stated . '. .. it would not have been necessary [for the employees] to go to the Union; [the employees] would have gotten [their] right just the same." Thereafter, Fiss and Lowenstein nego- tiated an agreement, dated November 28, 1940,11 providing for (1) overtime pay, (2) a ban against discrimination, (3) an increase in pay in the future "in accordance with the development of business," and (4), an undertaking by the employees, conditioned upon the respond- ent's performance of (1), (2), and (3) above, "not to further organize any employees of Fiss Corporation, nor to help further any such efforts of the. Union." 12 At the hearing Hulles gave somewhat inconsistent testimony. At one point he denied having had any conversation with Lowenstein with respect to. the November 28 agreement. He further testified that he was not present when Fiss delivered the agreement' to Lowenstein ; that he refused to sign, and informed' Lowenstein that: the, agreement was "unnecessary." Fiss testified, however, that he was directed by Hulles to deliver the instrument embodying the agree-' ment unsigned. , We credit, as did the Trial Examiner, the testimony of Fiss and Lowenstein. On December 10, 1940, the respondent entered into a written con- tract with the International providing-for a' closed shop and a wage scale approximating that currently established by the respondent. Later on the same day, the respondent entered into a"lease for quarters for its shop in Jersey City. On Saturday, December 14, 1940, without prior notice, to the. employees or.to the-Union, the respondent moved its, equipment and other paraphernalia to its newly leased Jersey City quarters. On the same day the respondent sent to all its employees, except those engaged' in moving the shop, written notices not to report for work until noti- fied that the respondent "will resume operations." On: December 16, 1940, the respondent commenced operations in Jersey City with a staff, which included six new employees on its pay roll for the week ending., December 21, 1940. The respondent failed to recall to.work how- ever, six old employees, Lowenstein',' Hoenig, Interstein, Meyer, Ungar, and Altman. A representative of the International, Charles Mutter,, appeared at the plant on the first day of operations in New Jersey and solicited membership among the employees inside the. shop with 'the knowledge and acquiescence of the' respondent. On December 20, The instrument is captioned "Agreement , as of above date between Fiss Corporation (as'the employer) and the employees of said firm." ,12 Simultaneously with the making of the agreement dated November 28, 1940, Fiss agreed to grant pay increases to three employees. The respondent repudiated its agree- ment with respect to the increases , and on December 4, 1940, Lowenstein notified Fiss that the written agreement - was no longer operative . Between November 27 and December 3, 1940, no employee of the respondent applied for membership in the,Union. . ' Indeed, on November 29 or 30, Fiss asked Lowenstein whether he had resigned from membership in the, Union. ' FISS CORPORATION 135 1940, the International produced applications for. membership in the International, thus establishing its majority status to the satisfaction of the respondent, and the respondent and the International redated the contract from December 10, 1940, to December 20, 1940.13 2. Events in 1941 After the resumption of operations in Jersey City, the respondent operated under.its closed-shop contract with the International. Rich- ard Rosenberg, an employee, acted as the International's shop chair- man in the respondent's plant until about September 1941, when he was replaced by Edward Rohrlack, an employee, allegedly at the instance of employees who objected to ' Rosenberg as shop chairman because of the supervisory nature of his duties. On September 12, 1941, Rosenberg was discharged from employment allegedly for spoil- ing material in the work process. Dissatisfied with the efforts of the International in representing the employees, a committee, including Rosenberg, consulted the Union. Among other things, the Union sug- • Bested that the International's contract with the respondent in effect prohibited the discharge of an employee for spoilage of material unless amounting to sabotage, and advised that Rosenberg seek the help of the International to obtain reinstatement. At Rosenberg's request, the International intervened on his behalf and the respondent reinstated Rosenberg on September 17. Subsequently, pursuant to the Union's suggestion, Rosenberg arranged for a meeting of the respondent's employees to be addressed by union representatives. At the meeting, on September 19, 1941, all the respondent's production employees, ex- cept about three, signed a petition designating the Union as .their rep- resentative to bargain with the respondent. Word of the meeting reached the International which sent representatives' to the respond- ent's shop to investigate. On September 24, when the International's representatives visited the respondent's shop to discover the cause of the unrest among the employees, Rohrlack exculpated himself. and informed the International's representatives that Rosenberg was re- sponsible for the employee assemblage on September 19. Mutter told Rohrlack, according to Rohrlack's undenied testimony, -which we credit as did the Trial Examiner, that Rosenberg was a "trouble maker" who "has got to leave the shop." At the end of the day, under circum- stances more fully described below, Rosenberg was again discharged, this time allegedly because his production output was not sufficiently "The contract, redated December 20, 1940,.as set forth above, was signed by Fiss, who severed active connections with the respondent about January 1, 1941. At the request of the International, which desired the contract to be executed by a current officer of the respondent,' the contract was reexecuted with the same provisions contained therein on January 22, 1941. As reexecuted, the contract was to expire on January 1, 1942. 136 DECISIONS OF NA'17ONAL LABOR RELATIONS BOARD high and because of alleged insubordination. That night, September 24, a, meeting took place between management and. union representa- tives. The Union demanded exclusive recognition as bargaining rep- resentative of the respondent's employees and Rosenberg's reinstate- ment, and threatened to strike unless its demands were granted. The respondent rejected the Union's demands. Virtually all the respond- ent's employees failed to report for work the next day. Thereafter, a few employees returned to work and the International supplied the respondent withreplacements for those who had ceased work on Sep- tember 25 and did not return to work. On September 26, 1941, counsel for the Union in this proceeding wrote to the respondent and advised it, among other things, that the Union was still willing to meet with the respondent for the purposes of collective bargaining. Under date of September 30, 1941, counsel for the respondent replied, among other things, that the respondent "can not properly" bargain collec- tively with the Union in view. of the existence of the contract between the respondent and the International. B. The execution of the contract between the respondent and, the International; the removal of the respondent's shop; and the dis- charge of six employees As indicated above, the complaint alleges that the respondent moved its shop from New York to New Jersey for the purpose of avoiding collective bargaining with. the Union, and that it assisted the Inter- national by unfair labor practices, including the execution of the closed-shop contract with it at a time when the International was not the representative of the respondent's employees within the meaning of Section•'9 (a) of the Act. The complaint also alleges that the re- spondent discharged six- employees at the time of the shop removal because of their union activities. The respondent asserts that it moved its 'shop for economic reasons and that it did not recall the six em- ployees for work in New Jersey because work was unavailable for them. While- admitting the making of the contract with the International, the respondent relies upon its validity, contending that , it did not assist the International by any unfair labor practice, that the contract was entered into subject to the condition that it would not become operative until the International had attained majority status, and that the International satisfied the condition at the time the contract was redated on December 20, 1940, by production of proof of majority. The, respondent started in business about June 1940. From about June to October 1940, it occupied quarters on the second floor of a building in New'.York City under a lease expiring on January' 31, 1941., Because of expanding business, in October 1940, the respondent leased on a short-term basis additional space on the fourth floor of the same FISS CORPORATION 137 , building. However, the respondent found it inconvenient to operate .its business on floors separated by quarters occupied by another busi- ness establishment. ' The respondent • first began to search for new quarters shortly prior to the Union 's appearance in'the plant. Since it was unable to find suitable quarters in New York City at a rental that it desired to pay, the respondent turned to a nearby area in New Jersey for a location-for its business . Shortly after the Union first appeared on the scene , the respondent began to search for shop quarters in Jer- sey City. As above set forth, on December 10 , 1940, the respondent entered into the closed-shop contract with the International embody- ing approximately the scale of wages then established by-the respond- ent in its business and later , on the same day, the respondent nego- tiated a lease for shop quarters in Jersey City. At the time of the execution of the contract , the International had not been designated as collective bargaining representative by any of the respondent's em- ployees. The respondent contends, however, as its witnesses testified, that it had made an oral agreement with the International , simultane- ously with the execution of the contract, to the effect that the contract would not become operative until the International attained majority status, and that the International produced appropriate authoriza- ion cards signed by more than a majority of the respondent 's employees when the contract was recTated on December 20, 1940. Assuming arguendo ,that the contract was made subject to said con- dition, its execution itself constituted an unfair labor practice within the meaning of Section 8 (1) of the Act-14 The respondent was then well apprised of the existence of a question concerning representation since the Union had presented its claim for collective bargaining rights. On the other hand, the International had not been designated as collective bargaining representative by.any employee of the re- spondent and there was nothing which might reasonably have led the respondent to believe that its employees desired to be represented by the International. The execution of the contract placed the employer's stamp of approval upon the International . As we recently stated in the Engelhorn case :15 - Exclusive recognition of a labor organization is a potent form of assistance ; the more so, when such recognition is coupled with a provision requiring membership in the organization as a condi- tion-of employment. Moreover, as set forth above, when the respondent commenced opera- tions in New Jersey', on December 16, 1940, an International represent- 14 Cf. Matter of John Bngelhorn cC Sons and Packinghouse Workers Organizing Com-. mittee, affiliated • with the Congress of Industrial Organizations, et at:,.42 N. L. R. B. 866. _ 15 Cited supra, footnote 14. . 138 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD ative appeared at the plant and solicited memberships among the em- ployees inside the shop with the approval of the respondent. Under the circumstances, the respondent's action in recognizing the Inter- national, though conditional at the outset, evidences. a flagrant disre- gard of the provisions of the Act. We accordingly find that by per- mitting the International to solicit membership in the plant and by entering into the contract recognizing the International as the exclusive representative of its employees and requiring them to become members of-the International;,the respondent interfered with, restrained, and coerced its employees in their choice of representatives and thereby assisted the International. We are of the opinion, however, that the respondent moved its shop from New York to New Jersey for economic reasons and not,to evade its duty to bargain collectively with the Union. The respondent's lease in New York was to expire on January 31, 1941. It is clear that the respondent found it inconvenient to operate its business in the New York shop because of its size a.nd' arrangement and that, the respondent required new quarters to satisfy the needs of its expanding business. The New Jersey shop, on the other hand, met the respondent's space requirements and, in addition to a purchase of installed equipment at a saving,' the respondent obtained the new quarters at a rental rate lower than it would have had to pay for comparable quarters in New York City. Under the circumstances, and particularly since the re- spondent did not move its shop outside the metropolitan area of New York City,17 we will dismiss the allegation of the complaint that the respondent illegally moved its shop from New York to New Jersey. The allegation of the complaint with respect to the discharge of the 6 named employees in connection with the removal of the respondent's shop, however, stands upon a different footing. As set forth above, shortly after the first meeting between Hulles and Feldman, Hulles stated to Fiss that the respondent would be ruined if the Union suc- ceeded _in organizing the employees. Thereafter, the respondent promptly took measures to stem the drift -toward union organization. Instead of negotiating in good faith with the Union on behalf of its members, the respondent' induced Lowenstein, the Union's shop chair- man, acting without the knowledge of union officials, to enter into the agreement dated November 28, 1940, purportedly on behalf of the respondent's employees, in which the employees promised "not to further organize nor to help further any such efforts of the Union," thus 16 The respondent bought the equipment from the tenant who had operated a leather goods factory at the New Jersey premises prior to the respondent's leasing of the Jersey City plant. The tenant, who had had contractual relations with the International, at the instance of the respondent, arranged a meeting between the respondent and the Inter- national which led to the execution of the contract. 37 Jersey City, located on, the opposite bank of the Hudson River, can be reached from New York City by means of a subway on payment of a small charge. FISS CORPORATION 139 -relinquishing their right to self-organization. The making of such, an agreement is proscribed by the Act and constitutes interference with, restraint, and coercion of the respondent's employees in the exercise of the-rights guaranteed in Section 7 of the Act. Within a few days after ,the execution of the November 28 agreement, Fiss asked Lowen .- stein whether he had resigned from the Union, and the. respondent, for the avowed purpose of interfering with the Union's organization movement, refused to' permit Lowenstein to go to the portion of the shop located on the fourth floor, although his employment duties had previously required his presence there .at times. By such conduct the respondent. further- interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed in Section 7 of the .Act. During the period between November 15 and December 15, 1940, Fiss conducted an investigation in the shop to learn the identity of the .employees who had joined the Union by questioning individual em- ployees. By December 14, 1940, 12 of the respondent's 26 production employees had joined the Union. Among these were Lowenstein, Meyer, Altman, Interstein, Hoenig, and Ungar. At the time of mov- ing the shop, management representatives did not discuss affirmatively the selection of employees for work in New Jersey. Hulles, , however, decided that the 6 employees named in the complaint would not be recalled. Lowenstein, who had ' become shop chairman, Interstein, . and Hoenig, were the employees who initiated the movement for union organization of the, respondent's employees. Meyer and Ungar were among those who confessed to Fiss that they belonged to-the Union. Fiss testified that he knew that the 6 named employees were among. those who were members of the Union. During the week ending December 21, 1940, the first week of operations,in New Jersey, the respondent recalled to work 4 of the 12 union workers, who promptly joined the International and hired 6 new employees, and failed to employ 8 union workers, including the 6 named in the complaint,"' and 4 non-union'.employees. Subsequently the respondent recalled 1 of the 4 non-union workers, who, promptly joined the International.. In support of the respondent's contention that no work was available in New Jersey for' the 6 named employees, its witnesses testified as follows. ' The work of 2 of the employees, Lowenstein' and Hoenig, was dependent upon the operation of a so-called clicking machine, a device for cutting leather. Hoenig's job was to operate the clicking machine.. He also 'cut leather by hand. Lowenstein had devoted approximately half of his working time preparing materials for further processing on the machine. He also cut by hand leather which, thereafter, did.not is There is no . explanation in the record for the absence of an 'allegation of discrimina'- tion with respect to the two remaining union members who did not obtain employment, with the respondent in New Jersey. . 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD require further processing on the clicking machine. Because of need 'for repairs, the machine was not installed in the New Jersey plant until about January 15; 1941. At that time Richard "Rosenberg, who had not belonged to the Union, was shifted to Hoenig's job ancl, at an unstated time, a new employee was hired to replace Lowenstein. No specific employee was hired to replace Interstein, a bench worker, who also operated a sewing machine part time. However, we find no merit in the respondent's contention that no work was available for the 6 employees in the New Jersey shop. In general, the respondent carried on in New Jersey operations similar to those formerly conducted in New York. All 6 employees were relatively unskilled workers 'who received about 35 cents an hour while employed in Nev, York. The respondent's pay roll for the week ending December 21,1940, the first pay roll for New Jersey operations, as above indicated, lists 6 new 'employees, 'unclassified as to'jobs, but all in the 35-cent per hour wage 'class. . Thereafter the respondent hired additional new. employees. As of September 20, 1941, the respondent employed at least •36 pro- duction workers. Yet the respondent has never recalled to work the 'd named employees,b9 although in its letters to individual employees, t aced December 14, 1940, the respondent indicated that it would fur- nish work'to them when the shop resumed operation. Under the cir- cumstances, we do not believe that the respondent in the operation of its New Jersey shop had no work for which the 6 named employees were qualified. Clearly, when the respondent resumed operations in New Jersey, work was available for the 4, other than Lowenstein and Hoenig. Even during the period. when the clicking machine was in ''disrepair, the respondent required the services of cutters who operated, by'hand methods, as did Hoenig and Lowenstein and, so far as appears, they were more experienced in the leather goods industry than newly' hired workers who-were employed as general helpers, in substantially the same pay bracket formerly occupied by Lowenstein and Hoenig. After the clicking machine, was repaired, the respondent indicated that work was available, at least for Hoenig, ,since it offered his job to him conditioned, however, upon affiliation with the International. Rather we are convinced that the respondent discharged the 6 named employees as an integral part of its plan to forestall organization of its 'employees in' the Union which it opposed because of its economic -demands. , Accordingly; we find that the respondent discriminated in regard to' the hire and tenure of employment of Sol Lowenstein, Adolph Hoe- .19 Sometime in January 1941 , pursuant to a conversation between the respondent and .a,-Board Field Examiner , Hoenig and-Meyer :appeared at the respondent 's New Jersey shop .and requeste(I work: 7The, respondent indicated that they would be required to join the international as a condition of employment , and they did not return to work. FISS CORPORATION 141 nig, Joseph Interstein, Ernest Ungar, Carrie -Meyer, and Joseph Alt- man,,who were discharged by the respondent-because of their union activities, thereby discouraging membership in the Union, and en-. couraging membership in the International and interfering with, re- straining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 0 . C. The refusal to bargain The complaint and the aniencllnent thereto allege that the respond- ent refused to bargain collectively with the' Union, particularly on or about November; 14, 1940, and September 24, 1941, and at all times thereafter. The respondent *denies that it ever refused to bargain with the Union within the meaning of Section 8 (5) of.the Act. 1. The appropriate unit .. The complaint alleges that all production employees of the re- spondent at its New York plant, exclusive of salesmen and super- visory and clerical employees, constitute a unit appropriate for the purposes of collective bargaining. The amendment to the complaint alleges that -a similar unit at the respondent's New Jersey plant is ap- propriate.. The respondent denies these allegations. Except as noted below,20 no eiidence was introduced with respect to the issue of the appropriate unit, and the respondent does not. claim that any other unit is appropriate. Accordingly, we find, as did the Trial Examiner, that the produc- tion employees, of the respondent; exclusive of `salesmen and super- visory and clerical employees, at its New York and New Jersey plants, respectively, at all times material herein constituted and now con- stitute, so far as existent, units appropriate for the', purpdses of col- lective bargaining with respect to rates of`pay,.^wages, hours ofem- ployment, and other conditions of employment. We further find, as did the Trial Examiner, that said units insure to employees of the respondent the full benefit of their right to self-organization. and to collective bargaining, and otherwise effectuate the policies ofthe Act. ' At the hearing, however, a. controversy developed as to whether four production employees, Paula. Goldsand, Remo Giustizia, James .Violandi, and one Moskowitz'21 should be included in, or excluded 20 The respondent's contract with the international referred. to above covers employees engaged in "the , performance of all operations in connection with the production of its article." • The Union' s, proposed contract contained a substantially similar provision. Production employees, are eligible to membership in the Union and in the International. 21 Moskowitz 's first name does not appear in the record. ' 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from the appropriate unit.22 The Union: contends that they are supervisory employees -and should be excluded from the unit. The respondent asserts that the four named employees are not super- visory workers and opposes their exclusion. Goldsand, a cousin of President Hulles, is employed in the re- spondent's finishing and shipping department. In addition to the performance of finishing and shipping operations, Goldsand instructs three or four other employees in the same department With respect to their, manner of working, inspects and criticizes their work, and sees that the other employees in the department are kept "busy all the time."' Feldman estimated at the hearing that Goldsand spends ap- proximately 25 percent of her working. time in connection with so- called' supervisory duties. Although employed on a salary basis'23 her pay is no greater than the earnings of the other employees in the finishing and shipping department. Violandi is a bench worker who performs' skilled operations on the more complicated work in the respondent's shop. He earns approxi- mately 15 cents an hour more than, that received by each of almost all production employees in the shop. • Fiss, a Board witness, testified that. during December 1940, Violandi was selected by Huller to be- come a supervisor but that Violandi never actually assumed super- visory duties. Giustizia, who was paid on the basis of in hourly rate twice that received by most- production employees, worked as a skilled machine operator.24 He gave instruction to other operators. Feldman esti- mated at the hearing, however, that Giustizia spent approximately 90 percent of his working time on production activity. Stress is laid upon an incident in which Giustizia attempted to discharge a fellow employee. About December 1, 1940, when Giustizia was left in 22 Counsel for the Board , the respondent, and the Union , respectively, stipulated that Emil,Fiss and David 'Seidner, vice president and general manager of the respondent, respectively , should be excluded from the appropriate unit . All parties , except the International, also stipulated that Julius Aberbach, a salesman, ' should be excluded. Counsel for the International stated that Aberbach should be included in the unit "if he performed a fair proportion of production work." The record does not disclose, however, to what extent, if any, Aberbach engaged in,production work. He is ineligible to mem- bership in the Union and in the International. Since Aberbach is a salesman, he will be excluded from the unit. Counsel for the Board , the Union, and the International, respectively , also agreed that one Reich, the respondent's bookkeeper , should be excluded from the unit. The respondent took no position with respect to Reich. Since Reich is a clerical ,employee, be will be excluded from the appropriate unit. 22 Goldsand's salary is based upon a 40-hour week and, is subject to deduction for time absent from work. - • • - 24 Giustizia and Moskowitz severed their employment relationship N^,ith the respondent prior, to September 1941 . The text with respect.to the occupational duties of the four production employees , whose status is .in controversy, relates only to-their work•'in the. New York plant . Since we hereinafter find that the Union represented a majority of the- employees in the appropriate unit in September 1941, even if Goldsand and Violandi were included in the unit, we find it unnecessary to consider their occupational status in the New Jersey, plant. FISS CORPORATION 143 charge of the factory during a temporary absence of General Man- ager Seidner, Giustizia informed Florence Pizzuto that she was dis- charged, and she_ceased work. Upon Seidner's return, however, he restored Pizzuto to work and informed Giustizia that he had no authority to discharge Pizzuto. Moskowitz, who was also a skilled machine operator, worked on a salary basis, earning an amount substantially in excess of that re- ceived by hourly paid production workers. His chief function was to manufacture sample products for' demonstration to the trade. In .,connection with the making of samples, he gave instruction to other workers who helped him and he criticized their work. Feldman esti- mated at the hearing that Moscowitz spent about 25 percent of his working time engaged in such instruction and criticism. On the basis of the foregoing, we are of the opinion that Goldsand, Violandi, Moskowitz, and Giustizia in substance occupied positions of experienced and trusted employees who occasionally instructed less experienced helpers in their work. They had no authority to hire or discharge employees, or, so far as appears, to make recom- mendations with respect to the hire or tenure of others, or to disci- pline employees.' The, interests of Goldsand, Violandi, Moskowitz; and Giustizia are more closely allied with those of ordinary employees than with management. We shall, therefore, include them within the appropriate unit. 2. Representation by the Union of a majority in the appropriate unit The respondent's pay roll for the week ending December 7, 1940, contained the names 'of 26 production employees. By December 4, 1940,12 production employees had signed applications for membership, in the Union. The Union received no other membership application or other form designating it as collective bargaining representative from the respondent's employees during 1940. We find, therefore, that the Union did not represent a majority of the respondent's employees in the appropriate unit during 1940. Accordingly, we will,dismiss the complaint' insofar as it alleges that the respondent-refused to bar- gain collectively with the Union'on or about November 14, 1940. The. respondent's pay roll for the week ending September 20, 1941, -contained the names of 37 production employees.25 Of these, as set forth above, 32 signed a petition on. September, 19, 1941, authorizing the Union to represent them for the purpose of collective bargaining with the respondent. As indicated above, 33 production employees, 23 For present 'purposes it is immaterial whether we also include on the respondent's pay roll 'the six employees, who, as appears above, were discriminatorily discharged at the time of the removal of the respondent's shop, since in either event, as appears below, the Union 's designation as majority representative w ould not be affected. ' 144 DECISIONS OF NATIONAL . LABOR RELATIONS BOARD including Edward R.ohrlack who did not sign the petition , part.ici- pated in a. strike begining . on September . 25, 1941 , to protest, as we Hereinafter find, inter alias against the respond elit 's refusal to bar- gain. with the Union.26 We find, therefore, as did the Trial'Examiner, that on September 19,. 1941, and at . all times thereafter, the" Union was the duly designated bargaining representative of a majority of the employees in the aforesaid appropriate unit, and that pursuant to Section 9 (a) of the Act, the Union was at all such times and is now the exclusive repre- sentative of all employees in the aforesaid unit for the purposes of collective bargaining with respect to rates of pay ,, wages, hours of employment, and other conditions of employment.. 3. The refusal to bargain As set forth above, on September 24, 1941, union representatives conferred with Richard M. Monfried, counsel for the respondent in this proceeding, and with Hulles concerning reinstatement of Richard Rosenberg and collective bargaining rights for the Union. The union representatives requested that the respondent bargain with the Union and showed Monfried the petition dated September 19, 1941, contain- ing the Union's authority to act as representative of the respondent's employees . When Hulles questioned the authenticity of the signatures appearing on the petition , the union representatives related the cir- cumstances under which the petition was signed .21- 26 In its answer to the complaint the International alleged that the Union had obtained designations as collective bargaining-representative by false and fraudulent representations as to its affiliation. At the hearing the International sought to cross-examine Feldman, the organizer for the Union, a Board witness, to elicit proof in support of its allegation. On objection from counsel for the Board and counsel for the Union, the Trial Examiner, refused to permit such examination and rejected the International's offer.to prove in sub-. stance: (1) that the Union had been expelled from the International Ladies' Handbag, Pocketbook and Novelty Workers Union and from the American Federation of Labor; (2) . that representatives of the Union had represented, contrary to fact, that the Union was affiliated with both said labor organizations ; (3) at least two employees of the respondent were induced by such fraudulent misrepresentations to apply for membership in the Union ; and (4) that as soon as the two employees learned the truth they indicated that they desired to be represented by Local No. 2 of the International and not by the Union. At the time of the, rejection of the offer of proof the Trial Examiner, stated, however, that he would permit the International to call its own witnesses to establish its case. The International called no witnesses to sustain its offer of proof. In lieu thereof it offered affidavits signed by two employees each stating, among other things, that the affiant had designated the Union as collective bargaining representaive "only as a result of statements to me by my fellow workers that they had been informed by [Union] rep- resentatives that it was affiliated with the A. F. of L." The Trial Examiner rejected the affidavits. We hereby affirm the Trial Examiner's rulings with respect to the cross-exami- nation of Feldman and the exclusion of the affidavits mentioned above. Cf. National Labor Relations Board v. Dahlstrom Metallic Door Co., .112 F. (2d) 756 (C. C. A. 2), enf g 11 N.. L. R. B. 408. 2' The. respondent had in its possession records containing genuine signatures of its employees. However, the respondent never made any attempt to check the authenticity of the signatures appearing on the petition by comparison, or any other mode. See National Labor Relations Board v: Somerset Co., 111 F. (2d) 6S1 (C. C. A. 1), enf'g as mod. and remanding 5 N. L. R; B. 486 and 12 N. L. R. B. 1057. FISS CORPORATION - 145- -- At the September 24 conference, Hulles. and Monfried informed the union representatives, and the respondent now contends, that.the existence of the contract between the respondent and the International, dated January 22, 1941, which was not to -expire until January 1, 1942, precluded the respondent from engaging in bargaining negotia- tions with the Union. The respondent further contends that the pendency of the proceeding before the Board also precluded collective bargaining with the Union since the Board therein. had under con- sideration the validity of the contract. We find no merit in the re sponclent's contentions. We have found above that the respondent engaged in unfair labor practices by interfering with, restraining,, and coercing its employees in their choice of collective bargaining representatives. The respondent was instrumental in recruiting membership on behalf of the International and thereby assisted the International. . The respondent, moreover, originally entered into the closed-shop contract with the International at a time when the Inter- national had not been designated as collective bargaining representa- tive by a majority of the employees in the appropriate unit as required by Section 8, (3) of the Act. The contract, the'refo're, is invalid,: and must be set aside. Since the contract is invalid, it cannot operate as a justification for the respondent's refusal to bargain with the Union.28 Having entered into the contract in disregard of the `provisions of the Act, the respondent cannot utilize the pendency, of proceedings involving its own unlawful conduct as a shield for the commission of new unfair labor practices. Accordingly, we find, as did the Trial Examiner, that on September 24, 1941,11 and all times thereafter, the respondent. refused to bargain collectively with the Union as the exclusive representative of its em- ployees in an appropriate unit with respect to rates of-pay, wages, hours of employment, and other conditions of employment; and that by such refusal interfered with, restrained, and coerced its employee in the exercise of the rights guaranteed in. Section 7 of the Act. D. The discharge of Rosenberg The amendment to the complaint alleges that the respondent dis- charged Richard Rosenberg on or about September 24, 1941, because of his union activities. While admitting the discharge, the respondent, claims that it is attributable to Rosenberg's lack of productivity in his work and to'insubordinate conduct. Rosenberg, a relative of General Manager Seidner, was first em- ployed by the respondent in October, 1940 as a general helper at a wage 2e' Cf. Matter of John A. Engelhorn & Sons and Packinghouse Workers Organizing Com- mittee, affiliated, with the Congress of Industrial organizations, et at., 42 N. L. R. B. 866, and cases therein cited in footnote 16. 19 In the Intermediate Report this date appears as September 25, 1941. 481039-42-vol. 43=10 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of $14 a week. He : did not .join the Union while the respondent operated its business in New York and was retained on the respondent's New Jersey pay roll. As already noted, after the resumption of opera- tions in Jersey City; ..the respondent operated. under its closed-shop' contract with the International. Rosenberg promptly became a mem- ber of the International. He acted as its shop chairman in the respondent's plant from about January to September 1941,-when he .was. replaced by Edward Rohrlack; another employee. About 3 weeks after the plant removal, Rosenberg was assigned to operate the click- .ng machine, and about January 15, 1941, his pay was increased $1 a week. In June 1941, Rosenberg approached Hulles with respect to a wage increase. When Hulles informed Rosenberg that the respondent was, financially unable to increase his pay, Rosenberg disclosed that the employees generally desired pay increases and that they planned to strike unless the respondent granted their demands. According to. undenied testimony of Rosenberg, which we credit, Hulles agreed to increase Rosenberg's wages $2 a week and promoted him to act as ,Seidner's assistant with a bonus arrangement based upon production, but stated to Rosenberg ".. . don't say anything to the workers . . and be on [my] side";. Rosenberg, however, replied that he was ". . . still a worker . .." and that he [wanted] "to stay in the union." .Two weeks later Rosenberg secured pay increases for three other employees. Sometime in August 1941, according to Rosenberg's testimony which Seidner denied, Seidner informed Rosenberg that he was to, be relieved of his duties as shop chairman; however, Seidner refused to enlighten. Rosenberg when he sought an explanation for his proposed removal as shop chairman, and remained silent when Rosenberg inquired ' ' whether such action would lead to his discharge. from employment. We credit Rosenberg's testimony. Early in September 1941, Christopher Deevy, an International rep- resentative, informed Rosenberg that "we are going to elect a new chairman," and called a meeting of the employees to conduct such election. At . the,, meeting, held about September 10, .1941, Rosenberg was removed as shop chairman, ostensibly because of the-supervisory nature of his duties; and was replaced by Rohrlack. Employees also expi-etssed on the floor' at. the meeting a.desire for pay increases. How- ever, Charles Mutter, another International representative, advocated.. delay in pressing such demands -upon the respondent and dissuaded the membership from taking any action at the meeting to obtain higher wages. .. ... .Dissatisfied with the International's representation of the' employ= I FISS CORPORATION 147 ees,30' it group of them. decided, shortly - after the September 10 meeting, to consult the Union, and promptly selected a committee of six, including Rosenberg, for that purpose. On September 12, 1941, the respondent discharged Rosenberg allegedly for spoiling material in the work process.31 That night; when the committee. consulted' the Union, its representatives suggested that the International's contract with the respondent in effect prohibited the discharge of in employee for spoilage of. material unless amounting to sabotage, and .advised, among other things, that Rosenberg seek the, aid 'of, the International to obtain reinstatement. At the instance of Rosenberg, the International interceded in his behalf, and the respondent rein- . = stated Rosenberg on September 17. Rosenberg was assigned, how ever, to a tedious job in which he was required to wield a small hammer almost continuously throughout the day. On the same day of Rosenberg's reinstatement, Seidner instituted a check with respect to Rosenberg's productivity. Shortly after Rosenberg's reinstate- ment, 'Seidner told Rohrlack, according to Rohrlack's testimony : "I will make [Rosenberg] quit this time. He won't get fired . . . I will work him to death." Seidner denied Rohrlack's testimony. However, Rosenberg testified that he had complained to Rohrlack about the nature of the work assigned to him after his reinstatement and that Rohrlack had reported to Rosenberg, after consulting Seidner about the complaint, that Seidner threatened to eliminate Rosenberg from .,the shop by making the work "hard" for him, thus corroborating Rohrlack's testimony. We find that Seidner made the statements above attributed to him by Rohrlack. Subsequently, pur- suant to the Union's suggestion, Rosenberg made arrangements for a meeting of the respondent's employees to be addressed by repre- sentatives of the Union. As indicated above, at the meeting on September 19, 1941, all the respondent's production employees, except about three, signed the petition requesting the ' Union- to undertake collective' bargaining negotiations with the respondent. Word of the meeting reached officials of the International who sent representatives to the respondent's shop to investigate. On September 24,32 Mutter .` 3O A check-ow of membership dues by the respondent pursuant to the terms of the closed- shop contract with the International , along with an absence of benefits from membership in that organization , provided a source of grave discontent among the workers. a' As hereinafter appears, Rosenberg was later reinstated ; and he was again discharged. on',,September 24, 1941 . The validity of that discharge and not Rosenberg's .discharge. on September 12, is in issue in this proceeding , in view of,the absence of an allegation of discrimination 'with respect to hire and tenure of employment 'on September 12, 1941. We find, it unnecessary to determine , therefore,' whether the respondent unlawfully dis- missed Rosenberg on September 12. It is interesting to note, however, that a day or two before Rosenberg's discharge on September 12, he was relieved of his duties as Scidner's assistant. "Rosenberg did not work on Saturday , September 20, and :the.'respondent 's, shop was closed on September.22 and 23 on account of Jewish holidays. 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Deevy, the International's representatives, visited the plant and conferred with Rohrlack. When Mutter complained about the as- sembly of the employees on the 19th, Rohrlack stated, according to 'Deevy's undenied.testimony which we credit, that "it was Richard's '[Rosenberg] doings." 33 Mutter thereupon informed Rohrlack 'tha.t Rosenberg must "leave the shop" since he was "a trouble maker." Deevy volunteered to- evict Rosenberg bodily from the shop if Mutter would' sanction that course of action. Subsequently that morning the International representatives conferred with Hulles and Seidner and complained that the employees "had a hell of a right to call a meeting without notifying [the International]." At the hearing Deevy described. Hulles and Seidner as "incensed'' when they learned about the September 19 meeting. Later, during the lunch period, Rohrlack told Rosenberg: "Mr. Mutter says you are going to be fired for talking at'the [September 19] meeting." At the close of the work day on September 24, Seidner told Rosenberg : 'You are through. Don't bother to come in any more.'!Rosenberg did not request an explanation and made no reply. That night the respondent rejected the Union's request for Rosenberg's reinstatement, asserting that he had, been discharged for cause. The respondent maintains , as its witnesses testified , that Rosenberg spent too much time in hammering a production unit and that conse- quently he failed to produce sufficient quantity to meet the respondent's requirements . The respondent further asserts , as its witnesses testi- fied, that Rosenberg deliberately refused to increase his output and that when warned of discharge. if he did not produce' more, he was, insubordinate in telling management that "it was too bad" and that,the respondent could not discharge him. On the other hand, Rosenberg testified that he could not produce more because the work, was too strenuous for him and that he so informed Seidner. Prior to Sep- tember 17, Rosenberg had, engaged in hammering operations without complaint by supervisors . We credit Rosenberg's testimony and find, as did the Trial Examiner , that Rosenberg did not expend less effort :in his work after his reinstatement than before and that he did not engage in , insubordinate conduct. We, therefore reject the respond- ent's contentions, Rather we believe that the respondent assigned Rosenberg to the hammering operation and held him to an unreason= able rate of output,, as.Seidner indicated he might ,do in, the threat' . which he expressed to Rohrlack set forth above, for the purpose of find- ing a pretext to eliminate Rosenberg from employment because he had refused to abandon the interests of his fellow employees and ally himself with 'management and, particularly, because of the role he "'Although Rohrlack attended the September 19 meeting, he did not sign the petition. FISS CORPORATION' 149 played in connection with the September 19 meeting. Accordingly, we find that the respondent discharged Rosenberg on September 24, 1941,. and thereafter refused to reinstate him, because. of his union activities. We find that the respondent discriminated in regard to the hire and tenure of employment of Richard Rosenberg, who was discharged' by the respondent because of his union activity, thereby discouraging membership in the Union and encouraging membership in the Inter- national, and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. E. The strike As already noted, on September 24, 1941, the Union demanded that the respondent reinstate Richard Rosenberg and bargain with the Union, and the respondent 's employees refused to report for work on September 25 after the respondent had rejected the Union's demands. We have also noted that on September 26, 1941, . the Union requested the respondent to bargain collectively, and that the respondent, relying upon its contract with- the International , refused. We have . found, however, that the contract was invalid and that the respondent cannot utilize it to justify its' refusal to bargain with the Union. The respondent , pointing, among other things, to the absence of a, picket ,line, maintains , nevertheless , that the work stoppage was not a strike but that the employees quit their employment , with the respondent because the Union promised to secure better -paid jobs for them in New York City. While one or more of the employees secured employment elsewhere since September 24, and the Union did not see fit to estab- lish - a picket line at the . respondent's New Jersey plant, we find no merit in the respondent's contention . On the. night of September 24, the Union represented that it would call a strike unless the respond= ent acceded to the Union's 'requests ; the respondent refused to accede; thereafter, the next morning , the employees failed to report for work; and, on the following day , in its communication to the respondent, dated September 26, 1941, the Union stated that .. . "the strike pres- ently being conducted" had been caused by the respondent 's refusal to observe the provisions of the Act , and renewed its offer to negotiate on behalf of the persons who had ceased work as a result of the labor dispute. Clearly therefore the stoppage of work on September 25 was a strike and'the strikers retained their status as employees within the meaning of Section 2 ( 3) of the Act. The strike was in progress at the time of the`hearing in December 194L We find that the strike was,caused and prolonged by the respond- ent's' unfair labor practices set forth above in Section III, C, and D. 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III above, occur- ring 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 unfair labor prac- tices,we shall order it to cease and desist therefrom and to take cer- tain affirmative action designed to effectuate the policies of the Act. We have found that the respondent refused to bargain collectively with the Union as the representative of a majority'of the employees in an appropriate unit. Normally under' such circumstances we direct that the respondent, upon request, bargain collectively with the Union. The respondent and the International maintain, however, that the Union lost its majority after September 25, 1941. At the hearing the International offered in evidence affidavits, executed by 13 employees who had abandoned the strike to return to work purporting to revoke authorizations previously given by them to the Union to act as bargain- ing representative and to designate the International as such repre sentative. The Trial Examiner, with one exception, rejected the affi- davits. We hereby affirm the ruling. Under the circumstances, the affidavits cannot be given effect since they were obtained by the Inter- national, a labor organization which had been assisted by the respond- ent's unfair labor practices., Their execution is attributable' to the -respondent's conduct in assisting the International and in refusing to bargain with the Union.34 In any -event, the revocations would not alter the majority status of the Union.. We shall, therefore, order that .the respondent, upon request, bargain collectively with the Union. We have found that the contract between the respondent and the International, dated January 22, 1941,35 is invalid because the Inter- national did not represent a majority of the employees in the appro- priate.unit at the time of the execution of the closed-shop contract and because the contract was made with a labor organization which had been assisted by unfair labor practices. In order to insure to the employees, the full and free exercise of the rights guaranteed in Section 7 of the Act without interference, restraint,' or coercion by the respondent,, we shall order that the respondent withdraw and 34 See, for example, National Labor Relations Board v. P.' Lorillard Co., 314 U. S. .5,12: International Association of Machinists •v. National Labor, Relations Board, 311 U. S. 72. as We regard the contract, 'variously dated December 10, 1940, December 20, 1940, and January 22, 1941, in substance as one and the same contract. 'FISS CORPORATION 151 .Withhold recognition from the International as the representative. of any 'of its employees for the purposes of collective bargaining until such time as the International maybe certified as their representative by the Board.36 We shall further order the respondent to cease and desist from giving effect to its contract, dated Janihary 22, 1941, with the International, as well as to any extension, renewal; modification, or supplement thereof, andany superseding contract which may now. be in force. Nothing herein, however, shall be deemed to require the respondent to vary those wage, hour, seniority, and other such sub- stantive features of its relations with the employees themselves, if any, which the-respondelit established in performance of the contract dated January 22, 1941, is extended, renewed, modified, supplemented, or superseded. We shall enter a similar order with respect to the re- spondent's written agreement with its employees, dated November 28, 1940., since we have found that that agreement on. its face is in derogation of the employees' right to self-organization. We have also found that the respondent discharged Sol Lowen- ..stein, Adolph Hoenig, Joseph Interstein, Ernest Ungar; Carrie Meyer, Joseph Altman, and- Richard Rosenberg because of their union activi- ties. During the hearing, however, the respondent sought to show -by cross-examination of Lowenstein, that he had secured other regu- lar and substantially equivalent employment. The Trial Examiner excluded such testimony but stated in substance -that- for the purposes of the case the fact that such employment had " been obtained by employees alleged to have been discriminatorily discharged would be assumed. We must. determine, therefore, in the exercise of our dis cretion 37, whether it will ,effectuate the -policies of the Act to. direct that offers..of reinstatement be made to such employees. We have considered this -question in Matter of Ford Motor .Company and International Union United Automobile 'W ricers of America, Local No..249,38 and in other cases.33 For the reasons there stated, we find, as did the Trial Examiner, that it will effectuate those policies to direct the respondent, to reinstate all such employees notwithstanding "See, for example, N. L. R. -B. v. Condenser Corp. of America, 128 F. (2d) 67 (C. C.' A. 3), enf'g-as mod. 22 N. L. R. B. 347; Eagle-Picker Mining and Smelter Co. V. N. L. R. B., 119 F. (2d) 903 (C. C. A. 8), enf'g as mod. 16 N. L. R. B. 727; Warehousemen's Union V. N. L. R. B., 121 F. (2d) 84 (App. D. C.), cert.- denied 62 S. Ct. 138, enf'g in this respect, 7.9 N. L. R. B. 778. g"I See Phelps Dodge Corporation v. N. L. R. B., 313 U. S. 177. 3e 31 N. L. R. B. 994. se Matter of Interlake Iron Corporation, a corporation and Local{Union No. 1657, Steel 'Workers Organizing Committee; C. 1. 0., 33 N. L. R. B. 613 ; Matter of Continental Oil 'Company and Oil Workers International Union, 35 N. L. R. B. 331; Matter of Phelps Dodge Corporation, a corporation and International Union of Mine, 'fill and-Smelter Workers, Local No. 30, 35 N. L. R. B. 418; 'and Matter of J. G. Boswell Company, a cor- poration, Associated ;Farmers of Kings County, Inc., a corporation, and Corcoran Tele- phone Exchange, a corporation, and Cotton Products and Grain Mill Workers Union, Local No. 21798, A. F. of L., 35 N. L. R. B. 968. 152 ' DECISIONS OF ' NATIONAL LABOR RELATIONS BOARD' the fact that they obtained regular and substantially equivalent em- ployment elsewhere. We shall order, therefore,, that the' respondent offer Sol Lowenstein, Adolph Hoenig, Joseph Interstein, Ernest Ungar, Carrie Meyeri Joseph Altman,'and Richard Rosenberg, imme- diate and full reinstatement to their former or substantially equiv- alent positions without prejudice to their seniority or other rights or privileges, and to make them whole for any loss of pay they may have suffered by reason of, the discrimination against them by pay- ment to each of them of a stun of money equal to the amount which ,he normally would have earned as wages from the date of such dis- crimination to the date of the offer of reinstatement, less his net earn- 'ings 10'during said period. We have also -found that the respondent's unfair labor practices caused and prolonged the strike which began on September 25, 1941. In order to restore the status quo as it existed prior to the time the respondent engaged in the unfair labor practices, we shall order the respondent (1) to offer reinstatement to their former or substantially equivalent positions, without prejudice to their .seniority and other rights and privileges, to those-employees who went on strike on Sep- telnber 25, 1941, or thereafter, and who have applied for and have not been offered reinstatement, and (2) upon application to offer rein- statement to their former or substantially equivalent positions, with- out-prejudice to their seniority or other rights and privileges, to those employees who went on strike on said date, or thereafter, and who have not'previously applied for reinstatement; dismissing if necessary any persons hired by the,respondent on or after September 25, 1941, the date of the commencement of the strike, and not in the employ of the respondent on said date. If there is then not sufficient work available for all the employees, all available positions shall be distributed among them without discrimination against any employee because of his union affiliation or activities, following the system of seniority or other non-discriminatory practice heretofore applied in the conduct of the respondent's business. Those employees, if any, remaining after such distribution, for whom no employment is immediately available, shall be placed upon a preferential l ist and thereafter offered employment .in their former or substantially equivalent positions as such employ- 'inent becomes available and before other persons are hired for such 40 By "net earnings " is meant earnings less expenses , such as for transportation, room, and board; incurred by' an employee in connection with obtaining work and working else- where, than for the respondent, which would' not have been incurred but for his unlawful discharge and the'consequent necessity of his seeking employment elsewhere. See Matter of Crossett L m"ber Companmj and United Brotherhood of Carpenters. and Joiners 'of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies received for work performed upon Federal, State; county, municipal, or other work-relief .projects shall be considered as earnings . See Republic Steel Corporation V. N. L. R. B., 311 U. S. 7. I F'ISS CORPORATION 153 work, in the order determined among them by said.system of seniority or other non-discriminatory practice. We shall also order the re- spondent to-make'whole those employees Who went on strike on Sep- tember 25, 1941, or thereafter, and who have applied. for and have not been offered reinstatement, for any loss of pay they may have suf- fered by reason of the respondent's refusal, if any, to reinstate them as provided above, by payment to each of them- of a sum of money equal to that which he would normally have earned as wages during the period from five (5) days after the date on which he applied for rein- statement to the date of the respondent's offer of. reinstatement or placement on a preferential list; less'-his net earnings, if any, during said period. We shall also order the respondent to make whole those employees who went on strike on September°25, 1941, or, thereafter, and who have not previously applied -for reinstatement, for any loss of pay they 'May suffer by reason of the respondent's refusal, if any, to reinstate them as provided above, by payment to each of them of a shin of money egilal to that which he would normally-have earned as wages during the period from five (5) days after the date on which he applies for -reinstatement to the date of the respondent's- offer of reinstatement or placement upon a preferential list, less his net earn-, ings, if any, during such period. - Upon-the basis of the above findings of fact and upon the entire record in the case, the Board makes the following :_ CoNOLusIONs or LAW 1. Pocketbook Workers Union of New York, Local No.' 1, affiliated `with International Ladies' Handbag, Pocketbook and'Novelty Work- ers Union of New York, and International Ladies' Handbag, Pocketbook and Novelty Workers Union, affiliated with the American Federation of Labor, are labor organizations, within the meaning of Section 2 (5) of the Act. . 2. The .product-ion.eniployees of the respondent, exclusive of sales- men and supervisory and clerical employees, constitute a unit appro- priate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 3. Pocketbook Workers Union of New York, Local No., 1, was on September 19, 1941, and at all times thereafter has been, the exclusive representative of all the employees in the aforesaid unit for the pur- poses of collective bargaining, within the meaning of Section 9 (a) 'of the Act. - - 4. By .refusing. to bargain collectively with .,Pocketbook Workers Union of New York, Local No. 1, as the exclusive representative of its employees in the appropriate unit, the respondent has engaged in 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and is engaging in unfair labor practices, within the meaning of Sec= tion 8 (5) of the Act: 5.- By discriminating in =regard .to the hire and tenure of employ- ment of Sol Lowenstein, Adolph Hoenig, Joseph Interstein, Ernest Ungar, Carrie Meyer, Joseph Altman, and Richard Rosenberg, and each of them, and thereby.. discouraging membership in Pocketbook Workers Union of New York, Local No. 1, and encouraging member- ship in International Ladies' Handbag, 'Pocketbook and Novelty Workers Union, the, respondent has- engaged in and is engaging in unfair labor practices, within the. meaning of Section 8 (3) of the Act.. 6. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the re spondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 7. The,aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act, 8. The respondent did not move its shop from New York to New Jersey to avoid collective bargaining with the Union, within the meaning of Section 8 (1) of the Act. 9. The respondent did not refuse to bargain with the Union on or 'about November 14, ' 1940, within the meaning of Section 8 (5) of the Act. ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Fiss Corporation, Jersey City, New Jersey, and its officers, agents, successors and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with Pocketbook Workers Union of New York, Local No. 1, as. the exclusive representative of the respondent's production employees, exclusive of salesmen, super- visory and clerical employees; ' - (b) Discouraging membership in Pocketbook Workers Union of New York, Local No. 1, or any other labor organization of its em-. -ployees, or encouraging membership in International Ladies' Hand- bag, Pocketbook and Novelty Workers Union, or' any other labor organization of its employees, by discharging or refusing to reinstate any of its employees or in any other manner discriminating in regard to their, hire or tenure of employment or any term or condition of their employment; FISS CORPORATION 155 (c) Recognizing International Ladies' Handbag, Pocketbook--and' Novelty Workers Union, or any affiliate thereof, as the representative ,of any .of its employees. for the purposes of collective bargaining, unless and until that organization: or an affiliate thereof - shall 'have been certified by the Board as the representative of the employees ; (d) Giving effect to its contract, dated January 22, 1941, with In- ternational Ladies' Handbag, Pocketbook and Novelty Workers Union, or to any extension , renewal, modification , or supplement thereof, or to any superseding contract with that labor organization or any: affili ate thereof . unless and until that organization or an affiliate thereof shall have been certified by the Board as the representative of.the employees; (e) Giving effect. to its "Agreement," dated November . 28, 1940, with its employees, or to any extension, renewal, modification, or sup- plement thereof , or to any superseding agreement; ' (f) In any manner requiring its employees . to contribute to the support of. International Ladies' Handbag, Pocketbook and Novelty Workers Union , or any affiliate thereof, and in any manner making further deductions from the wages of its employees; or any of them, for dues, taxes, or other assessments, payable, or to become payable, to that organization , or any affiliate thereof; and - . (g) In any other manner interfering with, restraining , or coerc- ing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations to bargain collectively through representatives of their own choosing , or to engage in concerted activi- ties for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7,of the Act. 2. Take the following affirmative action which the Board finds will effectifate the policies of the Act : (a) Withdraw and withhold all recognition from 'International Ladies' Handbag, Pocketbook, and Novelty Workers Union, or-any affiliate thereof, as the representative of any of its employees for the purpose of collective bargaining with respect to rates of pay; wages, hours of employment , or.-other conditions of employment, until that organization or an affiliate. thereof shall have been certified by the Board as the representative of the employees; '(b) Upon request; bargain collectively with Pocketbook Workers Union , of New York, Local No. 1, as the exclusive representative of its production employees, exclusive of salesmen and supervisory and clerical employees , with respect to rates of pay, wages, hours of em- ployment, and other conditions of employment; (c) Offer to Sol Lowenstein , Adolph Hoenig, Joseph . Interstein, Ernest Ungar, Carrie Meyer , Joseph, Altman, and Richard Rosen 156 DECISIONS OF NATIONAL LABOR: RELATIONS BOARD berg, immediate and.full reinstatement to their former or substantially equivalent ' positions without prejudice to their seniority or other rights or privileges; (d) Make whole Sol Lowenstein, 'Adolph. Hoenig, Joseph Inter- stein, Ernest Ungar, Carrie Meyer, Joseph Altman, and Richard Rosenberg, 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 amoimt which he normally would have earned as wages from the date of the discrimination to the date of the respondent's offer of reinstatement, less his net earnings during said period ; - (e) Offer to those employees who went on strike on September 25, 1941, or thereafter, and who have.applied for and have not been of- fered reinstatement, immediate and full- reinstatement to their former or, substantially equivalent positions, without prejudice to their sen- iority or other rights or privileges,- in 'the manner set forth in the ,section entitled "The remedy" above, and place those employees for whom employment is not immediately available upon a preferential list in the manner set forth in said section, and thereafter, in, said manner, offer them employment as it becomes available; (f) Upon application offer to those employees who went on strike on September 25, 1941, or thereafter, and who have not previously applied for reinstatement, immediate and full reinstatement to their former or substantially equivalent positions,' without prejudice, to their seniority and other rights and privileges, in the manner pro- vided in the section entitled "The remedy" above; and place those employees for whom -employment is'not immediately available upon a preferential list in the manner set forth in said section, and there- after, in said manner, offer them employment as it becomes available; (g) Make whole the employees specified' in paragraph 2 (e) above, for any loss of pay they may have suffered by reason of the respond- ent'srefusal, if any, to reinstate them, upon payment to each of them of a sum of money equal to that which he normally would have earned as wages during the period from five (5) days after the-date on which he applied for reinstatement to the date of the respondent's offer of reinstatement or placement upon a preferential list, less his net earnings, if any, during said period ; (h) Make whole the employees specified in paragraph 2 (f) above, for any loss of pay they may suffer by reason of the respondent's re- fusal, if any, to reinstate them, by payment to.each of them of a sum of money equal to that .which he would' normally have earned'as wages during'the period from five (5) days after the date on which he ap- plies for reinstatement to the date of the respondent's offer of rein- FISS CORPORATION 157 statement or placement upon a preferential list, less his net earnings, if any, during said period; (i). Immediately post in conspicuous places in its Jersey City plant, and' maintain for a period of at least sixty (60) consecutive' days from the date of posting, notices to its employees stating (1) that the respondent will not engage in the conduct from which it is ordered to, cease and desist in paragraphs 1 (a) to (g), inclusive, of, this Order; (2) --that the respondent- will take. the. affirmative action set forth .- in. paragraphs 2 (a) to (h),'inclusive, of this Order;, and (3) that the. respondent's employees are free .to become or remain members of Pocketbook `Yorkers Union of New York, Local No. 1, and that the respondent will not discriminate against any employee 'because of membership in or activity oif.behalf of that oranization; (j) 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. AND IT IS FURTHER ORDERED that the complaint-be dismissed insofar .as it alleges (1) that the respondent refused to bargain with'the Union ,on or about November 14, 1940,,and. (2) that it moved its shop from .New York to New Jersey in order to avoid collective bargaining with the Union and to interfere with the employees in their exercise of the 'rights guaranteed in Section 7 of the At. . MR. WM. M. LEISERSON took no part in the consideration of the' above Decision and Order.