Lundy Manufacturing Corp.

1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lundy Manufacturing Corporation and International Union of Electrical, Radio and Machine Workers, AFL-CIO and Amal- gamated Local Union 355, Party to the Contract Lundy Manufacturing Corporation and Richard Schreiber and Amalgamated Local Union 355, Party to the Contract. Cases Nos. 2-CA-6083 and 2-CA-6403. December 29, 1959 DECISION AND ORDER On July 15, 1959, Trial Examiner Ramey Donovan issued his In- termediate Report in the above-entitled proceedings, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent, the General Counsel, and the Party to the Contract filed exceptions to the Intermediate Report, together with supporting briefs. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Bean, and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings,' conclusions, and recommenda- tions of the Trial Examiner. 'OR-DER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Lundy Manufacturing Corpora- tion, Glen Head, Long Island, New York, its officers, agents, succes- sors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in and activities in behalf of Inter- national Union of Electrical, Radio and Machine Workers, AFL- CIO, or any other labor organization, by discharging or in any other manner discriminating against employees in regard to hire or tenure of employment or any term or condition of employment. i The Respondent has excepted to the Trial Examiner 's credibility findings. As it is the Board's established policy not to overrule a Trial Examiner 's resolutions as to credibility except where , as is not the case here, the clear preponderance of all the relevant evidence convinces it that the resolutions were incorrect , we find, contrary to the Respondent's contention , no basis for disturbing the Trial Examiner 's credibility findings. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F. 2d 362 (C.A. 3, 1951). '125 NLRB No. 109. LUNDY MANUFACTURING CORPORATION 1189 (b) Encouraging membership in Amalgamated Local Union 335, or any other labor organization, by entering into, maintaining, or renewing any agreement which requires its employees to join, or to maintain their membership in, such labor organization as a condition of employment, unless such agreement has been authorized as provided in Section 8 (a) (3) of the Act. (c) Recognizing Amalgamated Local Union 355 as the representa- tive of its employees for the purpose of dealing with the Respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other terms or conditions of employment, unless and until the said labor organization shall have demonstrated its exclusive majority representative status pursuant to a Board-conducted. election among the Respondent's employees. (d) Giving effect to the collective-bargaining agreement, dated July 1, 1958, between the Respondent and Amalgamated Local Union 355, or to any extension, renewal, or modification thereof, or to any super- seding contract, unless and until the said labor organization shall have demonstrated its exclusive majority representative status pur- suant to a Board-conducted election among the Respondent's em- ployees : provided, however, that nothing in this Decision and. Order shall require the Respondent to vary or abandon any wage, hour, seniority, or other substantive feature of its relations with its em- ployees which the Respondent has established in the performance of this agreement, or to prejudice the assertion by employees of any rights they may have thereunder. (e) Threatening its employees with economic reprisal to influence their choice of bargaining representative. (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Withdraw and withhold all recognition from Amalgamated Local Union 355, as the exclusive bargaining representative of its employees for the purpose of dealing with the Respondent concern- ing grievances, labor disputes, wages, rates of pay, hours of employ- ment, or other terms and conditions of employment, unless and until the said labor organization shall have demonstrated its exclusive majority representative status pursuant to a Board-conducted election among the Respondent's employees. (b) Reimburse its present and former employees for any dues or initiation fees deducted from their earnings by paying to each of 535'828-60-vol. 125-76 1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD them a sum of money equal to the total of such dues or initiation fees deducted from their earnings, beginning with the applicable 6-month period. (c) Offer to Frank Cosentino, John Healy, and Frank Cioffi imme- diate and full reinstatement to their respective former or substantially equivalent positions without prejudice to their seniority and other rights and privileges and make them whole in the manner set forth in section V of the Intermediate Report entitled "The Remedy" for any loss of earnings they may have suffered by reason of the discrimi- nation against them. (d) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all payroll records, time- cards, personnel records and reports, and all other records necessary or appropriate to an analysis of the amounts of backpay due and the rights of reemployment under this Order. (e) Post at its plant in Glen Head, Long Island, New York, copies of the notice attached hereto marked "Appendix."' Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by the Respondent's authorized representative, be posted by the Respondent immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for the Second Region, in writ- ing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith. 2In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." APPENDIX NOTICE To ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT discourage membership in and activities in behalf of International Union of Electrical, Radio and Machine Workers, AFL-CIO, or any other labor organization, by dis- charging or in any other manner discriminating against em- ployees in regard to hire or tenure of employment or any term or condition of employment. LUNDY MANUFACTURING CORPORATION 1191 WE WILL NOT encourage membership in Amalgamated Local Union 355, or any other labor organization, by entering into, maintaining, or renewing any agreement which requires our em- ployees to join, or to maintain their membership in, such labor organization as a condition of employment, unless such agreement has been authorized as provided in Section 8(a) (3) of the Act. WE WILL NOT recognize Amalgated Local Union 355 as the rep- resentative of our employees for the purpose of dealing with us concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other terms or conditions of employment, un- less and until the said labor organization shall have demonstrated its exclusive majority representative status pursuant to a Board- conducted election among our employees. WE WILL NOT give effect to the collective-bargaining agreement, dated July 1, 1958, with Amalgated Local Union 355, or to any extension, renewal, or modification thereof, or to any superseding contract, unless and until the said labor organization shall have demonstrated its exclusive majority representative status pur- suant to a Board-conducted election among the Respondent's em- ployees: provided, however, that nothing in this Decision and Order requires us to vary or abandon those wage, hour, seniority, or other substantive features of our relations with our employees, established in performance of any such agreement, or to prejudice the assertion by employees of any rights they may have there- under. WE WILL NOT threaten our employees With economic reprisal to influence their choice of bargaining representative. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organ- ization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of col- lective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by the Act. AVE WILL reimburse our present and former employees for any dues or initiation fees deducted from their earnings by paying to each of theun a sum of money equal to the total of such dues or initiation fees deducted from their earnings, beginning with the applicable 6-month period. WE WILL offer to Frank Cosentino, John Healy, and Frank Cioffi immediate and full reinstatement to their respective former or substantially equivalent positions without prejudice to their 1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD seniority or other rights and privileges, and make each one whole for any loss of earnings they may have suffered by reason of the discrimination against them. All our employees are free to become, to remain, or to refrain from becoming or remaining members of the above-named labor organiza- tions or any other labor organization. LUNDY MANITFACTURING CORPORATION, Employer. Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon charges and amended charges, complaint and consolidated amended com- plaint, and answers duly served, a consolidated hearing, pursuant to order, was con- ducted by the Trial Examiner on March 23-27 and 30-31, April 1-3, 7-10, and 28-30, and May 4, 1959, inclusive, at New York, New York, on the issue of alleged violation by the Respondent of Section 8(a)(1), (2), and (3) of the Act. In sub- stance, the alleged violations were: (1) Since January 31 to July 31, 1958, Respond- ent had maintained and enforced a contract containing a union-security clause which had been previously entered into with Amalgamated Local Union 355, herein called Local 355, at a time when Local 355 did not represent an uncoerced majority of em- ployees in the appropriate bargaining unit; (2) in July 1958, and at other times, Respondent granted wage increases and other benefits to its employees to induce them to refrain from assisting, joining, or remaining members of International Union of Electrical, Radio, and Machine Workers, AFL-CIO, herein called IUE, and to induce them to remain members of and to assist Local 355; (3) on specified dates in July, August, and September, 1958, Respondent warned and threatened its em- ployees with discharge and other reprisals if they joined or assisted the IUE or if they failed to assist and remain members of Local 355; (4) on July 31, 1958, Re- spondent and Local 355 entered into a contract when Local 355 did not represent an uncoerced majority of employees and while a question of representation in the unit covered by the contract was pending before the National Labor Relations Board, herein called the Board; and (5) on July 23 and 24 and September 19, 1958, Re- spondent illegally discharged Frank Cosentino, Frank Cioffi, John F. Healy, and Richard Schreiber. Respondent, in its answer, denied the foregoing allegations. In the course of the hearing, motions to dismiss were made by the Respondent, upon which the Trial` Examiner reserved ruling. For reasons subsequently appear- ing herein, the aforesaid motions are hereby denied, except to the extent that find- ings and conclusions which follow indicate that certain allegations of the complaint have not been sustained and are dismissed. All parties were afforded opportunity to argue orally upon the record and to file briefs. On the basis of the entire record in the case; and from my observation of the demeanor of the witnesses at the hearing, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Lundy Manufacturing Corporation, herein called the Respondent, has its prin- cipal place of business in Glen Head, Long Island, New York, where it is engaged in the manufacture, sale, and distribution of actuators, motors, air valves, and related products. In the year 1958 , Respondent, in the course of its business operations , caused to be purchased for and transferred and delivered to its aforementioned plant, castings, aluminum alloy, sheet stock, bar stock, and other materials valued in excess of LUNDY MANUFACTURING CORPORATION 11.93 $500,000, of which materials valued at more than $100,000 were transported to said plant in interstate commerce directly from States of the United States other than the State of New York. During the same period, Respondent manufactured, sold, and distributed products valued at more than $1,000 ,000, of which products valued at more than $1 ,000,000 were shipped from said plant in interstate commerce directly to States of the United States other than the State of New York. In its answer Respondent does not deny the allegations of the complaint that the Respondent has been at all material times engaged in commerce within the meaning of the Act, and it is so found. II. THE LABOR ORGANIZATIONS INVOLVED International Union of Electrical , Radio and Machine Workers, AFL-CIO, is a labor organization within the meaning of the Act. Amalgamated Local Union 355 is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Background After the United Automobile, Aircraft and Agricultural Implement Workers of America, CIO, had unsuccessfully sought to obtain collective-bargaining status in Respondent's plant in 1952 and 1953 , another union , identified in the record as the Retail Clerks Union, sought recognition from Respondent around February 1956. In the course of a strike called by the aforesaid labor organization, Robert C. Barbato, president of Respondent , suggested to nonstriking employee Salvatore Casella that Casella arrange a meeting between his brother-in-law, Frank Cosentino, and other strikers and Barbato for the purpose of ending the strike.' The meeting was thereafter held in Cosentino's home with no representative of the Union present. At the meeting Barbato asked what the strikers wanted to end the strike. Various demands ' were discussed , concessions were made by Barbato , and the strike was terminated . At Barbato's suggestion a shop committee was thereafter set up for the purpose of discussing with the Employer matters of interest to the employees relating to their wages and conditions of employment. The employees elected to the committe were Casella, Cosentino, and Timmermans . The committee met monthly with Barbato and discussed such matters as grievances , sick leave policy, and so forth. Following each meeting Barbato prepared a memorandum of what had been discussed and decided at the meeting . The memoranda were posted in the plant and the committee members received copies thereof . The committe continued its aforedescribed functions through 1956 and up to and including the advent of Local 355 in March and April 1957, when it became the Local 355 committee. Em- ployee Pagano was elected to replace Cosentino on the committee sometime about February 1957.2 B. The events of 1957 and the recognition of Local 355 Early in 1957, probably in March, organizational efforts on behalf of the Inter- national Association of Machinists, AFL-CIO, herein called IAM, were undertaken by certain of Respondent's employees after contact with Hallstein, an IAM organizer, in a restaurant after work. One of the principals in this organizational effort was Raymond Timmermans who testified without contradiction that, by passing out IAM cards in the plant during lunch hours and coffee breaks, a total of 47 signed cards was obtained .3 Timmermans was a member of the shop committee but the IAM 1 The Trial Examiner credits Casella's version of the events which cIs substantially uncontroverted except to the extent that Barbato testified that Casella and Cosentino initiated the idea of the meeting. Casella, who was still in Respondent's employ at the time of the hearing, impressed the Trial Examiner as a careful and truthful witness. In describing the relationship between Respondent and the shop committee, Sarbato referred to an incident involving the discussion of sick leave policy. After discussion between Barbato and the committee, a meeting was held in the plant on February 19, 1957. At the meeting Barbato presented the proposals of the Company to the assembled employees. A vote was then taken on the Company's three proposed policies. A majority of the employees voted for proposal #3. A day or two later the shop committee told Sarbato that the employees wished to change their mind and that they did not want proposal #3. The Company, however, stated orally and in a notice that it was putting policy ft3 into effect. a Respondent had approximately 75 employees, including group leaders, In its assembly and machine shops. 1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD activity had no connection with the "official" functions or activity of that committee nor was management consulted thereon. Shortly after Timmermans had the signed IAM cards in his possession and before he had turned them over to Halstein, an important series of events occurred . The record, in fact, contains two versions of what occurred in March and April 1957, when Local 355 was recognized by Re- spondent as the collective-bargaining agent of its employees. These versions are diametrically opposed regarding all crucial aspects . One account was given by Respondent's President Barbato, Attorney Dublirer, and business manager of Local 355, Bernard Tolkow. The other account was testified to by employees Casella, Timmerman's Cosentino, Breslin, Krantz, Schreiber , Mestell, and Kopor.4 The witnesses were examined, cross-examined, and reexamined extensively and the Trial Examiner has carefully considered their testimony, as well as their demeanor and the record as a whole. Based on the foregoing , the Trial Examiner has, on material and important points, as set forth hereinafter , credited the testimony of the employees aforementioned and finds that in March and April 1957, the following occurred. Preliminarily, it is found , on evidence that is uncontroverted , that Respondent, who up to May 31, 1957, occupied premises in Long Island City, New York, was, from the middle of May 1956 , under pressure to vacate its premises . A new plant was under construction by Respondent in Glen Head , Long Island , New York, but was not ready for occupancy until the end of May 1957, when Respondent moved to the new plant.5 It was in the aforedescribed situation that Tolkow, business manager of Amal- gamated Local Union 355, appeared and demanded that Respondent recognize his union as the collective-bargaining agent of its employees .6 It is the opinion of the Trial Examiner that the initial contact between Tolkow and Respondent took place in March 1957.7 Tolkow's testimony reveals that he was aware of Respondent 's impending move to Glen Head and he confided to others that he regarded this factor as a highly favorable circumstance for securing recognition and a contract . He told Barbato that he would "pull a strike" and that the plant would never move unless recognition was forthcoming . Tolkow also testified that he was aware that the JAM was engaging in organizational activity during this period in early 1957. According to Barbato , Tolkow claimed that he represented a majority of Respond- ent's employees ; Tolkow had a stack of cards with him which he never offered to Barbato for inspection or checking nor did Barbato ask to check the cards ; Tolkow 4 Casella , Timmermans , Breslin , Krantz , Mestell , and Kopor were in Respondent's em- ploy at the time of the hearing. Timmermans' position was that of group leader. Casella , Timmermans , and Cosentino were members of and active in employee com- mittees under Local 355 and prior to its advent . Breslin and Mestell became committee- men and stewards of Local 355. 6 Respondent's lease in Long Island City expired July 31 , 1956, and notice to vacate thereon had been received from the landlord . The landlord thereafter instituted summary court proceedings for holdover and a final order was made in favor of the landlord, with issuance of warrant stayed until December 31, 1956. By agreement , the deadline for vacating the premises was extended to March 31 , 1957 . The new plant's completion date was not realized, as planned and during the first part of 1967 , the Respondent, as Barbato testified , was in "a really touch -and-go situation ." The move to the new plant was finally made between May 31 and June 7, 1957. u Amalgamated Local Union 355 was originally affiliated with United Automobile Workers, AFL; it later became Allied Industrial Workers, AFL-CIO ; by about March 1957 its affiliation with the AFL-CIO ceased and at all relevant times in this proceeding it was unaffiliated . Although Tolkow described himself as business manager , he also testified that%e was "in charge of the entire union. I am responsible for the organiza- tion . . . in all its facets." 'The sole witnesses to the initial meetings between Respondent and Tolkow were the participants, Barbato , Dublirer, and Tolkow . Their version of what took place has been set forth in this report. As appears in the course of this report, the Trial Examiner has not credited the aforementioned individuals on important aspects of their testimony, relating to events witnessed or participated in by others, particularly their denials of testimony given by witnesses , credited by the Trial Examiner, relating to the circum- stances of Local 355 's introduction among Respondent's employees . However, the Trial Examiner has not rejected the testimony of the aforesaid representatives of Respondent in all respects nor has he, by the same token , while crediting a particular witness on certain matters , necessarily found that witness to be in all respects infallible . Fallibility and infallibility in individuals , particularly in litigation, are not often found in quanta of 100 percent. LUNDY MANUFACTURING CORPORATION 1195 rejected the idea of going to the Board; Barbato referred Tolkow to his attorney, Dublirer; Tolkow repeated his demands for recognition to Dublirer and again threatened a strike; Dublirer states that Tolkow had cards in his hand which Dublirer neither examined nor checked.8 After Tolkow's visit, Dublirer advised Barbato that if Tolkow had a majority he should deal with him, but that if he did not have a majority he should not deal with him. Dublirer also stated that Tolkow could strike the plant in any event. Dublirer testified that Barbato expressed great fear of a strike because he was in the middle of moving and finishing construction of a new plant. Shortly thereafter Barbato advised Dublirer that he had been convinced that Local 355 had a majority and that he had recognized that union. According to Dublirer, Barbato informed him that before recognizing Tolkow he had called his group leaders and employee committee into his office and had asked them whether or not Local 355 had a majority; that they told him they did not know because two unions were going around with cards, Local 355 and the IAM; that Barbato on that same day called a meeting in the plant of all his employees and told them to pick a union or no union and to let him know which union they wanted; and that the following day "some people had cone to him and told him that the shop had picked 355." 9 Barbato's testimony is consistent with that of his counsel, Dublirer, with the addition of the statement that the shop committee informed him that Local 355 was the union they wanted but that the committee had told Barbato, at the same time as them imparted the name of their choice, that they would like to meet, know, and learn more about Tolkow. Barbato then conveyed to Tolkow the aforedescribed expressed interest of the employees in meeting Tolkow and a meeting was arranged and held within a few days, at the Oyster Bay Restaurant, located near the Long Island City plant. In fitting all the pieces into place and in rounding out the picture of the early 1957 events in Respondent's plant, the credited testimony of employees Casella and Timmermans is pertinent. A composite of the testimony of these two shop com- mitteemen is to the effect that, within 2 or 3 days after IAM cards had been distributed among and signed by Respondent's employees and after Timmermans had 47 such signed cards in his possession, Barbato summoned Timmermans and Casella to his office. When the two employees reported to the office they were confronted by Barbato and Dublirer. They were told that management under- stood that they had some IAM cards in their possession and were asked to confirm or deny this fact. When the employees admitted having such cards they were asked to give them to Dublirer and Barbato. Both employees testified that the remark, how much do you want for the cards, or, what are the cards worth to you, was made to them on this occasion. The employees replied that they could not hand over the cards since it was up to the men who had signed them to decide what they wished to do with their cards. Management then asked them to go to the individuals with their cards, to explain management's desire that the cards be given back, and to tell the employees that Barbato would be down to address them and to explain why he wanted this done. Timmermans and Casella thereupon returned the IAM cards to the employees who had signed them. The exact date of the aforedescribed meeting is not definitely fixed in the record but, based upon careful consideration of the testimony and upon the record as a whole, the Trial Examiner finds and concludes that this meeting took place in March 1957, and that it and the following meetings occurred within a period of a day or two or less of each other, unless otherwise specifically found herein. The Trial Examiner also finds that the aforementioned series of meetings, one of which has been described, took place after Tolkow had contacted Respondent. Another meeting in this period that either preceded or followed the meeting between Casella, Timmermans, Barbato, and Dublirer, was held in Barbato's office during working hours pursuant to Barbato's order. Present were the group leaders in the plant, Crisci, Zier, and others, as well as Shop Committeemen Casella and Pagano, Timmermans, Cosentino, an ex-committeeman who had been told to attend 8 Harold Dublirer , labor counsel for Respondent during all relevant periods covered by this proceeding, called himself as a witness for Respondent. 0 The following examination of Dublirer then occurred : Q. Did he [Barbato ] tell you how the shop had picked 355? A. No. Q. Let me ask you this : Do you know how the shop picked 355? A. No. Q. Did he tell you who came to him and told him they had picked Local 355? A. I could not recall that. 1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by his supervisor, Barbato, Jaeck, general foreman or superintendent of the machine shop, and Van Hulse, general foreman in charge of the assembly department. The Trial Examiner credits and finds in accordance with the testimony of Cosentino and Casella as to what transpired at the last-mentioned meeting in Barbato's office.10 Barbato told those present in his office that he needed a union so he could move out of Long Island City; that no trucks would handle his things unless he was unionized; and that he had a union picked out for the shop. Barbato had a stack of cards which he asked the group leaders and committeemen to take and to pass out among the employees and to have them sign for Local 355. The cards were offered, specifically, to Group Leader Zier, who said that he was not a union organizer and refused, and to Casella,•who also refused at that time. After the above meeting ended and those present returned to work in the plant, Barbato called Casella to his office and gave him a list of people whom he should tell to be present for a meeting at the Oyster Bay Restaurant that evening. Casella conveyed Barbato's message to Zier, Timmermans, Pagano, Crisci, Martzinek, Lipski, and Bezler. In addition to the foregoing employees, Barbato, Dublirer, and Tolkow were present at this Oyster Bay Restaurant meeting. The Trial Examiner finds that the employees were introduced to Tolkow and were told that he represented Local 355. Tolkow said something to the effect that he felt he could do business with management. Barbato asked for cooperation in getting the Respondent's employees to join Local 355. In this same brief period Barbato called a meeting of all employees from both plants." This meeting was held in the machine shop shortly before the close of the working day. Cosentino testified that the meeting was held in the afternoon of the same day on which Barbato had held a meeting in his office with group leaders and committeemen as aforedescribed. Barbato testified that the plant meet- ing of employees was held before the Oyster Bay Restaurant meeting above. Details of the meeting are to be found in the testimony of Krantz, Schreiber, Kopor, and Cosentino. Based on the aforesaid credited testimony, the Trial Examiner finds that Barbato told the assembled employees that he had picked out a union for them, Local 355; that he had investigated this union and it was beyond reproach; that it would be good for the employees and for the company; and that he would not stand for another union. A few employees protested that they were not being given a choice. Barbato's rejoinder was that the employees were not there to make speeches, One of the assemblage, Group Leader Lipsky, said that he agreed with Barbato." Throughout the following day, Casella, Timmermans, Crisci, Pagano, and Zier distributed to and secured from the employees signed Local 355 cards in Respondent's plants. This activity took place during working hours and without interference by Supervisors Van Hulse and Jaeck. Thereafter, Casella and Timmermans delivered the signed Local 355 cards to Barbato's office. The fore- going finding is based upon the testimony of Krantz, Casella, Timmermans, Schreiber, Kopor, Cosentino, and Breslin which is credited by the Trial Examiner. It was the contention of Local 355 at the hearing that beginning about the middle of February 1957, it had two organizers, Murray Flatow and Arthur Scott, handing out cards outside Respondent's plants. Tolkow testified that because the cards thus distributed had the names UAW, AFL, or AIW, AFL-CIO, thereon, it was neces- sary to have the employees re-sign cards after Local 355 ceased to have any affiliation. For this purpose a meeting was held at Voelkert's Hall in Long Island City, on March 28, 1957, at which cards were signed in Tolkow's presence. Local 355 introduced into evidence 45 authorization cards, bearing apparently genuine signatures, and all dated March 28, 1957. Among the signatories are the names 10 The Trial Examiner does not credit Barbato to the extent that his testimony con- troverts that of Casella and Cosentino. Barbato's version of the meeting has been set forth previously in this report, i.e., Barbato asked his group leaders and committeemen whether Local 355 had a majority, etc. Although Van Hulse, Jaeck. and others of that rather large assemblage were still in Respondent's employ at the time of the hearing, they were not called as witnesses. 11In Long Island City Respondent had two buildings. In plant No. 1, at 33d Street, was the machine shop ; in plant No. 2, at 34th Street, was the assembly department. The original shop committee, to which reference has been made previously, was com- posed of Casella and Timmermans from plant No. 1 and Cosentino, then Pagano, from plant No. 2. 13 Prior to the advent of Local 355 the employees had been promised a general 10-cent per hour increase to take care of the move to Glen Head, with the added travel, etc. that the move would entail. In May 1957, after the advent of Local 355, the general increase was raised to 15 cents. The dues of Local 355 were $1 per week. LUNDY MANUFACTURING CORPORATION 1197 of Casella, Timmermans, Cosentino, Breslin, and Krantz . According to Tolkow he first approached Barbato about a week later and demanded recognition. Although a number of employee witnesses testified that they had never heard of Local 355 prior to Barbato's speech and that they had not seen any organizers for Local 355 outside the plant, the Trial Examiner is of the opinion that the record does show that Local 355 did have organizers outside Respondent's plant entrances. However, other than the testimony of Tolkow,13 the record does not show that these organizers secured any significant number of signed cards. No employee testified that he had signed a card for one of the Local 355 organizers, aforementioned; neither Flatow 14 nor Rogers, the organizers, were called to testify that they had secured cards from employees; every employee who testified on the matter stated very positively that he had signed a Local 355 card in the plant, after Barbato's speech, and after the card had been given to him by one of the employees men- tioned above. The 45 cards in evidence, as we have seen, all bear the date of March 28, 1957. Casella, Timmermans, Cosentino, Krantz, and Breslin, whose cards are among the 45, testified that they signed only 1 card and that that was signed in the plant as previously described.15 Employee Krantz testified that at the Voelkert's Hall meeting those who had not signed Local 355 cards were asked to sign them before Tolkow, who was presiding. Krantz stated that he did not sign a card on that occasion because he had previously signed a card in the plant after Barbato addressed the employees. Timmermans, who was seated in the front next to Tolkow at Volkert's Hall, testified that the meeting was subsequent the time when he had distributed Local 355 cards in the plant. According to Timmermans, Tolkow stated at the meeting that those who had not signed cards should sign them and that 5 or 10 cards were signed on that occasion. Based on all the evidence in the record the Trial Examiner is not persuaded as to the accuracy of Tolkow's testimony that Local 355 had obtained a majority of cards unaided by the employer and before contact was made with the latter, and finds that what- ever majority Local 355 obtained was secured after the series of meetings and under the circumstances as aforedescribed and found.ls After Respondent recognized Local 355 as the collective-bargaining agent of its employees, it negotiated a contract with that union. The record is clear that the existing shop committee, consisting of Casella, Pagano, and Timmermans, became the committee of Local 355, with the addition of Tolkow, who had simply asked the committeemen to serve under the new organization . Matters that had been under discussion between the shop committee and Respondent prior to Local 355's advent, such as sick leave policy, accrued vacations, and wage increases, were continued under the aegis of Local 355 and a contract, dated May 13, 1957, was signed by the parties.17 The contract contained, inter alia, a union-security clause. 13 Barbato and Dublirer although testifying that Tolkow brandished a stack of cards when he demanded recognition, did not look at the cards and did not identify any em- ployee as a signatory. 14 Flatow was the president of Local 355 in Respondent's plant at the time of the hearing and for the previous period. He chaired and conducted meetings and was other- wise active. He was not an employee of Respondent. 15 In addition to the 45 March 28 cards, there are 21 other cards in evidence. One of these cards is dated March 26, three are dated March 29, one is dated in March with an unclear day of the month, and the balance are dated in April and May. 100n another segment of the early 1957 union activity among Respondent's employees, Tolkow testified that he had approached Hallstein, the IAM organizer, and had per- suaded him to withdraw from his effort at Lundy. Hallstein denied categorically that he had met with or had made such an arrangement with Tolkow. Regarding this cred- ibility issue Intervenor argued for Tolkow's credibility on the ground that it was un- likely that the IAM would have relinquished its efforts after having secured a substantial number of cards unless there had been an arrangement as testified to by Tolkow. The Trial Examiner notes, however, that the record is uncontroverted that the IAM effort among Respondent's employees was not attributable to the initiative of that union but had resulted from the request of some employees, particularly Timmermans, and that before Timmermans turned over any signed cards to Hallstein, Casella and Timmermans were directed by Barbato to return the cards to the employees, which they did. Timmer- mans thereafter told Hallstein that the JAM campaign was "off" and to forget it. 171n July 1957, after the plant had moved to Glen Head, Flatow, an employee of Local 355, to whom Tolkow had delegated the administration of Local 355 affairs in the plant, held a meeting in the plant at which the employees elected a committee composed of Breslin, Mestell, and Casella. 1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The term of the contract was 2 years, subject to a 607day reopening "with respect to wages" at the end of 1 year. C. The events of 1958; continued recognition of and contractual relations with Local 355 By letter, dated March 27, 1958, signed by Tolkow, Local 355 advised Respondent as follows: Enclosed please find a copy of the requests for changes in our current agreement. These changes are requested under the reopening date of our present contract of May 13, 1957. Please communicate with us as rapidly as possible to set a date for negotiations. The proposed changes accompanying the foregoing letter were 14 in number, includ- ing demands for notice of overtime, incorporating of group leaders in contract coverage, specified pay for overtime, promotion policy, effect of a Saturday holiday, vacation periods, accrued vacation policy, holidays, sick leave, role of stewards and committee, probationary period changes, washup time definition, and specified wage increase.18 Although it would appear that with respect to a contract dated May 13, 1957, the March 27, 1958, letter was not timely under the 60-day clause of the contract, particularly when the March 27 letter referred to the date of the contract as May 13, Respondent's attorney, Dublirer, testified that the contract had in fact been signed May 28 and had been predated. In any event, Respondent did not question the timeliness of the reopening of the contract and since the contracting parties were in agreement on this point, it is found that the contract was reopened. The Trial Examiner is also of the opinion that the reopening went well beyond the subject of wages. Not only were the 14 aforedescribed demands of the Union negotiated, but additional matters, including the term of the contract, were discussed and formalized into a new contract. The record contains a plethora of testimony regarding the negotiation of the 1958 contract, commencing with a meeting between Respondent and the union committee, headed by Tolkow, on April 7, 1958, and continuing on April 14, 21, 28, and 30, May 7, and June 18. Interspersed with these meetings was a meeting on April 22, 1958, at which Barbato spoke directly to the employees in the shop regarding Respondent's position on the contract. There were also meetings of the Local 355 membership, another meeting at which Barbato addressed all the employees in July, and a meeting relating to the •IUE in the period prior to the execution of the contract on July 31, 1958. The negotiating sessions in April 1958 facilitate an understanding of later events. There was give-and-take bargaining on both sides. It was understood by both parties that agreements on various points were of a tentative nature since on all matters the union committee was obliged to secure ratification by the union membership before a final commitment was made. On wages the union committee had received instructions at various times from the members and could make commitments, but the contract as a whole was subject to membership ratification. At the end of the May 7, 1958, negotiating session, the parties had reached agreement on a substantial number of issues. It was the Respondent's impression, apparently, that there were no outstanding major issues. Various members of the union committee testified that classifications, seniority, and a "practicality of the situation" clause, which appears to have been a sort of management prerogative provision, had not been finally settled. In any event, as Dublirer testified, it was understood that such agreement as was reached was subject to ratification by the union membership. Tolkow testified that on May 12 there was a meeting of the Local 355 member- ship at which the contract was ratified. The evidence concerning this meeting is sparse, but the Trial Examiner is of the opinion that there was a meeting at 'about this time at which Tolkow did discuss items on which the union committee and the Respondent had agreed, and a vote was taken, voicing approval of the items 19 The contract demands had been formulated at a meeting of Local 355 held in Norway Hall in Glen Head. At this meeting the employees also elected a negotiating committee consisting of Cosentino, Zier. Johnson. and Slater, which was to supplement the regular three-man committee of Breslin, Mfestell, and Casella in meetings with Respondent on the contract. LUNDY MANUFACTURING CORPORATION 1199 covered. The Trial Examiner has credited in this respect employee Breslin.19 Breslin stated that approval of the major items, such as wages and sick leave, was voted at this meeting; there was discussion about the "practicality of the situation" clause and there was considerable disagreement ; the committee was instructed to go back to management and to discuss such things as classification ; in general, the -exact wording of the various provisions was to be taken up by the committee with management. Following the above meeting, Tolkow informed Respondent that the agreement had been ratified . Thereafter, a series of contract drafts passed back and forth, between Tolkow, Dublirer, and Barbato. Tolkow later informed Dublirer that his Local 355 committee had been raising objections to the drafts and the parties met on June 18 and discussed contract issues. More drafts were thereafter pre- pared. Dublirer testified that Barbato was complaining about the length of time it was taking to secure a signed contract . Thereafter, Local 355 posted a notice in the plant announcing a meeting to be held in Norway Hall , "Purpose of the meeting: Contract Ratification." At this meeting, aforementioned , about July 15, 1958, Tolkow took the position that the contract had previously been agreed to by the committee and had been ratified and that he was simply going to read the highlights of the contract. Cosentino and other committee members who were present denied that they had agreed to the contract , with the exception of wages. Tolkow, upon demand, read provisions of the contract draft amid animated argument, discussion , and confusion from the floor regarding terms of the contract and matters relating thereto. Employee Cioffi who had raised an objection at the meeting to an aspect of the contract was called a "Philadelphia lawyer" by Tolkow. The meeting ended in some turmoil and no vote of ratification was taken. After leaving the meeting, Cioffi asked Cosentino , Healy, Schreiber, Kopor, and Ramos whether they would be interested in disaffiliating from Local 355 and received an affirmative answer. Contact was thereafter made with Garry , a representative of the IUE. After two or three meetings with Garry, Cosentino and some other employees posted notices in the plant on July 22, announcing a meeting that evening in Norway Hall for the purpose of voting on disaffiliating from Local 355 and on affiliation with the IUE, AFL-CIO.20 The meeting was held that evening under the chairmanship of Cosentino . A vote was taken to disaffiliate from Local 355 and to affiliate with the IUE. A resolution to this effect was signed by employees at the meeting 21 By telegram dated July 22, 1958 , and delivered to Respondent on July 23 or 24, the IUE advised Respondent that on July 22 at Norway Hall its employees had voted to disaffiliate from Local 355 because of that union 's expulsion from the AFL-CIO, as a result of McClellan Committee hearings implicating Local 355 and Tolkow with Johnny Dio. The telegram advised Respondent that a majority of its production and maintenance employees had designated the IUE as their bargaining agent and Respondent was requested to recognize the IUE as the desig- nated bargaining agent. On July 23 the IUE also distributed leaflets at Respondent's plant. The leaflet referred to the meeting "last night" at which the employees voted to disaffiliate from Local 355 and to affiliate with the IUE and stated, inter alga, that "the IUE is requesting that management meet with its representatives for the purpose of orderly transfer of bargaining rights to the new bargaining agent selected by the workers. The days of sweetheart deals are over." On July 24, Barbato called a meeting of the employees in the plant shortly before quitting time. He testified that he had a copy of the aforesaid IUE leaflet and that 19 Breslin was a member of the Local 355 committee, who, with Zier and Tolkow, was the only committee member who signed the 1958 contract on July 31. Breslin was called by the General Counsel as a rebuttal witness, and in direct examination he testified on two items, the circumstances of his signing a Local 355 card and the circumstances relating to the signing of the 1958 contract. 2n Cosentino and Cioffi were discharged July 22, 1958; Healy was discharged July 24, 1958. The discharges are discussed below. On July 22, 1958, prior to the posting of the disaffiliation meeting notices on the same day, Respondent posted a notice stating: "The pay raises called for by the new contract will be paid this coining Friday, July 25, 1958. . . . The Bookkeeping Department is working on the retroactive pay due to you. It will be paid as soon as the computations are completed." 21 There were 68 signatures on the resolution. 0 1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this was the reason why he held the meeting.22 According to Barbato, he told the assembled employees that he was outraged by the leaflet's statements regarding non- payment of the wage increase and by the reference to a sweetheart contract. He stated that he considered that "we had a contract" and that the raise was delayed because the contract had not yet been signed. He repudiated the idea that the contract was a sweetheart arrangement, referring to its advantageous terms and comparing it with other contracts. Barbato also testified that he informed the employees that if "we" continued to have squabbles and labor differences of this type there would not be much incentive for him to continue to worry about getting production contracts and that it might be more advantageous to concentrate on research and development contracts. He stated that he may have used the term "double dealing" in the course of his speech. Prufer, plant manager of Respondent and next in authority to Barbato, testified that at this plant meeting on July 24, Barbato said, in substance, that if he had to deal with a doubledealing union com- mittee that negotiates a contract and then turns around and says that it does not have a contract he would or could divert production work elsewhere. The Trial Examiner finds that the foregoing remarks were made by Barbato on July 24. It is the opinion of the Trial Examiner, based on the testimony in the record, that Barbato, on this occasion, spoke with considerable emphasis and feeling and that under the circumstances of the delay in the execution of the contract, the disaffiliation movement, and the appearance of the IUE, it is entirely plausible that Barbato made the additional remarks attributed to him by various witnesses. The Trial Examiner finds that in speaking about going into research and development work in lieu of production contracts if the labor troubles persisted in the plant, Barbato was more explicit than his own testimony would indicate. The testimony of employees Kopor, Hueppi, and Palagyi is credited that Barbato threatened to get rid of troublemakers or ringleaders who were causing labor trouble in the plant and that Barbato said that bringing another union into the shop was equivalent to raping him.23 On July 28 or 29, 1958, a Local 355 meeting was held at Norway Hall with Flatow as chairman. The apparent purpose of the meeting was to ratify the contract. At the commencement of this meeting, Flatow refused to continue when he observed Cosentino, Healy, and Cioffi enter the hall. There is no evidence that anyone except Flatow objected to the presence of the three discharged employees. The three men stated, after Flatow announced that he would not continue while they were present, that they were paid-up members of the union and had a right to be there. An employee named Vest slapped Flatow in the face with the contract and denounced the contract. Police appeared on the scene and the meeting disbanded in confusion. Pursuant to a notice posted in the plant a contract ratification meeting was held in the shop on July 30 after working hours. Respondent had given permission for the use of its premises and had arranged that the doors would be locked, thus pre- venting ingress from the outside but not preventing people within the plant from leaving. Flatow chaired the meeting and discussed the contract. A motion was made to vote on the contract. Casella objected that there were clauses in the contract that were supposed to be rewritten and that this had not been done. He also objected to holding a meeting of that type in the plant. However, the vote was taken and 22 voted for ratification, 13 against, and 22, who were present, did not vote. Fla-tow then dismissed the meeting 24 22 Barbato stated that he did not receive the IUE telegram of July 22 until a day or two after the plant meeting. 23 Each of the witnesses referred to testified that Barbato used the terns "rape" e.g., Kopor said that Barbato stated, "you would not want anyone to rape your wives but that is what you are doing to me by bringing another union into the shop." In the particular context the Trial Examiner is of the opinion that the language or analogy is somewhat unusual and, when recounted by these witnesses in their testimony, the ele- ment of fabricated testimony appears to be a minimal possibility. In any event, this was one of many factors considered by the Trial Examiner in appraising the evidence relating to the July 24 meeting. On July 28, 1958, the IUE filed a petition with the Board for Respondent's em- ployees in Case No. 2-RC-9527. Another petition was filed by the IUE on September 17, 1958, Case No. 2-RC-9527. Warshaw, the IUE attorney, stated that the second petition was filed because the Respondent, subsequent to the first petition, represented to its workers that it entered into an agreement extending the existing contract. General Counsel's Exhibit No. 34 is a letter, dated July 30, 1958, from the Regional Director of Region 2 of the Board to Respondent, advising of the filing of a petition by LUNDY MANUFACTURING CORPORATION 1201 On July 31, 1958, in the forenoon, the contract was signed by the parties in Barbato's office. Present were Barbato, Dublirer, Prufer, Tolkow, Flatow, Breslin, and Zier. Breslin testified that he was called into the office to sign the contract and Flatow informed him at that point that the contract had been ratified the night before.25 Dublirer, who interrupted his vacation to be present on July 31, testified that several changes were made in the contract that morning, e.g., top seniority for shop stewards and a change relating to initial handling of grievances. The term of the contract was made to read July 1, 1958, rather than July 31, and was for a period of 3 years, to June 30, 1961, with provision for reopening in 1960. The contract contained a union-security clause. D. Conclusions regarding Respondent's conduct with respect to Local 355 The evidence establishes, in the opinion of the Trial Examiner, that on or about March 1957, Respondent recognized Local 355 as the collective-bargaining agent for its production and maintenance employees at a time when Local 355 either did not represent a majority of said employees or at such time when, if Local 355 did represent a majority, the said majority was obtained by means of and through the active sponsorship and assistance of Respondent. Respondent assisted Local 355 by Respondent's use of its time, property, and personnel for the purpose of securing and insuring Local 355's status as bargaining agent. By its execution of a contract with Local 355 on May 28, 1957, which required employee membership in Local 355 as a condition of employment, Respondent engaged in conduct which rendered the aforesaid union-security clause unlawful because it was not executed in con- formity with the proviso to Section 8(a)(3) of the Act. Respondent maintained and enforced its contract from May 28, 1957, to July 31, 1958, and thereafter executed and maintained a union-security clause in its contract, dated July 1, 1958. Section 10(b) of the Act does not preclude a consideration of events antedating the charges by more than 6 months and Respondent's conduct, within the 6-month period, of continuing and maintaining the aforedescribed 1957 contract and of executing and maintaining the 1958 contract, constitute violations of Section 8(a)(1), (2), and (3) of the Act. Bryan Manufacturing Company, 119 NLRB 502, enfd. 264 F. 2d 575 (C.A., D.C.).26 The Trial Examiner also concludes that prior to July 31, 1958, when it executed a contract with Local 355, Respondent was faced with conflicting claims of the IUE and Local 355 which gave rise to a real question concerning representation. 7 Under such circumstances, Respondent could not legally recognize or enter into a contract with Local 355 until its right to be recognized had been determined under the pro- cedures provided in the Act. By entering into and executing a contract on July 31, 1958, under the foregoing circumstances, Respondent violated Section 8(a)(1) and (2) of the Act. Midwest Piping & Supply Co., 63 NLRB 1060; Novak Logging Company, 119 NLRB 1573. This would be true if both competing unions were otherwise unassisted but, where one of the unions has been and is the recipient of Respondent's illegal assistance, as in the case of Local 355, the Midwest Piping doctrine is of double applicability.28 the IUE, Case No. 2-RC-9527, for a unit of Respondent's production and maintenance employees. 25Casella had been asked to sign the contract but had refused. 21 Aside from the contract, the Trial Examiner is of the opinion that Respondent assisted Local 355 and interfered with the rights of employees under Section 7 of the Act by Barbato' s speech to the employees on July 24 , 1958, by the effectuation of a contract wage increase while ratification and execution of the contract was pending, and by the use of company premises being given to Local 355 on July 30 , 1958, to hold a contract ratification meeting. It is also concluded that the discharges of Cosentino, Healy, and Cioffi, as found hereinbelow, constitute, under the circumstances and the reasons for the discharges , acts of assistance to Local 355. W The ME claim was presented by the telegram of July 22 ; the leaflet of July 23 ; the petition of July 28. -Although the contract does not by its terms provide for ratification by the union membership as a condition precedent, the Trial Examiner finds that both parties, the Respondent and Local 355, specifically understood that such ratification was a necessary condition . The Trial Examiner further finds that although Respondent and Tolkow at one stage of their dealings apparently took the position that the contract had been ratified in May 1958, they subsequently waived this position and proceeded on the basis that the July 15 meeting was a ratification meeting. The contract was not ratified on July 15 and another attempt at ratification was made on July 28 or 29 but again with- 1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD E. The discharges 29 1. Frank Cosentino Frank Cosentino, who was discharged on July 22, 1958, had commenced working for Respondent 4 years previously on July 22, 1954, as an instrument assembler at $1.10 per hour. In the course of his employment he had received several merit increases, and at the time of his discharge his rate was $2.32 per hour. From 1956 to the date of his discharge Cosentino was the most active or one of the most active and prominent employees in employee union activity in Respondent's plant. This fact was known to and was recognized by Respondent's president, Barbato, who dealt with Cosentino in the latter's home in 1956 and settled a union strike thereby, without becoming involved with the union conducting the strike. Cosentino was one of the original committeemen of the shop committee that Barbato. initiated after the 1956 strike; Barbato summoned Cosentino to attend a meeting of group leaders and committeemen in Barbato's office in March 1957, when Barbato undertook the inauguration of Local 355, although Cosentino was at that time neither a group leader nor committeeman; Barbato had placed Cosentino's name on the list of people that he gave to Casella around March 1957 for the purpose of having them attend a meeting at the Oyster Bay Restaurant to meet Tolkow, the business manager of Local 355. It was not until sometime later in the incumbency of Local 355, particularly in 1958, that Cosentino's articulate and influential role among the employees began to run manifestly at cross purposes with that of Respondent. At the July 15, 1958, meeting of Local 355, at which Tolkow advised the membership that the committee had approved the contract, Cosentino, as a committeeman, publicly repudiated this statement and was followed by other committeemen. The meeting ended without Tolkow being able to secure membership approval of the contract. We need not rely on inference that Respondent, in view of its sponsorship of Local 355, was interested in and aware of personalities and obstacles encountered by that Union in clearing the ground for execution of the contract.30 In this period of failure of Local 355 to secure the final ratification of the contract as a prerequisite to its execution and Respondent's admitted impatience over the state of affairs, notices of a meeting to disaffiliate from Local 355 and to affiliate with the IUE appeared in the plant on July 22. About six or seven notices appeared on bulletin boards, boxes, and other parts of the plant, including the men's toilet.31 The notices caused considerable discussion among the employees, and Prufer testified that during the morning various foremen reported to him that the boys were all excited. Other than to remove the notices, Respondent, so far as appears, did not find it necessary to take any other action in the forenoon, such as ordering any out success. Ratification was finally secured on July 30, at a meeting in Respondent's plant. On the following day, July 31, the execution of the contract. heretofore un- consummated until ratification was obtained, was finally accomplished. The record: establishes that the contract ratification and execution were not mere ministerial acts but involved and turned upon prior substantive issues, some of which were still in an, executory state on the day of the final execution and which were taken care of in the contract itself immediately prior to the signing. Thus, aside from the illegality of the contract for reasons unconnected with the lli<lwcst Piping doctrine, the contract would not have foreclosed the raising of a question of representation by reason of the IIIE' claim, with the attendant necessity that the question so raised be resolved under the procedures of the Act. ^ The events set forth previously in this report furnish the setting in which the dis- charges occurred and the facts set forth herein occurred in such context. a0 Employee Healy, whom the Trial Examiner found to be an accurate and truthful' witness and whom he credits, testified that after the July 15 meeting, Plant Manager Prufer asked him why he had asked the questions. he did at the meeting. Healy had in fact questioned Tolkow at the meeting and had been told to sit down. Again, after the July 22 disaffiliation meeting, Prufer queried Healy. Healy told Prufer he was re- luctant to discuss union business and Prufer replied that he knew much more about the meeting than Healy thought he did. 31 The text of the notices was as follows : "Notice. There will be a general member- ship meeting at Norway Hall, located at 50 Railroad Avenue, Glen Head, Long Island,, N.Y., on July 22, 1958, at 5 :00 p.m. Matters of great importance to everyone will be discussed and voted on. A vote will be taken to disaffiliate from Amalgamated Local 355- and to affiliate with the THE, AFL-CIO. All members of Amalgamated Local 355 are- urged to attend this important meeting. Fraternally yours, The Shop Committee." LUNDY MANUFACTURING CORPORATION 1203 employees to resume work if they were not working. It would also appear that the "excitement" among the employees was probably of compound origin since, on that same morning, July 22, Respondent had posted a notice that it was putting into effect the wage provisions of the new contract which Local 355 was still endeavoring to have ratified by the employees and which was not ratified and executed until July 30 and 31, 1958, respectively.32 After the lunch period, Prufer learned -that Cosentino had been seen posting a disaffiliation notice on the bulletin section of the glass partition between the machine shop and the assembly department. Vandenberg, an office employee, informed Prufer that while some employees were reading the Respondent's contract wage in- crease notice that he had just posted on the glass partition, Cosentino had posted a disaffiliation notice. Prufer received confirmation of this intelligence from Watson, a clerical employee, and from Lipsky, a group leader.33 Following receipt of word from Casella that the Local 355 committee had nothing to do with the disaffiliation notices, Prufer then went to Barbato, between 2 and 3 p.m., and recommended Cosentino's discharge. Thereafter Prufer told Cosentino that he was "through." At the hearing Prufer testified that Respondent does not have any rule about posting notices in the plant and that signs advertising rooms for rent and articles for sale have been freely posted by employees. Prufer said Cosentino had been discharged because he was conducting a promotional campaign and that when signs showed up all over the plant Prufer was obliged to take drastic action; he stated that he would have taken the same action regardless of the contents of the signs. Prescinding from the fact that Respondent, when it discharged Cosentino, had no evidence that the latter had posted more than one notice,34 the Trial Examiner finds it difficult to conclude that six notices that a nicely furnished room was for rent or a similar number of notices advertising a slightly used mandolin would have provoked the drastic action of discharge against an experienced employee of 4 years' service. For possible justification we must, it is believed, consider the asserted disruption of production that the disaffiliation notices allegedly caused. There can be no doubt that employees were talking about the notices. How much production suffered we do not know since no production figures were offered and no foreman or other supervisor testified as to specific situations, as distinguished from Prufer's general assertions. However, this record is replete with instances of company time and property being used to elect the original shop committee instituted by Barbato, to direct Timmermans and Casella to return JAM cards to employees, to return JAM cards to employees in the plant, to acquaint employees that Local 355 was to be their bargaining agent, to distribute to and to collect Local 355 cards from employees in the plant during working hours, to elect a Local 355 committee, and for addresses by Barbato regarding the contract and his views about efforts relating to any union except Local 355. Prufer testified that he permitted employees who were working to attend Local 355 meetings without loss of pay, including employees who were being paid at an overtime rate. The plant manager also admitted that a few weeks before July 22 he observed groups of employees around Cosentino's place of work talking to him. Prufer had not interfered because he felt that the men were dis- cussing the Local 355 contract negotiations with Cosentino. While an incumbent union may be accorded certain advantages by reason of its status it is bootstrap reasoning to conclude that a union that gains its incumbency under the circum- stances found in this report can be afforded assistance upon assistance in contrast to drastic action against an employee for using some portion of company time for the exercise of rights guaranteed by Section 7 of the Act. In the opinion of the Trial Examiner the following portions of the record are revelatory of the reason why Cosentino was discharged. Prufer affirmed that at the 89 On July 22 after the wage 'increase notice was posted, Breslin, shop steward for Local 355, asked Cosentino if he 'had seen the notice about the increase. Cosentino said he was not interested and the ensuing discussion of the wage increase continued for about 15 min- utes during working hours. '13 Cosentino's testimony is uncontroverted that while Watson was querying him about the notice he had just posted, Machine Shop Superintendent Jaeck came up and accused Casella and Cosentino of being "ringleaders" responsible for the notice. Casella denied having anything to do with the notice. Jaeck said to Cosentino, "what is wrong with 355, it is a good union." Cosentino replied that it was about time that the people in Lundy got wise to themselves and how naive do you think they are. It is a reasonable conclusion that Jaeck's remarks show concern about the sponsorship of the notice and its subject matter rather than any other consideration. 3+ The record indicates that Cosentino posted a notice in the toilet and on the glass partition . Other employees had posted notices in other places in the plant. 1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD prior unemployment compensation hearing he was asked (and answered), "What did you find out that caused you to discharge him [Cosentino ]?" He answered, "We didn't know where this man stood. Are we dealing across the table with this man? Is he a member of the negotiating committee , or is he trying to stab us in the back with something else, or is he making all the efforts that we have been doing in the weeks of negotiating absolutely unnecessary ?" 35 The Trial Examiner finds and concludes that Respondent regarded the possibility of disaffiliation from Local 355 and affiliation with the IUE as a serious threat to the position of Local 355 as Respondent's chosen instrumentality and that Cosentino's activity in fostering and publicizing the disaffiliation was the reason for his discharge rather than any inter- ference with production that the posting of notices may have caused. Accordingly, it is found that Respondent violated Section 8(a)(1) and ( 3) of the Act by its discharge of Cosentino on July 22, 1958. 2. John Healy John Healy was hired by Respondent 's plant manager, Prufer, as a night porter on May 5, 1958 . He was discharged on July 24, 1958 . The Trial Examiner found that Healy was a witness who manifested a conscientious regard to answer questions as truthfully and as accurately as possible . He was active in an interfaith committee headed by Archdeacon Saunders of the Protestant Episcopal Church. The com- mittee was composed of ministers and rabbis , and it offered its services in labor- management situations to both unions and employers . Healy, at his previous place of employment , Republic Aircraft, had been an interfaith chairman of a group that had representatives of management and of the Union in the panel . It was the Trial Examiner's estimate, based upon his observation of witness Healy and his testimony, that he was a cut above the average employee engaged -in night porter work, both with respect to intelligence and with regard to interest in his work. In the course of his work Healy was repeatedly complimented on his performance by Prufer and by other people in the plant. Prufer had indicated to Healy that there was a possibility of advancement for him. Prufer testified that when Healy first came to work he was an ambitious , good employee, who worked hard, did not drink, and Prufer was very pleased with him .36 The plant manager also stated that on the day he discharged Healy he told the latter that during his probationary period he had shown that he would not fit into Lundy and that his primary offense was that he Prufer testified : Q. Were you asked [at the unemployment hearing] : "Do you contend , is it your testimony, then, that management decided that this notice of the new election was what you call a promotional activity ?" That is on page 15. You answered : "Absolutely , because we sat around the table with this man here. He was a mem- ber of the negotiating committee of Local 355." Mr. DUBLIRER : The word "local" doesn't appear. Q. It reads "member of the negotiating committee of 355 . In good faith manage- ment dealt with that committee and an agreement was reached ." Were you asked that question and did you so answer? A. In substance, yes, that's correct. Q. Then , did you continue : "And all of a sudden we noticed this promotional activity going on in the shop." Did you so answer? A. Yes , but I want to make clear that the promotional activity was the reason why Cosentino was let go. Q. Well, the sentence reads : "We considered him a good employee until we found out different." What did you mean when you said "until we found out different"? A. In that relation , as a man who sits around a conference table with us, like others on the committee. We trust these people and we have faith in them. We come to an agreement. We negotiate. Q. Did you feel that he had betrayed the company by putting up the notices? A. While he was actively engaged on one committee team and then worked on another-I am speaking personally now-I judge him then, yes . . . . Q. He betrayed the company? A. Yes. Q. He was disloyal? A. To me , yes, working on the committee at one end and then working with another committee at the same time . . . . as Healy gained some overtime pay by coming to the plant on Saturdays where he watched instruments in the engineering department and made recordings of various readings. He had instructions to shut off the motor if anything went wrong. LUNDY MANUFACTURING CORPORATION 1205 constantly talked. At the hearing Prufer stated that Healy engaged people in long conversations and that these people said that they were unable to get rid of Healy on such occasions. No person whom Healy allegedly engaged in long conversations and who complained of being unable to get rid of him was called as a witness. Counsel for Respondent in oral argument asserted that Healy's testimony showed that he rode his hobbyhorse, i.e., the interfaith movement, in the plant. Healy's working hours commenced at 4:15 p.m. and the production and plant maintenance employees ceased work at 4:30 p.m. Respondent did not have a second shift during the period of Healy's employment. While some personnel did work overtime when necessary it is apparent that there were relatively few people in the plant during the major portion of Healy's working hours 37 Under cross-examination by Respondent, Healy, in the Trial Examiner's opinion, gave candid and truthful answers to Respondent's questions about talking in the plant. For one thing, Healy testified that in his short period of employment by Respondent, he knew very few of the people in the plant. When asked whether he had discussed the interfaith movement with employee Kopor, he said that he did on one occasion when he was sweeping near Kopor. He told Kopor that there was an interfaith group at Republic Aircraft but Kopor said he was not interested and the subject was dropped. When the Local 355 steward had Healy join the Union, as required by the contract, Healy mentioned that both labor and management were in an interfaith group at Republic and he asked the steward if he thought Local 355 would be interested in such a thing. The steward replied, "absolutely no," and "this Union was not interested in anything decent." 38 That ended the conversation with Ellis. Healy also stated that Brose, a personnel official of Respondent, who interviewed him initially when he applied for work, used to ask him thereafter about his job, how he liked it, what was he doing. Healy testified that on one occasion Brose invited him into his office to talk about the interfaith movement. He asked Healy if he would give him the name of the Republic Aircraft official that worked in the group with him, that he (Brose) would contact this official and see how the program worked. Healy gave him the name. The remaining instance involved a man in an office next to Brose whose name and position Healy did not know. Healy said that he and this man thought they recognized each other from a prior company and got to talking which led to one conversation about the interfaith group. Healy testified that he saw a notice in the plant announcing a Local 355 meeting to ratify the contract and asked Prufer's permission to attend. Prufer gave him permission. This meeting that Healy attended is evidently the July 15, 1958, meeting previously described above. It was at this meeting that Tolkow took the position that the contract had been approved by the committee and that he was simply going to read the contract highlights. Cosentino and other committeemen repudiated Tolkow's position and the meeting ended in argument and confusion. At one point in the meeting Healy asked Tolkow if they were there to ratify the contract and was told by Tolkow to sit down because he was there only to listen to the reading of the contract. The next day Prufer came over to Healy while the latter was sweeping shavings in the machine shop. Prufer asked him how he was and how he was coming along with his work. He then asked Healy why he had asked the questions that he did ask at the meeting. Healy told Prufer that he felt that what went on at the union hall was strictly union business. Prufer then asked whether Healy knew Cioffi well. Healy said, no. Prufer said he could not understand why an intelligent fellow like Healy would do the things he did at the meeting although he could understand why Cioffi would. Prufer said he liked Healy's work very well and that he had a future at Lundy's and did he not think that he had acted a little too hastily. Healy said that at a union meeting he felt like a free man. Prufer then said, "all right, Jack, don't worry about it, you are doing a good job, keep up the good work and every- thing will be all right; you will find out that you have a good union and a fine contract." About a week later Healy saw another notice of a meeting and he secured Prufer's permission to attend. This was the July 22 disaffiliation meeting. Healy returned to his work in the plant after the meeting. Either that night or the next night, Healy, who was alone in the plant, saw Prufer and Barbato come in together at 10 or 11 p.m. 37 Prufer testified that Healy got in his talking during the initial portion of his work- ing period when there were others in the plant. 88 Healy testified that he believed the steward' s name was Ellis. The Trial Examiner notes that Ellis Mestell was a Local 355 steward in 1958; he was in Respondent's employ at the time of the hearing and was present and testified thereat. 535'828-60-vol. 125-77 1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thereafter, Prufer came over alone and talked to Healy. Prufer asked Healy if he had been at the meeting and Healy said, "Yes." He then asked Healy what he thought of the meeting. Healy said he was reluctant to discuss union business in the shop. Prufer said he knew much more about the meeting than Healy thought he did. He asked Healy whether he had signed a card and Healy said, "Yes." Prufer asked what union it was and was told it was the CIO or IUE. Prufer remarked that the CIO will never get into this plant; we will close the doors first. Prufer asked Healy the name of the head of the Union and Healy wrote the name on a piece of paper and gave it to Prufer. Prufer asked Healy if he did not think the JAM would be better than the CIO. Healy said he did not have the choice since the membership had expressed its choice and it preferred the union they accepted at the meeting. Prufer said, "there were not many in favor, were there." Healy said the people were overwhelmingly in favor of the Union. Prufer asked what Healy thought the Union would do. Healy said that, based on what he had heard at ,the meeting, the Union would send a telegram to the Company. Prufer asked whether Healy thought the Union would conduct a campaign. Healy replied that he thought it would wage a hard and vigorous campaign linking Barbato, Johnny Dio, and Tolkow in a very unfavorable sense. Prufer asked Healy if he thought that was a good thing. Healy replied that while he would feel sorry for Barbato, Healy was aware of the Kennedy hearings. Prufer asked Healy whether he had belonged to a union at Republic and was he not connected with some kind of a church organization there. Healy said he had belonged to a union at Republic and that he had an interfaith group there that took in both company and union and tried to establish better relationships be- tween all. Healy went on to tell Prufer about his group and about Archdeacon Saunders, the chairman, and how the movement offered its services to both union and company. Prufer expressed enthusiasm for the idea and asked Healy if he thought he could get the committee to assist in the Lundy situation. Healy ex- plained that the committee would have to be called in by both sides and he asked Prufer if he would be interested in the committee. Prufer said he would. Healy agreed to contact the Union and said that if the Union expressed interest in having the committee enter the picture he would send telegrams to the Company and the Union and they could then invite the committee. Prufer said, "fine," and remarked about the possibilities of company expansion and the opportunity for Healy who, Prufer said, was an intelligent fellow, doing good work. Prufer said he would discuss the whole situation with Barbato. That night Healy observed Prufer and Barbato leave the plant together.39 The following morning Healy contacted the IUE and then telephoned Saunders, advising him that both Company and Union would be interested in having the com- mission enter the picture. Healy then sent telegrams to the Company and to the IUE, suggesting that, in view of the existing situation, they request conciliation or mediation services of the committee. When Healy reported for work on the afternoon of the same day, aforementioned, his timecard was missing. Prufer told him that he had to let him go. He said that Barbato had received the telegram. Healy told him that Prufer had asked that the telegram be sent. Prufer also stated that they were not satisfied with Healy's work. Healy reminded Prufer how he had praised his work and said that he had given the Company faithful service and had tried to help the Company in a labor dispute. The Trial Examiner finds and concludes that Healy was a good worker, and he is not convinced that Healy was discharged because he talked excessively to people in the plant. The evidence with respect to Healy's talking has been described, including the relatively limited opportunities, due to his hours of work, that Healy had for such talking. The Trial Examiner is unable to find any direct evidence that people in the plant were annoyed by Healy and that they were unable to get rid of him. Healy, in the course of testifying, displayed a good memory and he gave specific instances of conversations with specific people in the plant. His testimony in this respect was uncontroverted by the persons involved. Based upon observation of Healy, it is the Trial Examiner's opinion that although Healy was a firm believer in the value of the interfaith movement he was not' an insensitive aggressive type who would seek to :force his views or an exposition thereof upon anyone who dis- played a lack of interest in or opposition to such views. As a matter of fact, Healy's testimony and his demeanor indicate that he would discuss his views only when his auditor displayed interest and receptivity. Moreover, Healy was not only a new employee but he occupied a rather humble job in Respondent's plant. au Prufer denied substantially all Healy's testimony regarding conversations between the two. In appraising Healy the Trial Examiner has considered various possibilities that might affect or cast doubt on his veracity, but after careful deliberation, Healy is found to be a credible witness. LUNDY MANUFACTURING CORPORATION 1207 It is difficult to conclude that any of Respondent's officials to whom Healy spoke or any of the employees would have any real difficulty or diffidence in terminating unwelcome consersation with Healy. There is no evidence that any admonition or criticism was given to Healy prior to his discharge. Prufer's conversation with Healy after the July 15 meeting discloses concern that Healy had spoken out at the meeting in a way that was hardly indicative of a 100 percent pro-Local 355 attitude.40 However, it would appear that this was probably only the inception of any doubts that Prufer entertained concerning Healy's reliability in plant union affairs. The conversation, shortly after the July 22 meeting, indicated that Healy was not a malleable idealist but was a believer in legitimate unionism and that he had joined the IUE. Prufer displayed interest in the -interfaith committee and suggested that Healy invoke its services. Healy said he would contact Saunders and the IUE. On July 24 Healy sent the following telegram to Respondent and to the IUE: Due to existing union company relationship suggest requesting conciliation or mediation services of Arch Deacon Saunders, chairman Bishops Committee on Labor and Management Diocese of Long Island. The foregoing telegram arrived in a period of rather crucial events, including the notice of the disaffiliation meeting, the discharge of Cosentino on July 22 for helping to promote disaffiliation from Local 355 and affiliation with the IUE, the accom- plishment of disaffiliation on July 22, as known by Prufer, the beginning of the 1UE campaign with the distribution of leaflets on July 23, the IUE telegram to Respond- ent on July 23, and all amid the constant efforts of Respondent and Local 355 to secure the ratification and execution of their 1958 contract. The telegram, in effect, constituted a recognition of the disaffiliation from Local 355 and the affiliation of the employees with the IUE as a fait accompli. It ignored the existence of Local 355 and proposed to accord recognition to a union-management dispute in the plant by calling in outside mediation services. It was directly contrary to Respondent's posi- tion, as expressed by Barbato on July 24, that Respondent bad a contract with Local 355. Respondent and Tolkow of Local 355 had no dispute and had no interests to be served by the incursion of an impartial outside mediation group at that stage of their relationship, particularly if the IUE and not Local 355 was the union involved. Whether, Prufer, when he told Healy that he would be interested in the services of the interfaith committee, miscalculated the possible reaction of Barbato, or whether Prufer had second thoughts after Respondent received Healy's telegram, the fact remains that Healy was summarily discharged a few hours after Respondent's receipt of the telegram. There was no precipitating instance of Healy's talking to anyone in the plant and Respondent's reference to the probationary period as a factor in the discharge is unconvincing.41 The Trial Examiner finds that Respondent' s manifest policy of assisting and protecting the status of Local 355 and its policy of opposition to other unions or to any person or policy that posed a threat to Respondent's aforesaid union policy was the motivating factor in Healy's discharge. Healy was discharged because he had joined and adhered to the IUE and because he sought to bring about mediation and conciliation between Respondent and the IUE, the union that a majority of Re- spondent's employees apparently had joined after seceding from Local 355. Any form of recognition of the status of the IUE among Respondent's employees was diametrically opposed to Respondent's policy of sponsoring Local 355 and of oppos- ing anything at variance with such policy. In the Trial Examiner's opinion Healy's action of joining the IUE and seeking or proposing to bring about understanding between his employer and the Union 40 Healy asked Tolkow if it was a contract ratification meeting. Tolkow's rejoinder and general conduct at the meeting, where he had announced that the contract had previously been ratified, made it clear that Healy was being less than helpful. -As a new employee Healy's probationary period would have ended August 5. Re- spondent apparently intends to imply, in the case of both Healy and Cioffi, that it was only during the probationary period that it could discharge employees or could do so without Incurring a great deal of trouble, presumably from the Union, Local 355. There is nothing in the record to warrant the conclusion or inference that Respondent could not or did not terminate employees at times other than the probationary period. While the contract provides a grievance procedure, there is no evidence that Local 355 was assiduous in its use. The one instance of a layoff of about six employees indicates that Local 355 was less than a gadfly in the matter. As far as appears, the Union processed no grievances regarding the terminations of Cosentino or Schreiber or otherwise con- cerned itself with the matter although neither of these employees was a probationary employee. 1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD through the medium of an impartial group of conciliators was activity protected by Section 7 of the Act. The Act's protection is not limited to the extremes of an employee opposing or refraining from joining a union or of joining the union and supporting it against an employer but embraces conduct calculated to bring the employer and the union together since this latter method can also facilitate collective bargaining for all employees and contribute to their mutual aid and protection. The Trial Examiner finds that Healy's telegram of July 24 proposing mediation or conciliation between Respondent and the Union, in the circumstances herein de- scribed, was the precipitating cause of his discharge and that the discharge was violative of Section 8(a)(1) and (3) of the Act. 3. Frank Cioffi Frank Cioffi was hired by Respondent as a gearcutter on June 5, 1958. He was discharged on July 22, 1958. Respondent, after setting up several machines for gearcutting work in the plant, had advertised for a gearcutter. Cioffi was inter- viewed in April 1958. There were several other applicants whom Respondent was considering for the job, and Prufer directed Machine Shop Superintendent Jaeck to interview Cioffi and some of the other applicants who had been screened by the personnel department. Cioffi, whose references of prior employment in gearcutting work were checked by Respondent, was selected and hired by Jaeck, following an interview by the latter.42 Prufer approved the hiring of Ciof l after going over his application. Prufer testified that he had told Cioffi of the growth potential in the new job and that the man going into the new gearcutting section would be in on the ground floor and would have a good chance to be in charge. Cioffi testified, without contradiction, that Respondent had originally offered him $2.25 per hour, which he had refused. He was then offered $2.40 with the statement that the rate could soon be brought up to $2.50 and with a good prospect of further advancement in the new section. Jaeck took Cioffi around the machine shop and told him to acquaint himself with the gearcutting machines, explaining that because of some missing equipment they were not yet ready for use. Cioffi busied himself getting the machines in order and in designing some necessary arbors. He discussed tooling with various equip- ment suppliers to whom he was introduced and with Respondent's tools and methods supervisor. After 2 weeks of the foregoing, Cioffi asked Jaeck for some production work until his section got into full operation and he was given a lathe to operate. He worked for a few days on the lathe, including several days of overtime. Jaeck, who admittedly was not given to superlatives told Cioffi that he was doing all right. Cioffi received no complaints about his work or his attitude. About 4 or 5 weeks after he had been in Respondent's employ, Cioffi was told that it was necessary to join the Union. When he raised some question about the payments required, he was told by the union steward not to ask questions. Cioffi then went to Prufer, who apologized for the manner in which the matter had been handled. Prufer said, "We have an organization here that gets along fine, and we want to keep it that way." Cioffi remarked that under the conditions he did not care particularly about staying with the Company without knowing where he stood. He said he would like to know if the Company regarded him as an asset. Prufer replied that the reports he had received had proven to him that Cioffi was qualified to handle the section and that he felt that the section would expand, with the additional men coming under Cioffi's jurisdiction. Apparently the first meeting of Local 355 that Cioffi attended was the July 15 meeting, announced as a contract ratification meeting. This meeting has been described previously. At the meeting Tolkow's position was that the contract had been approved by the committee and that the meeting was only to review the highlights thereof. Cosentino led the challenge to Tolkow's contention that the committee had approved the contract. But it was Cioffi who raised a more funda- mental issue and one calculated to be more troublesome to Tolkow. Cioffi said that he did not believe that a contract could be effective unless it was ratified by the membership and signed. Tolkow and Cioffi argued publicly about the matter, with the former contending that a verbal agreement (of the committee) was binding. Tolkow characterized Cioffi as a Philadelphia lawyer. Following this meeting Cioffi arranged with others that he would contact the IUE. The next day, July 16, Prufer spoke to Cioffi in the plant. Prufer asked if he was a member of Local 355, and Cioffi said he was. A day or two later Prufer 42 Cioffi's experience included work as a gearshaper at Curtiss Wright Corp., a gear- cutter at National Gear & Machine Co., and a gearhobber at Reeves Instrument Corp. LUNDY MANUFACTURING CORPORATION 1209 again initiated a conversation with the employee. Prufer said he understood that Cioffi was interested in cost estimating, and the latter replied affirmatively. Prufer remarked that Cioffi was an ambitious fellow and could go a long way at Lundy. He then asked Cioffi, "Are you sure that everything is all right as far as the Union is concerned?" Cioffi said, "Yes." Prufer said that reports had gotten back to him that there was a little commotion at the meeting. Cioffi said it was all over with. Prufer had also spoken to Healy about the July 15 meeting. He had alluded to not only Healy's conduct at the meeting but had also referred to Cioffi's conduct. As is more fully disclosed in the details set forth above, under Healy, Prufer was concerned by the attitude displayed by Healy and Cioffi at the meeting. On Tuesday, July 22, the day the notices of the disaffiliation meeting were posted in the plant, Jaeck came to Cioffi about 15 or 20 minutes before the lunch hour. Jaeck had Cioffi's pay and told him that he was through. When asked for the reason, Jaeck said, no reason, but said that Cioffi could see Prufer if he wished. Jaeck and Cioffi then went to see Prufer. The latter said he had no explanation for Cioffi, "We just do not care for your attitude." Cioffi said he thought he had been doing his job pretty good, that he had designed arbors and tools and set up the department. Prufer said he thought so too but "now you are through." Cioffi again asked regarding the reason , and Prufer replied that he did not have to give a reason, that they did not care for Cioffi's attitude. In the course of the conversa- tion, Cioffii said that he guessed he had blown his cork at a meeting and it did not rub right with Prufer. Prufer replied, "That ought to teach you to keep your mouth shut." Cioffi asked , "Then that is the reason I am being fired." Prufer said, "Don't put words in my mouth , you are just through ." Jaeck was present during the foregoing conversation and afterwards he walked with Cioffi as the latter was getting his tools. Jaeck said he was sorry this happened, that he knew nothing about it. Prufer testified that when he discharged Cioffi he told him that his work was not satisfactory and that he did not fit into the plant. He stated that when Cioffi asked whether the Union had anything to do with the discharge, he replied in the negative . In general, Prufer denied having made the statements ascribed to him by Cioffi on July 22. Prufer stated at the hearing that, in June, Jaeck had told him that Cioffi was not a speed merchant. Jaeck had also told him, according to Prufer, that Cioffi took a relatively long time in making setups and that he objected to being transferred from one machine to another. The foreman of the lathe department, Edel, who was a subordinate of Jaeck, had told Jaeck and Prufer, according to the latter, that Cioffi was not a good lathe operator and that he acted like a foreman. On the morning of July 22, Prufer said he spoke to Jaeck and told him "we should make up our minds about Cioffi because his probationary period was coming to a close." Jaeck allegedly replied that "we ought to let Cioffi go during his proba- tionary period." This was the first time, according to Prufer, that Jaeck had said anything about discharging Cioffi. There is no evidence that Prufer or any super- visor had ever spoken critically to Cioffi about his work or his conduct. The Trial Examiner is cognizant of the fact that Respondent legally could dis- charge Cioffi for any reason or for no reason and that union activity is not a mantle to safeguard inefficient or unsatisfactory employees. However, we must ascertain from the evidence whether or not Cioffi was discharged because he was an inefficient workman or because of his activity in publicly opposing and, tempo- rarily at least, thwarting the official position of Local 355 and posing a threat to the incumbency of that Union. On this record there is no need to reiterate Respondent's strong espousal and commitment to Local 355 and its opposition to other labor organizations. The evidence also manifests that Respondent and Local 355 were as ong in their desire to have the 1958 contract ratified and signed . We have seen that Cioffi had chal- lenged Tolkow's basic premise when Cioffi had stated at the July 15 ratification meeting that the contract was not binding until it was ratified by the membership and signed. Healy's, as well as Cioffi's, credited testimony establishes that Prufer was aware of the position taken by Cioffi at the July 15 meeting and that he did not approve of it. In this context the notices of a meeting to disaffiliate from Local 355 and to affiiliate with the IUE appeared during the morning of July 22. It was on this morning that Prufer, according to his testimony, went to Jaeck and told him they should make a decision about Cioffi because his probationary period was coming to a close. It was then for the first time that Jaeck allegedly recommended the 1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharge 43 The urgency of the situation is not apparent unless it be that the threat to Local 355 in the form of disaffiliation was now direct and imminent. Cioffi, although a new employee , had marked himself as an opinion leader among the employees, and his leadership was in a direction contrary to that of Respondent and Local 355. Other than this factor, we find Prufer, on a morning when he testified that there was confusion and excitement throughout the plant because of the notices and when foremen and other supervisors were coming to him with reports of commotion and with a half dozen or so notices that they had removed, going to Jaeck about making, forthwith , a decision on Cioffi because his probationary period was coming to a close. . Cioffi had been hired June 5 and , under the 90-day probationary period then in effect, his period would end September 5. Notwith- standing this lack of genuine urgency , Cioffi was discharged in the forenoon without awaiting the end of the workday .44 A more effective coincidence , from the stand- point of Respondent with the interest and motives manifested by this record, than the discharge of Cosentino and Cioffi on the day of the scheduled evening disaffilia- tion meeting, is not readily envisaged. The record does not show any legitimate precipitating cause for Cioffi's discharge on July 22. He is not alleged to have been remiss in conduct or in efficiency on that day or on the preceding day. Respondent, however, in the testimony of Prufer, has contended that Prufer had reports, over a period of time, from Cioffi's super- visors, Machine Shop Superintendent Jaeck , and general foreman of the lathe department , Edel, that Cioffi was slow, that he did not seem to like being shifted around, that he was not a good lathe operator , and that he had acted like a foreman. Respondent had spent considerable time and money in screening applicants for the job of gearcutter and had finally selected Cioffi, after a personal interview by Jaeck. Additional expense was incurred during the initial period of employment when Cioffi was helping to put into operation the new section and was designing various tools for the new machines. During such a period the amount of actual production coming from the new section was necessarily not great . In spite of this investment,45 no supervisor ever spoke to Cioffi about alleged unsatisfactory aspects of his work or his conduct . No attempt was made to see if Cioffi's alleged derelic- tions could not be corrected during his probationary period. The faults of slowness, seeming reluctance about being shifted from various machines , and acting like a foreman, would appear to be readily correctible by supervision telling the employee that greater output was expected, that shifting was to be expected , and that he was not to act like a foreman . In the absence of corrective action by the employee, termination for continued uncorrected faults could carry a strong degree of plausi- bility.46 As to the assertion that Cioffi was not a good lathe operator , it is to be observed that Cioffi was hired as a gearcutter and, as Prufer testified, he was to operate the machines in the new gearcutting section. Cioffi testified that while certain tooling and other preliminary aspects of the gearcutting equipment were being taken care of, he asked Jaeck to keep him busy on some other work. He then was assigned to a lathe on which he worked for a short period including several days of overtime time.47 Other than Prufer's testimony, there is no evidence regard- ing Cioffi's work or conduct as a lathe operator or otherwise . It is possible that Cioffi was not a first-class lathe operator, but the cogency of the evidence on this aspect as well as on other aspects of Cioffi's work and conduct is less than compelling when viewed as a whole. Neither Jaeck nor Edel, the immediate supervisors of 4a At another point in his testimony, Prufer stated that he did not discharge Cioffl. He said that Jaeck discharged him after he went to Jaeck on the morning of July 22 and said to Jaeck, "Let's discharge Cioffr." 44 Respondent apparently had no replacement for Cioffi immediately available. A new gearcutter operator was secured 2 or 3 weeks after Cioffi's discharge. 45 The term "investment" comports with a concept recognized by employers, whether in private industry or in government. The time spent by an employer in training and developing a new employee represents an outlay by the employer. The potential return on this outlay is defeated by early or frequent turnover of personnel. 40 While, as a general proposition, an employer may act arbitrarily or unreasonably in dealing with its employees and is under no duty to warn or to criticize employees before taking the more drastic action of discharge, the appraisal of the plausibility or veracity ,of an explanation for a discharge, in a context such as the instant one, necessarily entails a consideration of all facets of the reason or reasons advanced as an explantion and defense. 17 In the period subsequent to Cioffi's discharge Respondent had a full-time gearcutter, supplemented by a helper. The gearcutting section , from the time of Cioffi's employment, was developing and expanding and additional machines were on order. LUNDY MANUFACTURING CORPORATION 1211 Cioffi, who possessed firsthand knowledge of the employee's work and conduct, were called as witnesses although they were in Respondent's employ at the time of the hearing. Moreover, even assuming the failings ascribed to Cioffi in Prufer's testimony, the Trial Examiner is not persuaded that these were the motivating and determining factors in Cioffi's discharge. In this connection, the Trial Examiner has credited the testimony of Cioffi as set forth hereinabove. With the exception of the conversation between Prufer and Cioffi at the time of the latter's discharge, Cioffi's testimony, for the greater part, is not controverted. On the matter of Prufer's interest in, knowledge of, and dis- pleasure at the role of Cioffi in opposing Local 355, and Prufer's concern over disaffiliation, the credited testimony of Healy lends corroboration. Cioffi's testi- mony that on July 22, when he asked Jaeck why he was being discharged, the latter replied that there was no reason and that he was sorry about the discharge and had known nothing about it, is uncontroverted. Jaeck was present during the conversa- tion, on the same day, when Cioffi remarked to Prufer, that he. guessed he had blown his cork at a union meeting and that did not rub right with Prufer. According to the credited testimony of Cioffi, Prufer replied, "That ought to teach you to keep your mouth shut." The Trial Examiner accordingly finds that Cioffi was dis- charged, in violation of Section 8(a)(1) and (3) of the Act, because of his public opposition to Local 355, commencing at the meeting of July 15, and that the culmi- nating factor in the discharge was Respondent's alarm at and hostility to the prospect of a disaffiliation of its employees from Local 355 and their affiliation with the IUE as evinced by notices of a meeting for such purpose on July 22. The elimination of Cosentino and Cioffi, the two most articulate opponents of Local 355 on the question of contract ratification, a few hours before the disaffiliation meeting, was a move consistent with Respondent's clearly delineated policy of support for Local 355 and opposition to any other union. 4. Richard Schreiber Richard Schreiber had been employed by Respondent since August 1955 as a storekeeper in the stockroom. In this latter place were kept various parts and materials in a series of bins. The storekeeper took the incoming material from the receiving inspection section, placed it in stock, and entered it on bin cards; he also took out material that was issued or requisitioned and made the appropriate notation. Schreiber was made group leader in the stockroom in 1957. As group leader he was hourly paid and he testified that he received no increase in salary when he was made group leader. His wage rate was higher than that of the other two store- keepers, Lewis and Snediker. The only instruction that Schreiber had received regarding his duty as group leader in the stockroom was that he would distribute the work. There is no evidence that he possessed or exercised the functions of a supervisor, and the Trial Examiner finds and concludes that Schreiber was not a supervisor as defined in the Act 48 In 1957 or 1956 an inventory of stock was conducted at Respondent's plant. Also, in 1957 or early in 1958, a new bin card system or inventory control system was set up by Brensic, the production planning supervisor, Passanante, assistant to Brensic, and Schreiber. Among other duties, Brensic had supervision over the stockroom. Prufer, who came with Respondent in September 1957, testified that shortly after assuming his duties he had spoken critically to Brensic and to Schreiber about the way the stockroom was being run and that the new system of stock control had been set up at his direction as a result. Finally, in about July 1958, Prufer asked for and obtained Brensic's resignation because of Brensic's failure to straighten out conditions in .the stockroom. An inventory was scheduled to be taken during the plant vacation period in the first 2 weeks of August 1958. Morris, Respondent's controller, was to be in overall charge of the inventory. The participants were to include Schreiber and Lewis from the stockroom. Schreiber had originally informed Prufer that he would be present for the inventory. About a week or so before the scheduled inventory Schreiber told Prufer that he could not be present because the man with whom he customarily rode to work would not be working, and Schreiber did not have transportation. Prufer testified that Schreiber's attitude surprised and annoyed him. He explained that as head man in the storeroom for a number of years he expected that Schreiber 48 The Trial Examiner has found it unnecessary to resolve herein the question of whether other group leaders of Respondent, particularly •Specht, are or are not super- visors since their role with respect to the issues of this case did not appear to be determinative. 1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would have a deep interest in the inventory and would want to see that it was conducted properly and to know what was going on. After the vacation period and the taking of the inventory Schreiber was advised that discrepancies had been discovered, and he was warned about his work. Schreiber went over certain items with Morris and a man from Morris' office in an effort to explain or straighten out various discrepancies. Complete figures and a full report on the inventory were not issued until about the middle of September. Barbato testified that he received the final inventory report on September 19. Pre- viously, Morris and Prufer had told him that there were a number of discrepancies, and he had asked for a complete report. After going over the report with Prufer and Morris, Barbato summoned Passanante to his office. Passanante had succeeded to Brensic's position after the latter resigned, just before the vacation period and the taking of the inventory. Passanante had not assumed his duties until after the vacation and he had not participated in the inventory. Barbato asked Passanante if he could explain such major discrepancies and asked who was responsible. Pas- sanante had no explanation to offer and said that Schreiber was in charge of the storeroom. At Barbato's direction, Passanante brought Schreiber to the office. Barbato showed the latter the inventory report. Seven hundred items, representing 30 percent of the inventory and in dollar value about fifty or sixty thousand dollars, were unaccounted for. Barbato asked Schreiber for an explanation. Schreiber testified that he said he was not responsible for the shortages and overages. He explained that he thought that the inexperienced help used in taking the inventory had made mistakes because subsequently he had found many errors that indicated that the bin card figures were right and that the inventory itself was wrong. At the hearing Schreiber explained that he had conducted the stockroom in accordance with Brensic's instructions, including not keeping cards on various items. He also said that in the past a real inventory had not been conducted and that figures from old cards had been copied on cards of the new system. He mentioned that when the plant moved to Glen Head no inventory had been taken. The inexperienced help to which he referred were some college students who had helped in taking the inventory. Lewis, a storekeeper, and Morris and people from his office who had participated in the inventory in various phases were not inexperienced. Barbato testified, without contradiction, that he was in the plant during the vacation and inventory and that Lewis was in immediate charge of the inventory crew. Barbato was not satisfied with Schreiber's explanation for the discrepancies, and on the occasion aforedescribed he told Schreiber that he had in.the past excused his absences and problems, but he was unable to do so now. Schreiber was thereupon discharged. While employed by Respondent, Schreiber had attended various Local 355 meet- ings, including the July 15 meeting. At this meeting he had asked Tolkow if it was a contract ratification meeting. He became active in the disaffiliation and in the IUE movement thereafter. The Trial Examiner is of the opinion and finds that the General Counsel has not sustained the burden of proving that Schreiber was il- legally discharged. There is no reasonable basis on which to conclude that the August 1958 inventory was conjured up for the purpose of getting rid of Schreiber. The latter's absence from participation in the inventory was not foreseen and was unexpected. While it may be that the state of the stockroom and its records was attributable to practices going back a number of years, it is also true that Schreiber's former supervisor, Brensic, had been asked to resign in July 1958 because of Respondent's dissatisfaction with the way in which the stockroom was being conducted. In addition to Brensic's termination, Passanante, who succeeded Brensic as supervisor, had been demoted not long after Schreiber left because Passanante had not succeeded in straightening out the stockroom. Passanante had resigned from Respondent's employ in the face of the demotion. The fact of major dis- crepancies revealed by the inventory is clear and the Trial Examiner is not persuaded that the discharge of the head storekeeper was pretextious in nature. The portion of the complaint alleging that Schreiber was discharged in violation of Section 8(a) (1) and (3) of the Act is therefore dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among LUNDY MANUFACTURING CORPORATION 1213 the several States, and tend to lead to labor disputes obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Since it has been found that at no relevant time did Local 355 represent an un- coerced and unassisted majority of Respondent's employees in an appropriate unit and since Respondent has continued, maintained, and enforced contracts with il- legal union-security provisions, it will be recommended that Respondent cease giving effect to such agreements, or to any extensions, renewals, modifications, or supplements thereto or to any superseding agreements, unless and until Local 355 shall have been duly certified by the Board as the representative of Respondent's employees in an appropriate unit. Nothing herein, however, shall be construed as requiring the Respondent to vary any wages, hours. of employment, rates of pay, seniority, or other substantive pro- visions in its relations with the employees themselves, which Respondent has estab- lished in the performance of said agreements. Inasmuch as employees have been required to become and remain members of Local 355, as provided in the aforementioned agreements, and Respondent has deducted periodic dues from wages of employees for remittance to Local 355, it will be recommended that Respondent be directed to reimburse individual present and former employees for any dues or initiation fees deducted from their wages, commencing with the applicable 6-month period.49 It has been found that Respondent illegally discriminated against Cosentino and Cioffi, by discharging them on July 22, 1958, and illegally discriminated against Healy, by discharging him on July 24, 1958. Recommendation is therefore made that Respondent offer Cosentino, Cioffi, and Healy immediate reinstatement to their former or substantially equivalent positions and make them whole for any loss of pay sustained by each of them, computation to be made in the customary manner.50 Upon the basis of the foregoing findings of fact and conclusions already stated, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Lundy Manufacturing Corporation is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Amalgamated Local Union 355, and International Union of Electrical, Radio and Machine Workers, AFL-CIO, and International Association of Machinists, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. 3. By discriminating in regard to the hire and tenure of employment of its employees, thereby discouraging membership in the International Union of Elec- trical, Radio and Machine Workers, AFL-CIO, and thereby encouraging member- ship in Amalgamated Local Union 355, the Respondent has engaged in and is en- gaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By assisting and contributing support to Amalgamated Local Union 355, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (2) of the Act. 5. By interfering with, restraining, and coercing employees in the exercise of their rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. FRecommendations omitted from publication.1 49 Virginia Electric and Power Company v. N.L.R.B., 319 U.S. 533; Coast Aluminum Company, 120 NLRB 1326; Adhesive Products Corporation, 117 NLRB 265. 6o Republic Steel Corporation v. N.L.R.R., 311 U.S. 7; F. W. Woolworth Company, 90 NLRB 289.