Yale Upholstering Co., Inc.

440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD through a labor organization of their own choosing , the inference is warranted that the commission of other unfair labor practices may be anticipated . It will therefore be recommended that Respondent be ordered to cease and desist from in any manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed by the Act. However, nothing in the recommended order is intended to require Respondent to rescind its insurance plan. On the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. United Steelworkers of America, AFL-CIO, and Blue Mountain District Council, Lumber & Sawmill Workers, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. 2 Kit Manufacturing Company is an employer within the meaning of Section 2(2) of the Act. 3 By discriminating in regard to the hire and tenure of employment of Elsworth Jordon, thereby discouraging membership in a labor organization, Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (3) of the Act. 4. By the foregoing, by threatening to shut down its plant in the event of union organization, by threatening employees with reprisals for engaging in union activi- ties, and by promising and instituting benefits for employees in return for rejecting unionization, thereby interfering with, restraining, and coercing employees in the exercise of the rights guaranteed by Section 7 of the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 6. Respondent has not discriminated with respect to the hire and tenure of employment of Larry O'Brien, Jr. 7. Respondent has not engaged in unfair labor practices within the meaning of Section 8(a)(4) of the Act. [Recommendations omitted from publication.] Yale Upholstering Company, Inc. and Local 149, United Furni- ture Workers of America, AFL-CIO. Case No. 1-CA-2676. April 27, 1960 DECISION AND ORDER On December 30, 1959, Trial Examiner James A. Shaw issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a brief in support thereof. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Bean and Farming]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the 127 NLRB No. 65. YALE UPHOLSTERING COMPANY, INC. 441 case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. 1. We find, in agreement with the Trial Examiner, that by initi- ating and sponsoring two employee shop committees, and by assisting, dominating, and interfering with the administration of these com- mittees, Respondent violated Section 8(a) (2) and (1) of the Act. We rely particularly on the following : On October 9, 1958, Saul Zitser, president of Respondent, called it meeting of respondent's employees and informed them that he did not intend to sign the new contract proposed by the Union, claiming that it would lead to Respondent's bankruptcy. After making cer- tain proposals regarding wages, hours, and other terms and conditions of employment to the employees, Zitser suggested that they form "committees" to "follow through" on these proposals. Immediately thereafter, the employees elected the first shop committee. On Oc- tober 29, 1958, at another meeting of employees, the first shop com- mittee was dissolved and, at the suggestion of Zitser, a second shop committee was elected. Zitser, who was present during the election, asked an employee, Charczyski, to serve on the committee. Four of Respondent's supervisors, not members of the Union, participated and voted in both meetings and one supervisor, Kaliszewski, was elected as a member of the October 9 shop committee, and two super- visors, Kaliszewski and DiNello, were elected members of the October 29 shop committee. Both meetings were held on Respondent's prop- erty and employees were paid for the time they spent at the meetings. Respondent further aided the shop committees by assisting in the drafting and typing of the petition signed by the employees on October 9, stating that they wished to be represented by a shop com- mittee; by posting a notice on company property for a meeting on October 13 during which employees were to discuss the shop commit- tee; and by furnishing refreshments to employees at the October 29 meeting and at subsequent meetings of the shop committee. Neither of the two shop committees had a constitution, bylaws, dues, or a treasury, and, although both committees were established for the purpose of representing the employees in dealing with the Respondent concerning terms of employment, neither has ever sought a contract with the Respondent. 2. We also agree with the Trial Examiner, and for the reasons stated by him, that on and after October 9, 1958, Respondent unlaw- fully refused to bargain with the Union in violation of Section 8 (a) (5) and (1) of the Act. We rely particularly on the following : The Union, on October 6, 1958, wrote to Respondent, enclosing a proposed new contract, and asking to meet with Respondent on Oc- tober 9 to discuss this contract. However, the Respondent, on and after October 9, 1958, pursued a course of dealing directly with its 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees or with its creatures, the "shop committees," concerning terms of employment. Thus, although Respondent informed the Union that President Zitser could not meet with it on October 9 because he would be out of town, on the same day Zitser called a meeting of employees, at which time he made a number of proposals directly to employees, regarding wages, hours, and other terms and conditions of employment without consulting with the Union.' At a meeting of employees on October 13, 1958, typed copies of Respond-' ent's proposals were distributed to employees and further discussion took place regarding these proposals. Richard Zitser, vice president of Respondent, who was in charge of the meeting, introduced an insur- ance company representative who gave a talk on the proposed insur- ance program. In October 1958, Respondent unilaterally instituted a group insurance program for its employees and in January 1959, unilaterally granted wage increases. At no time during this period did Respondent consult with the Union or engage in collective bar- gaining with it. 3. We also find, in agreement with the Trial Examiner, that Re- spondent committed independent violations of Section 8(a) (1) of the Act by (a) promising employee Percopa in October 1958, that em- ployees would have a longer workweek "if the Union was out" ; and (b) urging employee Thomsen in October 1958 not to "sign for the Union" and to tell other employees not to do so. ORDER 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 the Respondent, Yale Upholster- ing Company, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Assisting, dominating, or interfering with the administration of the "shop committees" established on October 9 and 29, 1958, or the formation of any other labor organization of its employees, and from contributing support to them or to any other labor organization, and from otherwise interfering with the representation of its em- ployees through a labor organization of their own choosing. (b) Recognizing the "shop committee" established on October 29, 1958, or any successor thereto, as the representative of any of its em- 1 As Respondent's 1957 contract with the Union had not yet expired on October 9, 1958, prior to the unfair labor practices found herein, the Union presumptively was at that time still the exclusive representative of Respondent's employees Shamrock Dairy, Inc, et at, 119 NLRB 998; 124 NLRB 494. Moreover, the record here indicates that 49 of Respondent's approximately 60 employees had executed checkoff authorizations to the Union, which authorizations had not been revoked as of October 9 Any defections from the Union after the events of October 9 recited in the text, above, were, we find, attribut- able to Respondent's unfair labor practices on that date, and could not therefore relieve the Respondent of its duty to continue to recognize the Union as the statutory representa- tive of the employees. YALE UPHOLSTERING COMPANY, INC. 443 ployees for the purpose of dealing with the Respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment. (c) Promising benefits to its employees for renouncing Local 149, United Furniture Workers of America, AFL-CIO, or otherwise soliciting employees to abandon their adherence to that labor organization. (d) Refusing to bargain collectively with Local 149, United Furni- ture Workers of America, AFL-CIO, as the exclusive representative of all its employees in the appropriate unit described below, with respect to rates of pay, wages, hours of employment, and other condi- tions of employment. (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right of self-organization, to form labor organizations, to join or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, or to. refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Withdraw and withhold all recognition from, and completely disestablish, the "shop committees," established on October 9 and 2.9, 1958, or any successor thereto, as the representative of any of its em- ployees for the purpose of dealing with the Respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment. (b) Upon request bargain with Local 149, United Furniture Work- ers of America, AFL-CIO, as the exclusive representative of all em- ployees in the appropirate unit described below, and, if an agreement is reached, embody such understanding in a signed agreement. The appropriate unit is: All production and maintenance employees em- ployed at the Respondent's New Haven, Connecticut, plant, excluding professional employees, clerical employees, guards, foremen, and supervisors as defined in the Act. (c) Post at its plants in New Haven, Connecticut, copies of the notice attached hereto marked "Appendix.," 2 Copies of said notice, 2 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to be furnished by the Regional Director for the First Region, shall, after being duly signed by its 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. Rea- sonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced, or covered by any other material. (d) File with said Regional Director, within 10 days from the date of this Decision and Order, a report, in writing, setting forth in detail the steps which the Respondent has taken to comply herewith. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE HEREBY disestablish the "shop committees" established on October 9 and 29, 1958, as the representaive of any of our em- ployees for the purpose of dealing with us concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and we will not recognize them or any successor thereto for any of the foregoing purposes. WE WILL NOT assist, dominate, or interfere with the formation or administration of the shop committees established on October 9 and 29, 1958, or the formation or administration of any labor organization or contribute financial or other support thereto. WE WILL NOT otherwise interfere with the representation of our employees through a labor organization of their own choosing. WE WILL, upon request, bargain collectively with Local 149, United Furniture Workers of America, AFL-CIO, as the exclu- sive representative of all employees in the following bargaining unit with respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is : All production and maintenance employees employed at Respondent's New Haven, Connecticut, plant, excluding pro- fessional employees, clerical employees, guards, foremen, and all supervisors as defined in the Act. WE WILL NOT promise benefits to employees for renouncing Local 149, United Furniture Workers of America, AFL-CIO, YALE UPHOLSTERING COMPANY, INC. 445 or otherwise solicit employees to abandon their adherence to that labor organization. WE WILL NOT in any other manner interfere With, restrain, or coerce our employees in the exercise of the rights guaranteed by Section 7 of the Act. YALE UPHOLSTERING COMPANY, INC., Employer. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge and amended charges duly filed by Local 149, United Furniture Workers of America, AFL-CIO, herein called the Union, the General Counsel of the National Labor Relations Board, herein respectively called the General Counsel 1 and the Board, by the Regional Director for the First Region (Boston, Massachu- setts), issued a complaint and notice of hearing, dated January 30, 1959, which was thereafter amended on February 20, 1959, and at the hearing herein on March 17, 1959, alleging therein that Yale Upholstering Company, Inc., herein called the Re- spondent, had engaged in and was engaging in unfair labor practices affecting com- merce within the meaning of Section 8(a)(1), (2), and (5) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act Due to the complexity of the issues set forth in the complaint and the Respondent's answer and amendments thereto, particularly regarding a variance between the original answer and as amended at the hearing herein as to the unit alleged appro- priate in the complaint (of which more anon ), the Trial Examiner feels that it would be better for all concerned to set forth below the allegations in the complaint under appropriate subsections of this report, each of which will be devoted to a particular allegation, and the Respondent's answer thereto. On or about March 12, 1959, the Respondent filed its answer to the complaint and the amendments thereto in which it admitted certain jurisdictional allegations therein and denied the commission of any of the alleged unfair labor practices. It is interesting to note that in its original answer the Respondent admitted the allega- tion in the complaints as to the appropriateness of the unit .2 Pursuant to due notice, a hearing was held on March 16, 17, 18, and 30, 1959, at New Haven, Connecticut, before the duly designated Trial Examiner. The General Counsel, the Respondent, and the Union were represented by counsel. Full op- portunity to be heard, to examine and cross-examine witnesses, to introduce pertinent evidence, to argue orally at the conclusion of the taking of the evidence, and to file briefs was afforded all parties. Counsel for the General Counsel (on May 25, 1959), and counsel for the Union and the Respondent (on June 15, 1959), filed well-drafted and comprehensive briefs on the issues herein. They have been carefully considered by the Trial Examiner. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The complaint alleges, the answer admits, and the Trial Examiner finds that the Yale Upholstering Company, Inc., is a Connecticut corporation with its principal 'This term specifically includes counsel for the General Counsel appearing at the hearing. 2 See supra. 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD office and place of business in the city of New Haven, Connecticut, where it is en- gaged in the manufacture, sale, and distribution of living room furniture. Respond- ent, in the course and conduct of its business causes, and continuously, has caused at all times material herein large quantities of its products, valued in excess of $50,000, annually, to be sold and transported from said plant in interstate com- merce to States of the United States other than the State of Connecticut. Respond- ent is and has been at all times material herein, engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 149, United Furniture Workers of America, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. For reasons which will be set forth in detail below, the Trial Examiner finds that the shop committees formed on October 9 and 29, 1959, are labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The Alleged Violation of Section 8(a)(1) and (2) of the Act As the Trial Examiner sees it no proper understanding of the issues herein could be had without some reference to the nature of the Respondent's business and its organizational setup. As indicated above the Yale Upholstering Company, Inc., is a Connecticut corporation with its principal office and place of business in New Haven, Connecticut. It is engaged in the manufacture, sale, and distribution of living room upholstered furniture. It was organized in 1926 by Saul Zitser. Since its inception it has been a "family owned" corporation. At times material herein its officers and only stockholders were as follows: Saul Zitser, president and treasurer; Morton Lavietes, a son-in-law of Saul Zitser, vice president in charge of production; Richard Zitser, son of Saul Zitser, vice president in charge of the office; and Ella Zitser, wife of Saul Zitser, secretary of the corporation. Saul Zitser is very active in the affairs of the corporation, particularly in the sale of its products. He spends a considerable portion of his time on the road, especially in New York city, where he personally handles the corporations business with Macy's, one of its principal customers. At times material herein the corporation had around 60 employees, exclusive of supervisors, clericals, and executives. The Respondent's relationship with the Union began in October 1956. At that time it recognized the Union when a committe of seven of its employees and an International representative of the Union called on President Saul Zitser and re- quested recognition of the Union as the collective-bargaining representative of its employees. Thereafter the Respondent and the Union entered into a contract for 1 year. From what the Trial Examiner gleans from the record the effective date of the contract was October 29, 1956. The contract was renewed on October 29, 1957, and was also for 1 year. The appropriate unit agreed upon by the parties was as follows: All production and maintenance employees excluding office clerical em- ployees, foremen, plant clerical employees, professional employees, guards, and supervisors and any officers of the Company for the purpose of collective bargaining in respect to wages, hours, and other conditions of employment. In passing, the Trial Examiner desires to point out that when the parties negotiated their first contract in October 1956, President Zitser not only agreed that foreman and/or supervisors should be excluded from the bargaining unit, but insisted upon it on the premise that they were a part of management. The significance of the Respondent's position in this regard will be apparent herein below. Of further significance is the fact that both the 1956 and 1957 contracts provided for a union shop and checkoff of ". . . any amounts due from such employees to the Union as initiation fees for union dues.. . ." 3 The importance of these pro- visions in the above contract will likewise be apparent below. On August 12, 1958, Francis O'Connor, International representative of the Union, sent the following letter to Saul Zitser, the Respondent's president. 8 See articles II and III, 1957-58 contract. General Counsel's Exhibit No. 2. YALE UPHOLSTERING COMPANY, INC. UNITED FURNITURE WORKERS OF AMERICA LOCAL 136-B 294 WASHINGTON STREET, Room 232, BOSTON 8, MASS. REGISTERED MAIL RETURN RECEIPT REQUESTED 447 AUGUST 12, 1958. Mr. S. ZITSER Yale Upholstering Company, Inc. 54 Grant Street New Haven, Connecticut DEAR MR. ZITSER: Please be advised of our desire to make some changes and modifications in our agreement for the ensuing year. A copy of the proposed contract changes will be sent to you in the near future, and at that time we will suggest a date for a conference. This notice is sent pursuant to the Labor Management Relations Act of 1947. Very truly yours, FRANCIS O'CONNOR, International Representative. From what the Trial Examiner gleans from the record neither President Saul Zitser nor any other official of the Respondent ever replied to O'Connor's letter. On October 6, 1958, O'Connor again wrote the Respondent and attached to his letter a copy of a proposed contract for 1958-59. This letter is likewise set forth below. UNITED FURNITURE WORKERS OF AMERICA LOCAL 136-B 294 WASHINGTON STREET, Room 232, BOSTON 8, MASS. Mr. SAUL ZITSER Yale Upholstering Company 54 Grant Street New Haven, Connecticut OCTOBER 6, 1958. DEAR MR. ZITSER : I am enclosing herewith a copy of the proposed contract, and would suggest that we meet Thursday, October 9, at 7 P.M., at your office, for the purpose of starting negotiations. Unless I hear from you to the contrary , I will presume that the above time and date are satisfactory. Very truly yours, FRANCIS O'CONNOR, International Representative. At this time the Trial Examiner feels that certain proposals in the contract for 1958-59 should be set forth herein, primarily because they were referred to by President Zitser in his speech to the employees on October 9, 1958? Article VIII, "Wages," of the Union's proposed contract for 1958-59 contains the following clause: C. All employees shall receive a substantial wage increase. Article XIII, "Leave of Absence," is somewhat different from the same relevant article in the 1957-58 contract. The proposed contract for 1958-59 reads as follows in this regard: Article XIII C. The Company shall grant leaves of absence for a period of time not to exceed six months as the request may be to employees for personal reasons without pay. A copy of all leaves of absence shall be furnished to the Union. D. In the event of death in the immediate family employees shall be granted a three day leave of absence with pay. As the Trial Examiner sees it, the above-quoted sections from article XIII, "Leave of Absence," represent substantial changes in the proposed contract for 1958-59. For example subsection C, article XIII, in the 1957-58 contract reads as follows: The Company shall grant leaves of absence for reasonable periods of time for personal reasons without pay. A copy of such leaves shall be furnished to the Union. • See General Counsel's Exhibit No 4(B). 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The 1957-58 contract did not contain subsection D, in article XIII.S The Respondent received O'Connor's letter together with the Union's proposed contract for 1958-59 on or about October 7, 1958. Shortly thereafter either Saul Zitser or his son, Richard Zitser, talked to Dominic Percopa, president of Local 149, and advised him that President Saul Zitser could not meet with International Repre- sentative O'Connor on October 9, 1958. The record is somewhat confused as to who did talk to Percopa. Both Zitsers testified that they individually had talked to Percopa in this regard. However, Percopa testified that it was Richard Zitser who told him that his father could not meet with the union representatives on October 9, 1958, because he would be out of town. In the circumstances the Trial Examiner is inclined to and does credit Percopa's testimony in this regard. Percopa called O'Connor on October 7, 1958, and gave him Richard Zitser' s message. We now come to the events of October 9, 1958, which in the considered opinion of the Trial Examiner are of the utmost importance in his ultimate disposition of the issues herein. In the main there is little variance between the testimony of the witnesses called by the General Counsel and that of the two Zitsers in this regard. To be sure there is some as to what was said by Saul Zitser in his speech to the employees, which is usually the case in similar situations. Suffice it to say that the Trial Examiner will resolve such conflicts in the light of the record considered as a whole. As the Trial Examiner interprets the record, the sequence of events on October 9, 1958, were as follows. About I or 1:30 p.m. on October 9, 1958, Morton Lavietes, Saul Zitser's son-in-law and vice president of the Company, told the employees that there would be a meeting in the shipping room. Shortly thereafter all of the em- ployees, including the foreman, assembled in accordance with Lavietes' instructions in the shipping room. The Company was represented by President Saul Zitser, Vice President Richard Zitser, Vice President Morton Lavietes, and Al Nadeau, sales manager. President Zitser opened the meeting with a request that all present bow their heads in a moment of silent prayer for Pope Pius XII, who had just passed away. After the prayer, President Zitser addressed the employees. At the onset of his speech President Zitser held up the Union's proposed contract for 1958-59 and asked employees if they had read it. He then told them that if he signed the contract it would be his "death warrant," and that he would be "out of business in two weeks." He then said in substance that he had given considerable thought to present and past relations with the Union, and for that reason had made notes on what he wanted to say to the employees. At this point he told the employees that the Company lost $10,000 the first year it had a contract with the Union, that is 1956-57, and $20,000 during the second year, 1957-58. (However on cross- examination he admitted that he had not made any computations in this regard ) He told the employees that he did not intend to read the entire proposed contract for 1958-59 to them but he did pick out two of the proposals which, from what the Trial Examiner gleans from the record, seemed to disturb him considerably. The first was the clause dealing with "leaves of absence," and the second was the clause that would require the Company to give employees who had been inducted into the Armed Forces vacation pay, while they were in the service. After he had "said his piece," so to speak, he told the employees in substance, "I know they will say this is not legal, but what's the difference, I don't intend to sign a contract anyhow." President Zitser's testimony on direct examination in this regard was as follows: Q. Now, Mr. Zitser, when you realized that the contract meant bankruptcy- there was a meeting called at the shop the next day? A. Yes. Q. Who called that meeting? A. I did. Q. And you called the entire shop in, is that correct? A. Everyone of them except the office crew. Q. Every employee except office help was called in? A. Right. Q. And when the meeting was called together, who addressed the meeting? A. I did. Q. And would you please tell the Examiner exactly what you said to your employees then9 A. If you recall, it was the day the Pope died, and I thought it no sin, or bad method, to get up and make a prayer for the Pope. After that I held the contract in my hand and I asked whether or not all of them in the room read the new contract. I got no response . I told them that the basis of the contract would 5 See supra. YALE UPHOLSTERING COMPANY, INC. 449 lead the Company to bankruptcy , I told them that I would go along with what they asked insofar as increased pays. I believe they had good welfare in there, the same amount of holidays that we had previously. I told them that because of southern competition we would be unable to get enough work for our crew, but if we went along on all the principles of the previous contract I think I could go out and get more work for them, and they would be much happier. During the course of his speech President Zitser made several proposals to the employees regarding working conditions. They were later typed up by Vice Presi- dent Richard Zitser and distributed to the employees at a meeting on October 13, 1958. The "14 proposals," as they are referred to in the record by several of the witnesses , were as follows: 1. More hours per week through better morale and all around better feelings, going out and beating competition, getting business , making stock etc. 2. No one to be laid off because of outside shop activities. 3. Seniority will be maintained in writing. 4. Insurance program to better present one. 5. A bonus program paid not just once a year but periodically. 6. A savings program for Christmas with the Company contributing. 7. Paid holidays in writing. 8. Good and welfare committee with written procedures and rights. 9. All extra privileges known previously such as radio , telephone, bull sessions, coffee breaks and etc. will be maintained. 10. More information concerning company business will be passed on to all. 11. Sample training program. 12. More recreation such as bowling teams etc. 13. Pay scales to meet and beat any shop in New England with increases as the company progresses. 14. Committees will be set up to handle all of the above A MUTUAL UNDERSTANDING TO BENEFIT EVERYONE'S TAKE HOME PAY AND WORKING CONDITIONS . TO LET THE COMPANY PROGRESS WITH EVERYONE BENEFITTING FROM THIS GROWTH. Of particular significance to the Trial Examiner is proposal No. 14, which reads: "14. Committees will be set up to handle all of the above " To the Trial Examiner at least, no statement or "proposal " by President Zitser could be more conclusive to the formation of a "shop committee" by the employees than his "veiled" sug- gestion in this regard . That this is precisely what happened within a matter of moments thereafter will be shown below. After Saul Zitser finished his speech to the assembled employees, he introduced "Al" Nadeau, sales manager for the Company . Nadeau's speech was, to say the least, on the "one big happy family " theme.6 He told the employees how happy he was to be associated with the Company after having worked for another concern for 25 years. The main point of his speech was in substance to impress upon the employees that he had no contract with the Company, but was working solely on Saul Zitser's word because he had so much faith in him . Saul Zitser testified that he did not talk to Nadeau either before or after the meeting with the employees on October 9, 1958. Be that as it may, nevertheless the Trial Examiner is convinced that Nadeau was well aware of the purpose of the meeting and uttered the words attributed to him by the General Counsel 's witness who testified in this regard. The Trial Examiner's finding in this regard is predicated not only on the testimony of the witnesses called by the General Counsel but on that of Saul and Richard Zitser as well , in other words upon the record considered as a whole. As he sees it the "one big happy family" theme runs through the testimony of the Respondent's witnesses , particularly that of Richard Zitser . An examination of Richard Zitser's testimony clearly shows that he resented the fact that he was not permitted to sit in and participate in the meetings of Local 149. While the Trial Examiner ap- preciates his feelings in this regard , and his right to express his personal opinion as to the rights of an employer, particularly in a small organization such as the Re- spondent herein, nevertheless Congress , the Board , and the courts have taken an opposite view. This is clearly evidenced by the plain language of Section 8(a)(2) of the Act. There is some controversy in the record as to whether or not Saul Zitser used the'word "Union" in his speech to the employees on October 9, 1958. After long, See infra in Richard Zitser's testimony. 560940-61-vol. 127-30 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and careful consideration the Trial Examiner is convinced that he did not, but he finds that he did say in substance that the employees could set up their own com- mittees. As the Trial Examiner interprets the record, the gist of his entire speech was to that effect as is amply demonstrated in the "14 proposals" he made to the employees. This is particularly evidenced in proposal No. 14, which reads as follows: 14. Committees will be set up to handle all of the above.? After Nadeau had finished his speech, Saul Zitser asked those present if there were any questions. Shortly thereafter Louis Curcio, an upholsterer for the Respondent off and on for 32 years, got up and requested President Zitser and those with him to leave the room, which they did. After they left Curcio got up and said to the employees, "This is it," and that he was tired of working 3 days a week and that the employees should form ". . our own Committee " The record indicates that some of the employees were in favor of Curcio's suggestion and others were opposed to it. For example, Andrew Charczynski, an upholsterer and chief steward for Local 149, at times material herein, took the floor and said to the employees in substance that ". . . I didn't think it was legal, that we should have our union representative in on this." At this point Frank J. Vercillo, an upholsterer got up and said that we didn't have to have him here," meaning the International Union representa- tive.8 Shortly after Vercillo made the above statement Percopa and Charczynski walked out of the meeting. After they left, several of the employees suggested that they "take a vote" and see whether they wanted the Union to represent them or a "shop committee" along the lines suggested by President Zitser in No. 14 of the "14 Proposals." At this point Curcio got up and pointed out to the employees such procedure would be illegal and suggested that they sign a petition and turn it over to the Board for its determination through an NLRB election. There is some variance in the record as to whether it was Curcio or Vercillo that suggested that the employees sign a petition for presentation to the Board. Even so, both Curcio and Vercillo left the meeting place and went to Richard Zitser's office and asked him to draft up a petition for an election. He obligingly did so and drafted the petition in his own language. The caption thereof was as follows: IN PLACE OF OUTSIDE REPRESENTATION, WE THE UNDER- SIGNED AGREE TO HAVE OUR OWN SHOP COMMITTEES REPRE- SENT US AS EMPLOYEES OF THE YALE UPHOLSTERING COMPANY, INCORPORATED. [Now follows-The signatures of 47 employees l SHOP COMMITTEE 1. Edith Coppola 2. John Elliot 3. Alex Kaliszewski 4. Louis Curcio 5. Charles Bopke 9 The record clearly shows that several of the foremen, who had been excluded from the appropriate unit under the Respondent's contract with the Union (which was still in full force and effect at the time of the meeting on October 9, not only participated in the meeting but signed the petition, and one of them, Alex Kaliszew- ski, was elected a member of the Shop Committee. After the petition was signed, and the Shop Committee selected, Curcio went back to Richard Zitser's office and turned the petition over to him. Zitser agreed to turn the petition over to the Respondent's attorney, Alexander Winnick, Esq, 157 Church Street, New Haven, Connecticut. On October 20, Winnick drafted an RM petition, and sent it to the Board's Regional Office, Boston, Massachusetts, where it was designated as Case No. 1-RM-306. The RM petition alleges, inter alia, the follow- ing which in the considered opinion of the Trial Examiner are pertinent to the issues herein. 7 See supra for entire text of the "14 Proposals," General Counsel's Exhibit No. S. That the employees interpreted Saul Zitser's remarks to mean that they should set up their own committee is evidenced by the testimony of Andrew Charczynski, which is credited by the Trial Examiner. 8 Quoted from the credible testimony of Andrew Charczynski. O General Counsel's Exhibit No. BE. YALE UPHOLSTERING COMPANY, INC. 451 -5. Description of unit involved. Included Upholsters, springers, operators, outsiders, cushion makers, cutters, finishers, shippers Excluded Foremen, office workers The petition was signed by Saul Zitser, as president of the Company It is to be noted that the petition is dated October 21, 1958, which was during the term of the Respondent's 1957-58 contract with the Union. Again, as has been indicated above, the petition contains the signatures of employees who had been excluded from the unit under the terms of the Respondent's contracts with the Union. The record clearly shows that the Respondent was billed for and paid the attorney fees that accrued in the handling of the RM petition before the Board. There is no evidence in the record that the Shop Committee was ever requested to reimburse the Respondent for its expense in this regard. Shortly after the petition was signed the meeting broke up, about 3:45 pm. Since it started about 1 or 1:30 p in. the employees were away from their working places about 21h hours The Respondent paid them for the time spent at the meeting. Since it was near quitting time when the meeting adjourned, the employees checked out and went home. According to the testimony of Helen Thomsen, a machine stitcher, President Saul Zitser came to her working place a few days after the meeting of October 9, 1958, and discussed the Union with her. Her testimony in this regard is set forth below: Q. Do you recall the October 9th, 1958, meeting in the shop? A. October the 9th, is that the meeting where everyone-yes, I remember the meeting on October 9th; yes. Q. Do you recall speaking to Mr. Saul Zitser around the time of that meeting? A. It was after that meeting. Q. Do you recall how long after that meeting? A. It was only a matter of days. Q And where did you speak to Mr. Saul Zitser? A. In the operating room. Q. Was anyone else there? A. Everyone was working. Q. Anyone else present at the conversation? A. Not at the conversation; no. Q. Will you tell us what he said and what you said? A. Mr. Zitser said there were poeple in the shop that did not want the union and they had asked him to do something about it. And, in fact, one of these people had come to Mr. Zitser and said, for God's sake, do something. So, Mr. Zitser said that someone had been in the office from the Union and this officer was going to go from house to house, and he said that he didn't think we should sign for the Union. Q. What else did he say? A. He said he had paid out a lot of money to the Union. Out of every $15 that he paid to the Union only $8 went to the insurance and he doesn't know what became of the other $7. Q. What did he say about signing; do you recall? A. He advised not to sign. Q. What did you say? A. 'Oh, I remember. At that time I wasn't talking to most of the operators, so, when he said not to sign, he said, tell the operators, and I said, you want me to go to each machine? I was thinking I wasn't talking to these women. He said, no, if you told one, it would get around. Thomsen's testimony in this regard stands uncontradicted and undenied, in the record, except for a generalized denial by President Zitser to effect that he never at any time made to any of his employees the statement regarding the Union attributed to him by Thomsen. The Trial Examiner has given considerable thought to this and other issues involving the credibility of the witnesses who appeared and testified before him at the hearing herein. This is always a difficult and thankless task. In resolving such questions the Trial Examiner takes the position that resolu- tion of questions of credibility must be determined by several factors, primarily upon the record considered as a whole, and never by lifting a sentence here and there out of context.10 Another important factor is the demeanor of the witnesses, 10 See The Hunkin-Conkey Construction Company, 100 NLRB 955 at 960, et seq. 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and particularly their reaction to pertinent cross-examination. Applying these funda- mental tests to the witness Thomsen, the Trial Examiner is inclined to and does credit her testimony as to her conversation with President Zitser, and finds that he made the remarks attributed to him by her testimony before the Trial Examiner at the hearing herein. After the hearing of October 9, 1958, Curcio, as a member of the "October 9th" committee, met with Richard Zitser on several occasions. The primary purpose of their conversations was twofold: (1) to type up the "14 Proposals" which Presi- dent Saul Zitser mentioned in his speech on October 9, 1958, and (2) to arrange a meeting of the employees with a representative of an insurance company to explain the insurance program that he also mentioned in his speech on October 9, 1958. The upshot of their conversations was that Richard Zitser typed up the "14 Proposals" with Curcio's assistance and approval, and arrangements were made to have a representative of The Equitable Life Assurance Society of the United States to speak to the employees on October 13, 1958. As indicated above, President Zitser agreed to meet with O^Connor, the Union's International representative, on October 13, 1958, to discuss the Union's proposed contract for 1958-59. On Friday, October 10, 1958, O'Connor called Zitser and asked him if their scheduled "conference for Monday the 13th would go on " Zitser advised him that he would have to talk to his attorney, Alexander Winnick. O'Connor called Winnick the same day and requested a conference. Winnick advised him in substance that he had not had a chance to discuss the situation with Presi- dent Zitser and that he wanted to do so before he "could give me any answer" li On Tuesday, October 14, 1958, O'Connor wrote Winnick a letter and suggested a date for a meeting. Shortly thereafter he received an acknowledgement from Winnick. On or about October 20, 1958, O'Connor, accompanied by Dominic Percopa, president of Local 149, Andrew Charczynski, chief steward of Local 149, and Anthony Vitrone, an International representative, met with Winnick at his office. At the meeting Winnick advised O'Connor "that the matter was already in the hands of the Board and there was not much of anything that could be said at that time." 12 As the Trial Examiner sees it, Winnick had reference to the RM petition, Case No. 1-RM-306, which has been referred to above. This was the last and only meeting that either O'Connor or any other official representative of the Union had with the Respondent or its duly designated representatives regarding the negotiation of a contract for 1958-59. According to O'Connor's credible testi- mony, neither Saul Zitser nor Richard Zitser ever questioned the Union's majority status from October 1956 to times material herein, that is from October 9, 1958, to the date of the hearing herein On October 22, 1958, the Union filed the original charge herein. As pointed out above Richard Zitser, sometime between October 9 and 14, 1958. arranged for a representative of The Equitable Life Assurance Society to speak to the employees in regard to an insurance program. ° On the morning of October 13, 1958, the following notice was posted on the Respondent's bulletin board by the Shop Committee. OCTOBER 13, 1958. THERE WILL BE A SHORT [MEETING]. OF THE WHOLE SHOP AT 4:30 TODAY IN THE SHIPPING ROOM. INSURANCE AND OTHER PROPOSALS WILL BE DISCUSSED. SHOP COMMITTEE, (Signed) LOUIS CURCIO, (Signed ) EDYTHE COPPOLA. We now come to the meeting of the employees with the Respondent on October 13, 1958, which in the considered opinion of the Trial Examiner is of importance for several reasons, particularly regarding the insurance program, and statements of Vice President Richard Zitser during the course of the meeting. The meeting of October 13, 1958, was held in the shipping room at 4 p m. instead of 4:30 pm. as stated in the notice. All of the employees were present including the foreman. Richard Zitser was in charge of the meeting. At the onset Frank Vercillo, one of the employees, who according to the credible testimony in the record was active on behalf of the "Shop Committee of October 9, 1958," read a typed copy of the "14 Proposals." After he finished reading them, he gave five copies thereof to Louis Curcio, who passed them out to the employees. Shortly u Quoted from O'Connor's credible testimony. 12 Quoted portion from O'Connor's credible testimony. YALE UPHOLSTERING COMPANY, INC. 453 thereafter the representative of the insurance company arrived and talked to the employees about the insurance program that he had submitted to President Saul Zitser. The agent was Richard Iverson, a representative of The Equitable Life Assurance Society of the United States. • After he had delivered his message the meeting was adjourned. - The Respondent eventually accepted the plan suggested by Iverson and the employees were so notified on or about November 3, 1958. On that date President Saul Zitser sent the following letter to each of the employees. November 3, 1958. Our Thirty-third Year Dear Fellow Workers, As evidence of my sincere desired to cooperate, and my interest in satisfying the welfare of all employees, I have taken out a group insurance policy for you and your dependents, entirely paid for by the Company. The policy became effective on October 29, 1958 and includes all the benefits previously known to all of you, including additional improvements. You will receive a printed booklet in detail explanation of the plant and its' coverages, underwritten by the Equitable Life Assurance Society of the United States. In the meanwhile, I am forwarding some mimeographed literature to keep you informed. This plant represents the start of a program whereby I am striving to live up to all promises. I look forward to a brighter future for all my employees, and continued cooperation in every form. [Emphasis supplied.] Sincerely, SAUL ZITSER, President. The record clearly shows that the Respondent at no time during the life of its contract with the Union, October 28, 1957, to October 28, 1958, discussed the above-mentioned insurance program with either the officers of Local 149 or the International representative of the Union. It is to be noted that President Zitser states in his letter to employees as to the insurance program that "This plan represents the start of a program whereby I am striving to live up to all promises." As the Trial Examiner sees it Zitser had reference to the promises he made to the employees in his speech to them on October 9, 1958, and as embodied in the oft referred to "14 Proposals," which he read to them at that meeting. As indicated above, Richard Zitser talked to the employees at the meeting on October 13, 1958, particularly as to the insurance program and the "14 Proposals." At the time he told them that his father would abide by the proposals, of which more anon. The record shows that the employees were paid by the Respondent for the time spent at the meeting on October 13, 1958. As pointed out above, the Respondent filed an RM petition with the Board on October 21, 1958. On the next day the Union filed the charge herein. Dominic Percopa, president of Local 149, testified as follows concerning a con- versation a few days before October 28, 1958, the date the contract between the Union and the Respondent was to expire, when President Zitser came to him during the lunch hour: Q. Prior to the contract expiring do you recall speaking to Mr. Saul Zitser concerning a strike? A. Well, he came one afternoon and talked to me during lunch hour. Q. When was that? A. I guess it was, must have been the Monday before the 28th, the 26th. Mr. BEINs: Let the record show the last Monday in October was October 27, 1958. Q. (By Mr. Beins.) Where did you speak to Mr. Saul Zitser? A. Upstairs. Q. Who else was there'? A. Nobody else. Just him and I. Q. Tell use what he said and what you said? A. He said: "Is there going to be a strike Wednesday?" I told him, maybe, that I didn't know about it then, but to my knowledge there wouldn't be one. He said that it could be a better shop all around if the Union was out, that 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD we'd get five days a week instead of the three days we are working now and that we'd have a half day on Saturday on stock. TRIAL EXAMINER : Who said that again? The WITNESS: Mr. Saul Zitser. TRIAL EXAMINER: And who is he again? The WITNESS: President of Yale Upholstering. TRIAL EXAMINER: All right. Q. Do you recall whether he said anything concerning what would happen if the Union stayed in? A. No. I don't recall that. Q. Your memory is exhausted on that? A. That's right. Q. Do you recall him saying if the Union stayed in you would go back to three days a week? A. I do recall that; yes. Q. Had you been working three days a week? A. Previously we had. TRIAL EXAMINER: Establish the date. Q. (By Mr. Berns. ) When were you working three days a week? A. In '58. Q. Around October, '58? A. Well, September, October, November. While Zitser did not specifically deny Percopa's testimony, he did deny that he had any conversations with any of the employees between October 9 and 29, 1958. Here again we are faced with an issue involving the credibility of the witnesses who testified at the hearing herein. As in the case of the witness Thomsen which has been discussed above we are faced with a general denial by the witness Saul Zitser that he discussed the Union and the problems involved herein with any employee between the above dates. Here again the Trial Examiner will resolve the question in the light of the record considered as a whole. To begin with the question posed by Zitser to Percopa in the disputed testimony was a perfectly logical one when con- sidered in the light of the events that had occurred prior to the conversation and the nearness of the expiration date of the contract between the parties. To the Trial Examiner at least the possibility of a strike at the Respondent's plant at a time when its business would be at its peak, that is a few weeks before Christmas, would be a great hardship for the Respondent and all concerned, including its customers who undoubtedly had placed orders for delivery of merchandise during this season. Then again it is reasonable to infer that President Zitser was well aware of the events that had transpired during the past few weeks, such as his failure to reply to the letters from the Union, the "14 Proposals" he personally had made to the employees, the formation of the Shop Committee on October 9, 1958, the distribution of typed copies of the "14 Proposals" to the employees on October 13, 1958, his refusal to meet with O'Connor, the International representative of the Union, and the filing of the RM petition with the Board on October 21, 1958. When the Trial Examiner con- siders all of these factors in the light of the whole record (553 pages, the exhibits, and the briefs of the parties) he is convinced that Percopa's testimony of his con- versation with President Zitser was a true account thereof In the circumstances the Trial Examiner credits Percopa's testimony in this regard, and finds that President Saul Zitser made the statements attributed to him by Percopa in his testimony before the Trial Examiner at the hearing herein. As indicated above, the contract between the Union and the Respondent expired on October 28, 1958. The next morning several membeis of Local 149, together with representatives of the International Union and of another local in New Haven, met in front of the Respondent's plant. Saul Zitser testified that they were there when he went into the plant around 7:30 a.m. They did not interfere with other employees who also reported for work about the same time. The employees of the Respondent who were assembled in front of the plant eventually went in and reported for work at the suggestion of O'Connor, International representative of the Union. When they entered the plant, about 8:45 a.m., the employees who had reported for work were assembled in the shipping room. According to the record, particularly the testimony of Percopa and Zuccarelli, which the Trial Examiner credits, Frank J. Vercillo told the employees as they are were checking out the night before that there would be a meeting the next morning at 8 a.m. in the shipping room. On the other hand, Curcio testified that he told the employees about the meeting as they reported YALE UPHOLSTERING COMPANY, INC. 455 for work on the morning of October 29, 1958. While it appears that there is some conflict in the testimony of the witnesses in this regard , the Trial Examiner feels that it is inconsequential , because it is quite possible that both Vercillo and Curcio informed the employees of the meeting at the time mentioned . Suffice it to say that there was a meeting of the employees in the showroom on the morning of October 29, 1958. For obvious reasons the Trial Examiner considers this meeting of the utmost importance, primarily because it was held on the day after the contract between the Union and the Respondent expired. As the Trial Examiner interprets the record , Frank Vercillo presided at the meeting on October 29, 1958. At the onset of the meeting he read the "14 Proposals" to the employees and in substance suggested that they form a committee and get a contract with the Company . Some of the employees suggested that they hire a lawyer to handle their affairs , others opposed this suggestion , particularly Al Marino, an upholsterer . He got up and said , "What's the use of having a lawyer when it is only something that would not be valid , 13 . . Have the boss take over and run the factory on his own discretion." Marino's suggestion was approved by other employees including one Stetson Bray. The upshot of the discussion was that the employees by a vote agreed with Marino to let the "boss take over." 14 After the vote was taken one of the employees went to the office and requested President Zitser to come to the meeting in the showroom. Shortly thereafter President Zitser came to the meeting and thanked the employees for having confidence in him. He suggested that they select a committee to work with' him on the "14 Proposals ." After Zitser had "said his piece," as he put it, coffee and pastry were served to the employees at Zitser's expense. He also reminded the employees that he was paying them for the time spent at the meeting. There is considerable testimony in the record as to the Respondent's custom of purchasing coffee and pastry for its employees. The Trial Examiner sees no neces- sity of devoting page after page of this report in the resolution of the credibility of the witnesses who testified at the hearing herein in this regard . Suffice it to say that upon the record considered as a whole, the Trial Examiner finds that President Zitser had on many occasions over the years purchased such refreshments for his employees, particularly on such occasions as UGF drives, and for the employees who worked overtime on Saturday afternoons . Since Local 149 did not hold its meetings on the Respondent 's premises it is understandable why its em- ployees who attended union meetings were not the beneficiaries of President Zitser's profligacy in this regard . Ordinarily the Trial Examiner would ignore the testimony in the record in this regard , but where it is an issue raised by the pleadings , he must dispose of it one way or the other . To begin with one must take cognizance of the setting in which the incident occurred . Where as here ( as will be shown below) the incident was part and parcel of the Respondent 's campaign to get rid of the Union , then the Trial Examiner has no choice but to find that the Respondent's conduct in this regard was violative of the Act, of which more anon. In passing the Trial Examiner desires to point out that he personally feels that President Zitser was the sort of person who got considerable pleasure out of "setting them up," so to speak , for others regardless of time or circumstances . This impression explains to a great extent the Trial Examiner's ultimate findings herein as to the alleged violations of Section 8(a)(2) and (1) of the Act. In other words, he feels, as indicated above, that regardless of the merits or demerits of the "one big family" idea , it obviously permeated the thinking of the Zitsers in their relationship with their employees , regardless of the plain language of the Act and its interpreta- tion by the Board and the courts. After the refreshments were had , Zitser announced to the employees that the new insurance program which the Respondent was inaugurating would cost $85 more than the insurance under the union contract , but that it was a better policy. By this statement it becomes obvious that the Respondent had entered into a contract with the Equitable Life Assurance Society of the United States for insurance for its employees while its contract with the Union was still in full force and effect. There is no evidence in this record that the Respondent ever advised or consulted with the Union of its intentions in this regard at any time during the life of the 1957-58 contract. Shortly after Zitser finished his talk to the employees, a committee was selected by the employees , including the foremen , who were not only present at the meeting but participated in the election of the committeemen Percopa's credible testimony v That is, the suggested contract 14 Quotes from Curcio's credible testimony 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as to what transpired at the meeting of October 29, 1959, particularly as to the election of committeemen, follows below: Q. Did you say a committee was elected? A. Nominations from the floor. Names were made from the floor of the people they wanted from the different departments. Q. Was a committee elected? A. It was. Q. Can you tell us who was elected? A. First they nominated Andrew Charczynski and he declined. Q. Nominated him, who nominated him? A. Charles Bopko. He nominated Charczynski for one of the people in the upholstery department and at this point Mr. Saul Zitser came up and he said, "Andy I wish you would be on it. You could help me out " Andy said that he would have no part of it. Frank Vercillo and Al. Marino and Charley Bopko, these three persons for the upholstery department and nominated for the out- side department nominated Louis Pagliaro, William Warren and Elliott, John Elliott, and for the cutters they nominated Carl DiNello, for the operators Edith Coppola and Julia Stankiewicz. Q. And how about the finishers? A. Alex Kaliszewski. Q. How about-repeat who was nominated for the outsiders? A. For the outside department there was three of them, Louis Pagliaro, William Warner and John Elliott. Q. And were these people put on a committee? A. They were put on the committee. Q. Was anything said at that meeting about when the committee would meet from then on? A. Suppose to meet every first Monday of the month. Q. Who said that? A. Frank Vercillo. Q. What did he say? A. What did who say? Q. Frank Vercillo. A. He said the committees will meet every first Monday of the month. Among the committeemen chosen at the meeting on October 29, 1958, were Carl DiNello, foreman of the cutting department, and Alex Kaliszewski, foreman of the finishing department, of whom more anon. With the selection of the above committee on October 29, 1958, the committee which was selected at the meeting on October 9, 1959, passed out of existence. Shortly after the election of the committeemen the meeting of October 29, 1958, was adjourned. As indicated above, the next meeting of the "committtee" and/or employees was held on November 3, 1958. The primary purpose of this meeting was to discuss the new insurance program which the Respondent had put in effect.15 The meeting was held in the plant at 4:15 p.m. The employees were paid for the time spent at the meeting. The December meeting was held in the shipping room from 12:15 to 1 p.m. The purpose of this meeting was to discuss the Christmas party and the United Givers Fund campaign. Vice President Lavietes, assisted by an employee named lannotti, passed out pastry to those present. According to Richard Zitser, vice president of the Respondent, a Christmas bonus of 1 week's pay for employees who had been with the Company 1 year was given in 1958. According to the record the Union was not consulted in this regard either before or after its contract with the Respondent expired on October 28, 1958 Shop committee meetings were held thereafter once a month up to and including March 1959, insofar as the record herein is concerned. Of particular importance is the meeting on the second Monday in January 1959. At this meeting the Respondent through both of the Zitsers announced that the em- ployees would receive increases ranging from 10 cents to 35 per hour.16 The em- ployees were also told that the Respondent would install a coffee urn and a refrigera- tor on the second floor. Coffee and pastry were again served to the employees by 15 See supra. 16 See supra. YALE UPHOLSTERING COMPANY, INC. 457 the Respondent. In addition the employees were paid for the time spent at the meeting. Here again, there is no evidence in the record that the Union was con- sulted as regards the wage increases granted the employees at this meeting. The Trial Examiner has indicated above that one of the most important issues herein is the status of the "supervisory" employees. The record shows and the Trial Examiner has found above that the "shop com- mittee" selected at the October 9 , 1958, meeting consisting of five employees in- cluded Alex Kaliszewski. He has also found that the "shop committee" of October 9, 1958, was disbanded at the meeting of the employees on October 29, 1958, at which time a new and/or permanent committee was selected . Included in this committee we again find Alex Kaliszewski as a committeeman . In addition to him, Carl DiNello was also selected as a committeeman. The General Counsel in his original complaint and as amended at the hearing herein alleges the following: 9. Respondent's foremen Alex Kaliszewski, Louis Fusco, Ephriam Sarkins, and Carl DiNello are supervisors within the meaning of Section 2(11) of the Act.17 The Respondent in its answer denies that the above -named employees are super- visors within the meaning of the Act. The record clearly shows without contradiction that the 1956-57 and the 1957-58 contracts between the Respondent and the Union provided that "foremen, plant clerical employees , professional employees, guards and supervisors and any officers of the Company" be specifically excluded from the agreed -upon appropriate unit "for the purposes of collective bargaining." As indicated herein above the Respondent in its original answer admitted that the bargaining unit as alleged in the original complaint was appropriate for the purposes of collective bargaining . However, at the hearing herein after testimony had been adduced by the General Counsel in support of his position in this regard , and he had substantially amended his complaint , the Respondent reversed its position and denied that the unit as alleged in the original and amended complaints 18 was appropriate "for the purposes of collective bargaining within the meaning of Section 9(b) of the Act." The record also shows that Kaliszewski , Fusco, Sarkins, and DiNello were neither members of the Union nor subjected to the requirements set forth in contracts be- tween the Union and the Respondents as to maintenance of membership and dues checkoff. Moreover, they were referred to in the testimony of both President Zitser and Curcio, an employee of the Respondent, "inadvertently" as "supervisors." Again, as has been pointed out above , the Respondent insisted that foremen be ex- cluded from the bargaining unit in the 1956-57 and 1957-58 contracts on the premise that they were a part of management . The duties of Kaliszewski, Fusco , Sarkins, and DiNello will be discussed below. The record shows that the Respondent at ,times material herein had about 60 em- ployees. According to the credible testimony of Andrew Charczynski, an uphol- sterer, there are six departments in the plant with a foreman in charge of each, to wit: Ephriam Sarkins, upholstering department ; Alexander Kaliszewski , springing department ; Louis Fusco, outside department; 19 Lawrence lannotti,20 shipping de- partment; Carl DiNello, in cutting ; and an employee referred to in the record as "Don" in the finishing department. The record shows that lannotti is the only em- ployee in the shipping department. The person referred to as "Don" is, in the Trial Examiner's considered opinion , Donald Simons , and he so finds. This finding is predicated on General Counsel's Exhibit No. 13. An examination of this exhibit shows that it is the payroll for the weeks of October 9, 13, and 29, 1958. Further examination reveals that the only employee of the Company thereon whose first name is Donald is Donald Simons. Further examination reveals that the only em- ployees whose last name begins with a D are Peter Di Leva and Carl DiNello. In the circumstances discussed and described above, the Trial Examiner has made the above finding as to the person referred to in the record as "Don." 17 Paragraph 8 in the original complaint. Is Paragraph 10 in the original complaint and paragraph 12 in the amended complaint. 19 Outside department is where the "outside" of the furniture is worked on. It does not refer to or have reference to work done outside the plant. 20 Referred to, at times , in the record as "Larry." 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Further examination of the documentary evidence reveals the following regarding the employees named above as foreman of their respective departments. GENERAL COUNSEL'S EXHIBIT No. 13.Payroll for October 9, 13, and 29, 1958 Hourly Total Hourly Total Hourly Total DiNello, Carl_______________________ $2 60 $30 55 $2 60 $30 55 $2 60 $31 .53 Fusco, Louis__ __________ 2 60 20 80 2 60 20 15 2 60 20 80 lannotti, Lawrence I Kaliszewski, Alexander_____________ 2 60 20 80 2 60 20 80 2 60 20 80 Sarkins, Ephi iam___________________ 2 85 22 80 2 55 22 80 2 85 22 80 Simons, Donald____________________ 2 85 22 80 2 85 22 80 2 85 22 80 I Salary $110 00 per week. Let us now look at General Counsel 's Exhibit No. 14, which is the record of "PAY RAISES SINCE OCTOBER 29, 1958 (HOURLY)," applicable to the em- ployees named above. PAY RAISES SINCE OCTOBER 29, 1958 (HOURLY) DiNello, Carl----------------------------------------------- [Blank] Fusco, Louis--------------------------------------- $0 15 3/13/59 lannotti, Lawrence------------------------------------------- [Blank] Kaliszewski Alexander------------------------------- $0.40 1/ 5/59 Sarkins, iEphriam____________________________________________ [Blank] Simons, Donald------------------------------------- $0.15 1/ 5/59 The foregoing excerpts from General Counsel's Exhibits Nos 13 and 14 indicate that Fusco, Kaliszewski, Sarkins, and Simons were hourly paid employees, and that only lannotti was paid on a weekly salary basis. On the other hand, Richard Zitser testified as follows as regards hourly pay raises granted to the employees after October 29, 1958: Q. Regarding those pay raises, General Counsel has subpoenaed said pay raises, and I believe that Wednesday you informed me that the people who didn't get any raises were on salary, is that correct9 A. Yes sir, there was only one or two. I think that's all From the foregoing it is obvious that some of the employees referred to as fore- man by the General Counsel in his complaint, at the hearing herein, and in his brief are paid on an hourly basis. However, this is not a controlling factor in determining whether an employee is a supervisor within the meaning of the Act The test is what their duties are, and how they are referred to and considered by the employer and their fellow workers. Here the record clearly shows that all of the above are considered by their fellow workers as "foremen," and by the Respond- ent by its position in this regard during the effective years of its contract with the Union, 1956-57, and 1957-58, of which more below. As indicated above, Morton Lavietes, vice president of the Respondent, is in charge of production in the plant. The record shows that he is assisted in his work by Ephriam Sarkins, who is referred to by the employees as a foreman The record further shows that he assigns and distributes the work in his department. In addition he inspects the work, and in some instances corrects minor mistakes himself, otherwise he orders the upholsterers to do so. When the upholsterers in the department want time off they secure permission either from him or from Morton Lavietes The record further shows that DiNello, Fusco, and Kaliszewski distribute, inspect, and correct the work in their respective departments. In addition they instruct the employees in their respective departments as to the work. The Respondent in its case-in-chief did not choose to call any of the above as witnesses in its behalf.21 Hence it is obvious that the Trial Examiner is faced with a difficult task in resolving this question. There is, however, testimony in the record by the General Counsel's witness, Andrew Charczynski, that Saul Zitser told the employees at a meeting on the second floor of the plant, sometime in the summer of 1958, that "the only ¢i Only Saul and Richard Zitser testified on behalf of the Respondent Company at the hearing herein. YALE UPHOLSTERING COMPANY, INC. 459 people who have right to hire and fire was his son, his son-in-law, himself, and Carl DiNello." Charczynski impressed the Trial Examiner as an honest and forth- right witness, moreover his testimony in this regard stands uncontradicted and undenied in the record. In the circumstances the Trial Examiner credits his testi- mony in this regard and finds that President Saul Zitser made the statement attributed to him by the witness Charczynski. Concluding Findings as to the Status of Sarkins, DiNello, Fusco, and Kaliszewski After long and thoughtful consideration the Trial Examiner is convinced and finds that the foregoing are supervisory employees within the meaning of the Act. He predicates his fiinding in this regard not only on their duties as described in con- siderable detail above but on certain admitted facts in the record as to the Respond- ent's position as to their status prior to the hearing herein. A summation of these compelling factors follows. To begin with, (1) the Respondent insisted that they be excluded from the appro- priate unit during the contract years of 1956-57 and 1957-58 on the grounds that these employees "were part of management"; (2) in the petition it filed with the Board on October 21, 1958, on behalf of the "Shop Committee of October 9, 1958," Case No. 1-RM-306, it still insisted that "Foremen, office workers" be excluded from the appropriate unit; (3) in its original answer to the complaint it admitted that the unit as alleged in the complaint was appropriate; (4) in its answer to the complaint as amended at the hearing herein it reversed its position and denied that the unit alleged therein was appropriate; and (5) the record shows that they were referred to as "foremen" and/or "supervisors" by the employees themselves 22 The Board has had similar situations before it in the past, in fact a case involving a similar factual situation, that is as to the number of employees, the product of the company, and the layout and floor space of the plant. The Trial Examiner has reference to Hickory Chair Company, 116 NLRB 1105, 1108. In that case the employees whose status was in dispute were found to be supervisory employees within the meaning of the Act. So is it here. Concluding Finding From all of the foregoing the Trial Examiner is convinced and finds that the Respondent at times material herein did initiate, sponsor, and render material assistance to the shop committees. It must be borne in mind that the first shop com- mittee came into existence under the following circumstances. Sometime early in the afternoon of October 9, 1958, Morton Lavietes, vice president in charge of production and President Zitser's son-in-law, went among the employees and re- quested that they attend a meeting in the shipping room. The meeting was attended by all of the top officials of the Company, except Saul Zitser's wife. Included among the employees were all of the supervisory employees. What transpired at the meet- ing has been thoroughly discussed above and the Trial Examiner sees no need to reiterate his findings in this regard in this section of the report. Suffice it to say that the more he ponders the facts herein the more he is convinced that the primary motive behind the Respondent's conduct that led to the issuance of the complaint herein by the General Counsel was Zitser's obsession with the "one big family" idea of relations between an employer and his employees. For example, let us consider in the light of the whole record the following excerpt from the testimony of Vice President Richard Zitser. Q. You never had labor law in school? A. I did, the only thing I know is that it was a pretty technical field. Q. Well, why did you want to go to the Union meetings of Local 149 Did you want an education? A. It was personal, I felt that it was my shop, I know these men personally I just wanted to be there. Q. Do you think management should be in the Union? A. Did I think management-truthfully, yes, sir. Q I hope you are truthful. And you sent, or gave, 6-B, the petition, to Mr. Winnick's office? A. Yes, sir, I carried it out myself. Q Did you receive a bill for that? A. A bill? Q. Yes, were you charged for the work they did for filling out the petition,? 22 See supra. 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mr. WINNICK. For Winnick & Winnick? The WITNESS. Yes, sir. I mean-to tell you the truth, there are other bills that come from Mr. Winnick's office. Q. To your knowledge, Mr. Curico and the shop committee weren't charged for it? A. No, sir, to my knowledge they weren't charged for it. Other incidents of this nature have been discussed and disposed of above. There is no substantial evidence in the record that either the idea of the meeting of October 9, 1958, or the formation of the first "shop committee" stemmed from the employees themselves. Moreover, there is no substantial evidence in the record that the employees themselves were dissatisfied with the Union as their bargaining representative. It was not until after President Zitser made his speech to the employees that the slightest, evidence of discontent became apparent. It must be remembered that he had the Union's proposed contract in his hand at the time he made his speech and his remarks to the effect that he would not sign a contract with the Union unquestionably impressed them. Hence the time was ripe for the sugges- tion that they deal with President Zitser through their own committees, which is exactly what happened. It is significant that supervisory employees not only were present at the meeting on October 9, 1958, and participated in the election of the "shop committee" but at least one of them, Alex Kaliszewski, was elected a committeeman. The "shop committee" of October 9, 1958,23 met with the Respondent's representa- tives on several occasions until it was superseded by a new and/or permanent committee on October 29, 1958, of which more anon. The activities of the "October 9th" committee have likewise been thoroughly discussed above, and the Trial Ex- aminer sees no necessity of reiterating his findings in this section of the report. Suffice it to say that in his considered opinion the highlights of the committee's activities were as follows: (1) The drafting of the petition in Case No. 1-RM-306; (2) the close association between Vice President Richard Zitser and the committee; (3) the financial support by way of attorney fees and stenographic help it received from the Respondent; (4) the meeting of October 13, 1958, on company time and property; (5) the launching of the new insurance program through the personal efforts of Richard and Saul Zitser; (6) meetings with management without informing the Union, which was still the bargaining representative of the employees in the appropriate unit, and (7) the calling of the meeting of October 29, 1958, the day after the contract between the Union and the Respondent expired. Since the forma- tion and activities of the "October 9th" committee are so closely interwined with the "October 29th, 1958" committee the Trial Examiner will set forth his conclusions in this regard below. As indicated and found above the "October 9th" committee was superseded by a new and/or permanent committee on October 29, 1958. Since the circumstances under which it came into existence have likewise been discussed and disposed of above, the Trial Examiner will not go into detail in this regard in this section of the report. The most significant incidents that occurred at this meeting were as follows: (1) The selection of a new "shop committee," which included two supervisory employees, Carl DiNello and Alex Kaliszewski; (2) the meeting was held on company time and property and the employees were paid for the time they were absent from their work; (3) the first Monday of the month was selected as the date future meetings of the committee would be held; (4) the committee was selected at the personal request of President Saul Zitser, "to help him out on these proposals"; 24 (5) President Zitser thanked the employees for having "faith" in him; and (6) the serving of coffee and pastry to the employees by President Zitser.25 Thereafter the Shop Committee met at regular intervals during November and December 1958, and January and February 1959. The record clearly shows that representatives of the Respondent met regularly with the committee at its meetings, and discussions were had regarding wages, hours, and working conditions. While it is true that neither of the shop committees has a constitution, bylaws, minutes of their proceedings, and no dues or initiation fees, nevertheless they were created by the Respondent to represent its employees as to wages, hours, and other conditions of employment. In the circumstances the Trial Examiner finds that both of the committees are labor organizations within the meaning of the Act. 29 Sometimes referred to as the "October 9th" committee. 24 Refers to the "14 Proposals." 25 See supra for the Trial Examiner's comment in this regard. YALE UPHOLSTERING COMPANY, INC. 461 The facts herein are not only analogous to the facts found by the Board in The Multi-Color Company 26 case but in many respects on "all fours" with it. As indi- cated above, the facts herein clearly show that both of the above-described committees were creatures of the Respondent. In such a state of the record the Trial Examiner sees no necessity for citing Board and court decisions ad infinitum to support his ultimate findings in this regard. Suffice it to say the cases cited in the Multi-Color case are in his considered opinion adequate to substantiate his findings.27 In view of all of the foregoing, the Trial Examiner concludes and finds that by its conduct with respect to the "shop committee" of October 9, 1958, and the "shop committee" of October 29, 1958, the Respondent, beginning on or about October 9, 1958, has assisted, dominated, and interfered with the formation and administration of said committees, and his contributed support thereto, thereby violating Section 8(a)(2) and (1) of the Act. Concluding Findings as to Section 8(a)(5) of the Act The record shows and the Trial Examiner has found above that the Union and the Respondent had contractual relations during the years 1956-57 and 1957-58. It was during the effective date of the latter that the Respondent initiated, sponsored, and rendered assistance to the "shop committee" of October 9, 1958. There is no substantial evidence in the record that any serious difficulties arose between the parties during the contractual years, except the events that arose on and after October 9, 1958. Moreover, there is no evidence that the employees themselves were dissatisfied with the Union or its handling of their affairs during this same period. The Union by its International Representative O'Connor wrote the Respondent on August 12 and October 6, 1958, and requested meetings for the purpose of negotiating a new contract for the years 1958-59. In his letter of October 6, 1958, O'Connor suggested that the parties meet on October 9, 1958. Shortly thereafter one of the Zitsers advised Percopa, president of the Local, that the Respondent could not meet with O'Connor on October 9, 1958. A meeting, however, was later arranged between O'Connor and the Respondent's attorney, Alexander Winnick, for October 20, 1958. What transpired between October 9 and 29, 1958, has been thoroughly described and disposed of above as to other issues herein, consequently the Trial Examiner sees no necessity of reiterating the facts in this section of the report. Suffice it to say that while Saul Zitser found it impossible to meet with the Union's representative on October 9, 1958, he did nevertheless find time to meet with the employees in the plant on that date, and in effect tell them that he never would sign a contract with the Union, and initiate, sponsor, and assist the formation of the "shop committee" of October 9, 1958. As pointed out above, the 1957-58 contract contained a dues checkoff authorization clause. There is no evidence in the record that any of the Respondent's employees ever attempted to either withdraw from the Union or rescind his dues checkoff authorization. If there was any loss of union membership either before the expiration date of the 1957-58 contract, on October 28, 1958, or thereafter, it was due to the Respond- ent's unfair labor practices, and the Trial Examiner so finds. As indicated above, the Union made one more attempt to bargain with the Respondent after the October 9, 1958, fiasco. O'Connor was advised by President Zitser to meet with Attorney Winnick on October 9, 1958. He, along with other union officials, met with Winnick on that date. Nothing whatever was accomplished for the simple reason that Attorney Winnick had already filed the RM petition with the Board, and as he put it everything was in the hands of the Board. The Union made no further attempt to negotiate with the Respondent. To the Trial Examiner it would have been a useless gesture to have done so. Moreover, in the circum- stances discussed, described, and found above, it was legally under no obligation to reassert its position as the chosen bargaining representative of the Respondent's employees in the appropriate unit, for the simple reason that it is axiomatic that "Equity will not require the doing of a vain or useless thing." The situation herein is somewhat akin to the facts in the Medo Photo Supply Corporation, 321 U.S. 678 (1944) where the Court said: Petitioner cannot, as justification for its refusal to bargain with the union, set up the defection of union members which it had induced by unfair labor prac- tices, even though the result was that the union no longer had the support of a majority. 20 The Multi-Color Company, 114 NLRB 1129, set aside 250 F. 2d 573 (CA. 6), 1957. The reason given by the circuit court for setting aside the Board's Order was "on sub- stantial evidence of the record considered as a whole." a' See also The Multi-Color Company, 122 NLRB 429, and cases cited therein. 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Having found that the Respondent created the "shop committees," it is obvious that the Supreme Court's ruling in the Medo case ,is applicable to the situation herein. The record clearly shows, and the Trial Examiner has found above, that the Respondent acted unilaterally on several bargainable issues after the expiration of the 1957-58 contract on October 28, 1958. For example it initiated, sponsored, and signed a new insurance contract for its employees in November 1958, paid Christmas bonuses, and granted substantial wage increases to its employees in the early part of January 1959. The Respondent at no time discussed any of these matters with the Union. It is well settled that in the circumstances discussed, described, and found above, the Union was still presumably the chosen bargaining representative of the Respondent's employees in the appropriate unit. Nor was this presumption rebutted by the filing of the RM petition in the circumstances set forth above 28 In view of all of the foregoing, the Trial Examiner finds that Respondent's refusal to meet with the Union for collective-bargaining purposes on October 9, 1958, and thereafter was violative of Section 8(a)(5) and (1) of the Act. In addition to the foregoing the Trial Examiner has also found that President Saul Zitser conversed with employees Helen Thomsen and Dominic Percopa at times material herein regarding the Union. When Zitser's statements are considered in the light of the whole record and in particular the host of testimony in regard to the establishment of the "shop committees," the Trial Examiner is convinced and finds that his statements to the above-named employees were clearly violative of Section 8(a)(1) of the Act. As a matter of fact the Trial Examiner has previously so considered them as part and parcel of the Respondent's overall plan to get rid of the Union and set up its own "shop committees" to deal with it on ques- tions of wages, hours, and other conditions of employment. In other words the Trial Examiner has previously found that as part of the overall picture these conversations were ipso facto violative of Section 8(a)(1) of the Act. In passing the Trial Examiner desires to point out that there were but three controversial issues in the Union's proposed contract for 1958-59, to wit, (1) "substantial" wage increases ; (2) 6-month leaves of absence for employees for personal reasons; and (3) vacation pay for employees in the armed services. All of these issues were bargainable and might well have been disposed of through the honest and sincere efforts of representatives of the parties in the mode and manner anticipated by the framers of the Act, and not by the methods resorted to by the Respondent. 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 the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic , and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It has been found that the Respondent has assisted, dominated, and interfered with the formation and administration of the "shop committees" and has contributed support to said labor organizations. It will therefore be recommended that the Respondent cease and desist from all interference with, assistance to, domination of, or support to, the "shop committees," and further that Respondent disestablish said committees as the representative of its employees for the purpose of dealing with it concerning grievances, labor disputes, wages, hours of employment, or other conditions of employment, and that the Respondent refrain from recognizing the "shop committees," or any successor thereto, for any of the foregoing purposes. Having also found that Respondent refused to bargain with the Union at all times on and after October 9, 1958, in violation of Section 8(a)(5) and (1) of the Act, the Trial Examiner will recommend that Respondent be ordered to bargain with the Union, upon request, as the exclusive representative of its employees in the appropriate unit concerning rates of pay, wages, hours, and other terms and conditions of employment , and if an understanding is reached , embody such under- standing in a signed agreement. On the basis of the above findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: 28 See Shamrock Dairy, Inc, at at., 119 NLRB 998, and cases cited therein. In the Trial Examiner's considered opinion Board Member Bean 's dissent is not applicable to the facts herein. MICHIGAN WINERIES, INC. 463 CONCLUSIONS OF LAW 1. Yale Upholstering Company, Inc., the Respondent herein, is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Local 149, United Furniture Workers of America, AFL-CIO, and the "shop committees" of October 9 and 29, 1958, are labor organizations within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees employed at Respondent's New Haven plant, exclusive of professional employees, clerical employees, guards, foremen, and all supervisors as defined in Section 2(11) of the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Local 149, United Furniture Workers of America, AFL-CIO, has been at all times since October 1956, and is, the exclusive representative of all the employees in the aforestated appropriate unit for purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 5. By assisting, dominating , and interfering with the formation and administration of the "shop committees" and by contributing support to them, the Respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8(a)(2) of the Act. 6. Local 149, United Furniture Workers of America, AFL-CIO, on October 9, 1958, was, and at all times thereafter has been, the exclusive representative of all employees in the above-described appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 7. By refusing to bargain collectively with said labor organization as the exclusive representative of its employees in an appropriate unit in the mode and manner described above, the Respondent has engaged in unfair labor practices within the meaning of Section 8 ( a) (5) of the Act. 8. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, by refusing to bargain collectively with said labor organization on questions of wages, hours, and other conditions of employment, by initiating, sponsoring, and contributing to the support of the "shop committees" of October 9 and 29, 1958 , and by soliciting employees to with- draw from the Union , the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 9. The- aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Michigan Wineries, Inc. and Joseph Castiglia and Herman De- Shane. Case No. 7-CA-29266. April 28, 1960 DECISION AND ORDER On December 22, 1959, Trial Examiner John C. Fischer issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged 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 Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Bean and Fanning]. 127 NLRB No. 63. ..