Greenfield Components Corp.

GREENFIELD COMPONENTS CORPORATION 479 Greenfield Components Corporation and United Electrical, Radio and Machine Workers of America. Case No. 1-CA-3418. Janu- ary 24, 1963 DECISION AND ORDER On September 19, 1961, Trial Examiner Thomas S. Wilson 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 Intermediate Report attached hereto. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. 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 [Members Rodgers, Fanning, and Brown] . The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in this proceeding, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following additions. We agree with the Trial Examiner's findings that the Respondent committed independent violations of Section 8(a) (1), and violated Section 8(a) (3) and (5) of the Act. In adopting the finding that Respondent violated Section 8 (a) (5) by refusing to recognize and bargain with the Union, we specifically find that Respondent's refusal to recognize the Union was motivated by bad faith, as evidenced by its violations of Section 8 (a) (1) and the discharge of two union ad- herents in violation of Section 8(a) (3), immediately prior to its refusal to bargain. Although in the section of the Intermediat, Report entitled "The Remedy," the Trial Examiner recommended reinstatement of Norma DeRosia and Barbara Hall, the recommended order does not contain a provision for their reinstatement. We shall include the usual pro- vision requiring reinstatement of DeRosia and Hall in the Order. 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, Greenfield Com- 135 NLRB No. 47. 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ponents Corporation, Greenfield, Massachusetts, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership or activities in United Electrical, Radio and Machine Workers of America, or in any other labor organization, by discriminatorily discharging or discriminating in any other manner in regard to the hire and tenure of employment or any term or condition of employment of its employees. (b) Refusing to recognize and bargain collectively with respect to rates of pay, wages, hours of employment, or other terms and condi- tions of employment with the above-named Union, as the exclusive representative of all Respondent's employees in the following appro- priate unit: All production and maintenance employees of Respondent employed at its Greenfield plant, exclusive of office clerical employees, guards, professional employees, and all supervisors as defined in the Act. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of the right to self-organization, to form labor organizations, to join or assist United Electrical, Radio and Machine Workers of America, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collec- tive bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a) (3) of the Act, as amended. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Norma DeRosia and Barbara Hall immediate and full reinstatement to their former or substantially equivalent posi- tions, without prejudice to their seniority or other rights and privi- leges previously enjoyed, and make them whole for any loss of earn- ings each of them may have suffered as a result of the discrimination against her of February 16, 1961, in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (b) Upon request, bargain collectively with United Electrical, Radio and Machine Workers of America as the exclusive representa- tive of the employees in the above-described appropriate unit with respect to rates of pay, wages, hours of work, and other terms and conditions of employment and embody in a signed agreement any understanding reached. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social secur- ity payment, records, timecards, personnel records and reports, and GREENFIELD COMPONENTS CORPORATION 481 all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its plant in Greenfield, Massachusetts, copies of the notice attached hereto marked "Appendix." Copies of said notice, to be furnished by the Regional Director for the First Region, shall, upon being duly signed by the Respondent's representative, be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other, material. (e) Notify the Regional Director for the First Region, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. 1In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT discourage membership or activities in United Electrical, Radio and Machine Workers of America, or in any other labor organization, by discriminatorily discharging or re- fusing to reinstate any of our employees or by discriminating in any other manner in regard to their hire and tenure of employ- ment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in any other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as amended. WE WILL offer to Norma DeRosia and Barbara Hall immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole for any loss 634449-62-vol. 135 32 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of pay each of them may have suffered by reason of the discrimi- nation practiced against her. WE WILL, upon request, bargain collectively with United Elec- trical, Radio and Machine Workers of America, as the exclusive representative of all employees in the appropriate bargaining unit described below with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and embody in a signed agreement any understanding reached. The appropriate bargaining unit is : All production and maintenance employees of Respondent at its Greenfield plant, excluding office clerical employees, professional employees, guards, and super- visors as defined in the Act. All our employees are free to become, remain, or to refrain from be- coining or remaining members in the above-named Union, or in any other labor organization. GREENFIELD COMPONENTS CORPORATION, Employer. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office (24 School Street, Boston S, Massachusetts; Telephone Number, Lafayette 3-8100) if they have any question concerning this notice or compliance with its provisions. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon charges and amended charges duly filed on February 24 and March 24, 1961, by United Electrical, Radio and Machine `Workers of America, hereinafter called the Union, the General Counsel of the National Labor Relations Board, hereinafter called the General Counsel 1 and the Board, respectively, by the Regional Director for the First Region (Boston, Massachusetts), issued its complaint dated April 10, 1961, and amended complaint dated May 9, 1961, against Greenfield Com- ponents Corporation, herein called the Respondent. The amended complaint alleged that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1), (3), and (5) and Section 2(6) and (7) of the Labor Management Relations Act, of 1947, as amended, herein called the Act. Copies of the charges, amended charges, complaint, amended com- plaint, and notice of hearing thereon were duly served upon the Union and Respondent. Respondent duly filed its answer admitting certain allegations of the complaint but denying the commission of any unfair labor practices. Pursuant to notice, a hearing thereon was held at Greenfield, Massachusetts, from May 23 through 25, 1961, before the duly designated Trial Examiner. General Counsel and Respondent appeared at the hearing, were represented by counsel, and were afforded full opportunity to be heard, to produce, examine, and cross-examine witnesses, to introduce evidence material and pertinent to the issues, and were ad- i This term specifically includes the attorneys appearing for the General Counsel at the hearing. GREENFIELD COMPONENTS CORPORATION 483 vised of their right to argue orally upon the record and to file briefs and proposed findings and conclusions or both. Oral argument was waived. Briefs were received from Respondent and General Counsel on July 17, 1961. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. BUSINESS OF RESPONDENT Greenfield Components Corporation is and has been at all times material herein a corporation duly organized under and existing by virtue of the laws of the State of Massachusetts. At all times herein mentioned, Respondent has maintained its principal office and place of business at 184 Shelburne Street in the city of Greenfield, county of Franklin, and State of Massachusetts, hereinafter called the Greenfield plant, and is now and continuously has been engaged at said plant in the manufac- ture, sale, and distribution of electronic components and related products. Respond- ent in the course and conduct of its business causes, and continuously has caused at all times herein mentioned, large quantities of materials used' by it in the manu- facture of electronic components to be purchased and transported in interstate com- merce from and through various States of the United States other than the State of Massachusetts, and causes, and continuously has caused at all times herein men- tioned, substantial quantities of electronic components to be sold and transported from said plant in interstate commerce to States of the United States other than the State of Massachusetts. Respondent receives in its Greenfield plant from points outside Massachusetts materials having an annual value exceeding $50,000. Re- spondent ships from its Greenfield plant directly to points outside Massachusetts products having an annual value exceeding $50,000. The complaint alleges, the answer admits, and the Trial Examiner finds that Re- spondent is engaged in commerce within the meaning of the Act. II. THE UNION INVOLVED United Electrical, Radio and Machine Workers of America is a labor organiza- tion admitting to membership employees of the Respondent. HI. THE UNFAIR LABOR PRACTICES A. The facts 1. Interference, restraint, and coercion Respondent began operations in Greenfield, Massachusetts, in February 1959. One of the first girls hired was Norma DeRosia who was employed by Respondent on July 22, 1959, worked continuously thereafter, and at the time of her discharge on February 16, 1961, was No. 1 on Respondent's seniority list. Barbara Hall, the' other employee whose discharge is involved here, was hired by Respondent on February 29, 1960. Respondent's vice president, Richard Sauter, hired Norma DeRosia. During the prehire interview DeRosia inquired whether Respondent was "a piece shop or a union shop." Sauter answered that before he would let the Union in the shop, he would close Respondent's doors. 2 Sometime in the year 1960, estimated by Respondent's president, Francis J. Sweeney, as being in March or "sometime in there," Sweeney was told by some un- named businessman in Greenfield that Union Field Organizer Hugh Harley, Jr., 2In his testimony Sauter recalled that during this interview DeRosia had stated that she was "very glad to hear that there was no union as she wanted no union" affiliation" but denied having made any remark about closing the doors. It is obvious from Sauter's own quotation of DeRosia's remark that Sauter had previously remarked that Respondent had no union in the plant. However, Sauter also maintained in his testimony that despite the admitted knowledge of various supervisors and the 1960 conversation even President Sweeney recalled with the Greenfield businessman about the questions Organizer Harley was asking, he had no knowledge of any union activities in the plant until Sweeney told him on February 17, 1961, of Harley's telephone call about the discharges of DeRosia and Hall. Sauter was not a convincing witness either in his demeanor on the witness stand or in the substance of his testimony. 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "was asking quite a few questions about " Respondent which gave Sweeney the idea that an attempt might be made to organize Respondent's employees .3 Actually Harley began a campaign to organize Respondent's employees approxi- mately in May 1960, which continued into July when it slowed down and was virtual- ly abandoned following the granting of a 10-cent general wage increase to all its employees by Respondent on July 1. The campaign to organize Respondent's employees was reactivated in October ,and November 1960, and continued thereafter until the date of the hearing herein. By February 20, 1961, the critical date herein, 42 of the approximately 80 employees then working for Respondent had executed cards authorizing the Union to represent them in collective bargaining.4 Throughout this whole period, Norma DeRosia, Barbara Hall, and Luvycie Weld were the most active employees in soliciting their fellow employees to sign such authorization cards and to attend the four or five union meetings held for Respon- dent's employees during the period at the union hall in Greenfield. - Throughout its history Respondent had on occasion granted a few 5- or 10-cent merit wage increases to individual employees. On July 1, 1960, Respondent granted its employees a 10-cent-per-hour wage increase across the board. Following the July 1, 1960, 10-,cent general wage increase, individual merit increases ceased until October 1960, when one merit increase was granted. Thereafter individual merit wage increases were granted by Respondent as follows: 1 in November and 6 in Decem- ber 1960, 3 in January, 22 such merit increases in February, plus 3 automatic 30- day wage increases, and 6 to March 5, 1961. By May 1961, some 59 such merit increases had been granted by Respondent. As of February 1961, Respondent had approximately 80 production and maintenance employees. So that by May 1961, Respondent had to all intents and purposes granted a second general wage increase. Sometime in the latter part of January 1961, Foreman John B. Lahey, admittedly a supervisor, had a conversation about the Union with employee Marcia Allen at her workplace in which Lahey admitted, as a witness, that he told Allen that he, Lahey, had heard that Allen and employee Katherine Carey were "carrying on" for the Union and that he knew that Allen had signed an authorization card for the Union. Allen testified in addition that in this same conversation Lahey had also stated that he, Lahey, knew which girls on his floor were for and against the Union, that "if it became known to the Company that [Allen] was for the Union, it would make [Allen's] job harder" and further quoted Vice President Sauter as having said that if the Union got in he would move the plant.5 A day or so later Lahey returned to Allen's workplace and told her that he hoped she was not for the Union because he had done so much for her, specifically men- tioning the 5-cent merit increase which she was to receive the following week and for which she had been asking for some time . Allen received this merit increase the following week while Katherine Carey received a similar merit increase the week after that. As a witness Lahey volunteered the information that a week or so later he had had another conversation about the Union with a group of employees of whom Allen was one in which he told the group that he, Lahey, "was against the Union because [he] didn't think it was good for the shop at that time and because the shop was only a young organization and that perhaps in future years it would be a good thing." When someone in the group asked Lahey about the shop closing, Lahey testified that he told them "that they would not close, as far as I knew, unless it was eco- nomically impossible to continue." The testimony of Lahey makes it clear that he, as a supervisor, knew of the union organizational campaign. ' Just prior to this answer Sweeney had testified that he first discovered any union activity in Respondent's plant when this same Harley had telephoned him on February 17, 1961 , regarding the discharges of DeRosia and Hall on the preceding day. 4 The parties are in disagreement ( 1) as to whether three individuals, Steiner, Jones, and Bostley, should be included in the appropriate unit, and (2 ) whether certain of these executed authorization cards can properly be counted in the determination of majority These questions will be resolved hereinafter. 5 In his testimony Lahey denied having made these last statements or hai lug made re- ports of these matters to his superiors but his denials were not convincing in the face of the statements he admitted having made to Allen Hence the Trial Examiner has credited the testimony of Allen. GREENFIELD COMPONENTS CORPORATION 485 At some indefinite time about the first of the year 1961,6 Foreman David Larsen told employees Newman and Mankowsky that the Union would never get inside the plant for Respondent would close its doors first and that Respondent knew every- thing that was going on so far as the Union was concerned because some unnamed employee who had been approached to join the Union was telling them all that was going on.7 2. Norma DeRosia On or about February 7, 1961, DeRosia requested Charlie Jones, who was in charge of the sealing department on the evening shift in the absence of Sealing De- partment Foreman Allen Host who left the plant at 5 p.m., that he permit her to transfer from her job of unloading the trays from the furnace because she contended the lifting involved therein was hurting her previously injured arm and causing it to swell. With Host's permission Jones transferred her from the furnace job to -a regular assembly job which she had previously performed and informed her for Host that, as she had a 5-cent merit increase coming to her, her pay would not be reduced 5 cents because of this transfer. Jones then transferred Ann Budrewicz from her job as assembly employee to the furnace job. Budrewicz lasted on the furnace job from February 8 until 10 when she requested and was permitted by Jones to transfer back to her former assembly position. On that same day Jones placed employee Cecile Brunelle on the furnace job where she remained until May 17 when she re- quested and also received a transfer back to her former position. The evidence presented by Respondent showed the following: (1) At or before the foremen's meeting on February 14, Host happened to mention the DeRosia transfer of February 7 to President Sweeney who knew nothing of the transfer until that time and who made no comment about the matter at the time. (2) On the following day, February 15, Sweeney referred to the DeRosia transfer in conversation with Host who explained that on or about February 7 DeRosia had requested the transfer from the furnace job because the lifting entailed in that job was causing her previously injured arm to swell and further that about a week prior to that request DeRosia had inquired as 'to what the title or her job as the furnace was. (3) On February_ 16, the next day, Sweeney ordered Host to discharge DeRosia because, as Sweeney testified at the hearing, 'I told him that she was to be let go because I was dissatisfied with the idea of reassigning her. That we had spent considerable time on this inspection process, we had done all we could to encourage her on the job over the period. I couldn't accept as a legitimate excuse the question of a physical problem after 8 or 9 months on the job. And thirdly, if we were to take a girl and give her a position in which we looked at as being a step towards promotion, a posi- tion in which we wanted others to think of as advantageous and desirable so we could find more girls among our shift and promote and use as the basis of growth, that it was serving the Company ill to allow anyone to take a demotion. No, but he [Host] had a problem to face the instant she [DeRosia] asked to be taken off [the furnace]. * * * * * * * I knew he [Host] had a problem whether he [Host] knew he had a problem or not. Prior to the beginning of the shift at 3 p.m. that same day Host told DeRosia that he was "afraid that we have to let you go" because she had given up her job on the furnace. He then handed DeRosia two checks for services rendered to and including the whole of February 16 and told her that she need not work out the day. DeRosia asked for and received permission to see Sweeney. 9 Originally General Counsel's witness, employee Mary Newman, testified that these conversations occurred about November 1960 but, after having her memory refreshed, thought the date might have been in January 1961. 7 Larsen denied having had any conversation about the Union with Newman and Mankowsky but his reliability as a witness was badly shaken when he went his superiors one better by claiming to have known nothing about the Union until "a couple of weeks after the discharges." The Trial Examiner must accept the testimony of Newman. 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DeRosia went immediately to Sweeney's office where she appeared in tears. Sweeney repeated to DeRosia that she had been discharged because she had trans- ferred from the furnace job and that from the Company's standpoint she could not be permitted to accept a "demotion." 8 DeRosia explained that the yanking of the parts out of the jig as it came from the furnace was irritating her old arm injury and causing her arm to swell. Sweeney said he could not see that this was an excuse in view of the 8 or 9 months she had spent on the job and stated that Respondent had spent a lot of time and money in teaching her the furnace job 9 and, therefore, they could not permit her to transfer back to assembly work. DeRosia then offered to go back to the furnace job "if it meant my job." Sweeney refused the offer without any investigation of the alleged arm injury after admitting that DeRosia was the oldest girl on the clock, her work had been excellent, and that she had never caused any trouble in the plant. Thus was the DeRosia discharge accomplished. Respondent has never since offered reinstatement to DeRosia. 3. Barbara Hall Barbara Hall was first employed by Respondent on February 29, 1960, and worked steadily for Respondent thereafter until her discharge on February 16, 1961. She became interested in the Union through her good friend and fellow employee, Norma DeRosia, whom Hall thereafter assisted in soliciting other fellow employees to join the Union, to attend union meetings, and matters of that sort. As found heretofore, DeRosia, Hall, and Weld were the three most active employees on behalf of the Union throughout this whole period. In the summer of 1960 due to slack business Respondent laid off all of the employ- ees in the assembly department except Hall and DeRosia. In the latter part of January 1961, Hall asked Charlie Jones for a raise. During the conversation about this request Jones told Hall that, if the Union ever got into the plant, the plant would collapse because it was even then hanging by a thread.lo On February 14, Hall asked Charlie Jones for permission to report late for work the following day on the ground that her husband was reporting to a new job in New Hampshire that day and consequently it was not known when he would be able to get the family automobile back home so that Hall could drive herself to work. Jones granted her such permission. However, on February 15, Hall's husband had not returned from his New Hamp- shire job at 7:30 p.m., so that Hall telephoned the plant, told Steiner that she could not get into work that night, and requested that he so inform Jones which Steiner promised to do.ll After Hall had reported on the following day, February 16, and had worked for about one-half hour, Foreman Allen Host called her to the back of the room and told Hall that be was going to have to let her go because she had lost too much time since the first of the year.12 At this same time Host handed Hall 9 Apparently at the time DeRosla was receiving 5 cents more per hour than the other employees in the department. Whether this extra 5 cents was due to the furnace position or to past merit increases remained speculative on this record There is no showing that either of DeRosia's successors on the furnace job was granted a 5-cent increase upon her transfer to that job. O The second transferee to the furnace job, Cecile Brunelle, had been hired only a month previously in January 1961, which would indicate that little or no training was necessary for employment on the furnace job. io Jones denied having made this statement to either DeRosla or to Hall This was ono of the few matters about which Jones testified positively. Jones' demeanor on the stand as well as the slippery character of many of his answers was such as not to create any confidence that the testimony he was giving was true 11 Hall's testimony in this regard is uncontradicted as Steiner was not called as a wit- ness Steiner's position with Respondent is considered hereinafter 12 Host's testimony agreed with Hall's except that he testified that he had used a 10-week period instead of the period since January 1, 1960 He further testified that on Febru- ary 16 he happened to look up Hall's attendance record in order to determine if Hall were entitled to the merit increase she had previously requested, that at that time he discovered her "poor" attendance record, asked Vice President Sauter what he should do, and was told by Sauter to "get rid" of. Hall However, Hall's attendance record since January 1, 1961, showed that Hall had worked 240 4 hours out of a possible 250 hours, a much better work record than that of at least four other employees in the department who not only were not discharged but who were, in fact, granted merit increases. It is also notable that Respondent made no attempt by the introduction of Hall's work record prior to January 1, 1961, to substantiate Host's claim in his testimony that Hall had missed some 40 hours out of 300 working hours. GREENFIELD COMPONENTS CORPORATION 487 two checks which also paid her in full for services rendered through February 16, as had been done in the case of DeRosia. Respondent has not offered Hall reinstatement. B. Conclusions 1. Interference, restraint, and coercion The threats made by Foreman Lahey, Larsen, and Jones to the effect that, if the Union came in, Respondent would close its doors and in one such episode at least, purporting to quote Vice President Sauter to the same effect , clearly constituted violations of Section 8(a)( I) of the Act . The Trial Examiner so finds. Although Sauter's similar comment to DeRosia at the time of her hire is only evidence of Respondent's umon animus and not an unfair labor practice because of the 6 months' limitation of Section 10(b) of the Act, that credited evidence does tend to corroborate the fact that the foremen above did in fact make the statements attributed to them. In addition, Larsen's statement to the effect that the Respondent knew what was going on in union matters because some employee was reporting to it and Lahey's remark that he knew which employees were for or against the Union also tended to coerce the employees by indicating that Respondent had the union activities of its employees under surveillance . Accordingly, the Trial Examiner finds that these remarks also constituted violations of Section 8(a)(1) of the Act. Respondent's main defense to all these charges was that it had no knowledge of any union activities among its employees until the day after the discharges of DeRosia and Hall on February 16, 1961 . The testimony of Supervisors Host, Jones, Larsen, and Lahey effectively disproved this contention as did Sweeney's own testimony regarding his conversation with the Greenfield businessman about the number of questions being asked by Organizer Harley. Under this testimony the Trial Examiner must find that Respondent not only had knowledge of the union activities going on in its plant long prior to February 16, 1961 , but also, in the words of Host, "kept his eyes and ears open" for the same ever since early 1960. We come now to the question of the general 10-cent wage increase granted by Respondent to its employees on July 1, 1960, and to the merit wage increases granted by Respondent from October 1960 and thereafter through May 1961 . Although due to Section 10(b) of the Act the general 10-cent wage increase of July 1, 1960, cannot be found to be an unfair labor practice, the increase was granted by the Respondent at the time the Union was known to be making progress in its organiza- tional campaign among Respondent's employees and due to the timing of the increase rather effectively halted that campaign at least temporarily . It must also be noted in this connection that this general 10-cent wage increase came contemporaneously with the time when Respondent's business became so poor as to require Respondent to lay off all the assembly department employees except DeRosia and Hall, which seems an unusual time for the granting of a general wage increase. Respondent also had the practice of granting individual merit increases of 5 and 10 cents per hour but so far as this record shows this practice was seldom, if ever, used prior to the general increase of July 1, 1960, nor was it used at all during the quiescent period from July to October 1960 in the Union's campaign . But the record shows that these so-called merit increases came into use at the time the union campaign was reactivated in October and also increased in proportion as the cam- paign itself progressed until in February 1961 at a time when the Union had over 50 percent of the employees signed to cards authorizing the Union to bargain on their behalf when Respondent increased the number of these merit increases to 22 or approximately one-third of Respondent's then working force. By May 1961, Respondent had granted approximately as many merit increases as there were em- ployees in the plant. The timing and the'number of these merit increases would indicate that Respondent was making use of them in order to hamper, delay, or kill the organizational attempt of the Union. For instance, five girls were given these so-called merit increases the week following the discharges of DeRosia and Hall and Foreman Lahey told employee Allen that he hoped she was not for the Union inasmuch as he had done so much for her and was giving her a 5-cent merit increase the following week. Hence the Trial Examiner believes and , therefore, finds that Respondent was inter- fering with , restraining, and coercing its employees into abandoning the Union by the judicious granting of these merit increases , all in violation of Section 8(a)(1) of the Act. 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The discharges As found above DeRosia and Hall were two of the three most active employees in the plant on behalf of the Union, the third being Luvycie Weld. On one occasion about the time of her discharge DeRosia had approached Steiner and solicited his signature on a union authorization card while on another such occasion DeRosia's huband and Union Organizer Murdock had similarly approached Steiner at his home for a similar purpose. Even if not technically a supervisor, Steiner was one of the highest paid employees at Respondent's plant at $1.92 cents per hour. After DeRosia's discharge Foreman Jones told employee Weld that the visit of DeRosia's husband and Murdock to Steiner was the thing which had caused her discharge. Barbara Hall was known by Respondent to be DeRosia's best friend as well as an ardent union advocate and, therefore, suspect in Respondent's eyes. The prima facie cases of discriminatory discharge proved by the General Counsel were strengthened by the almost absurd and, in fact, mendacious reasons put forth by Respondent as the real cause of the discharge in each of these cases. In the DeRosia case, Sweeney acknowledge that Foreman Host had been unable to see any blow to plant morale by permitting DeRosia to transfer from the furnace job to assembly work with which she was equally familiar or in DeRosia's taking a "demotion" or in the loss of money in the training of DeRosia for the furnace job. The facts prove Host to be right. The furnace job at most paid only 5 cents more per hour than assembly work. In addition it is undenied that Host told DeRosia that she would not have to take a 5-cent cut because of the transfer as she had a merit increase coming to her which would equalize the transfer. The claim of the necessity of long training to handle the furnace job was effectively disproved by the, transfer of Cecile Brunelle to the furnace job as Brunelle was first hired by Re-. spondent in January 1961. In addition Sweeney who saw a blow to plant morale in the transfer of DeRosia from the furnace job could see none in the subsequent transfers of Ann Budrewicz and Cecile Brunelle back to assembly work from the same furnace job. Furthermore, Sweeney brushed aside DeRosia's claim that the job was inflaming a prior physical arm injury without even an investigation thereof. And then, in order to complete the discharge, Sweeney refused DeRosia's offer to return to the furnace job. Obviously he did not wish to retain DeRosia as an employee and was using the transfer as a pretext for the discharge. Respondent's excuse for discharging Hall is, if anything, even more transparent. According to Respondent, Hall was fired for missing some 40 out of some 300 hours during a 10-week period. Respondent failed to prove this claim whereas the record does show that from January 1 to February 16, 1961, Hall had lost only some 9 out of approximately 250 hours. The record further shows that at least four employees with much worse absentee records than Hall's not only were not discharged by Respondent but were, on the other hand, recipients of merit increases at or about this same time. Obviously, Respondent had some other reason than alleged absenteeism for wanting to be rid of Hall as an employee and, therefore, this mendacious excuse tends to strengthen the General Counsel's prima facie of discrimination in the Hall discharge. Accordingly, the Trial Examiner must find that Respondent discharged Norma DeRosia and Barbara Hall on February 16, 1961, because of their activities on behalf of the Union and in order to discourage membership and activities on the Union's behalf in violation of Section 8(a) (3) and (1) of the Act. C. The refusal to bargain 1. Appropriate unit and majority At the hearing the parties agreed that a production and maintenance unit was the appropriate unit for the purposes of collective bargaining. Exclusive of DeRosia and Hall whose inclusion or exclusion from the unit was dependent upon whether they were discharged discriminatorily or for cause, the parties agreed that there were 76 employees in the appropriate unit on February 20, 1961, the critical date herein. The parties also agreed that, in addition to DeRosia and Hall, there were three other employees whose inclusion or exclusion from the unit was in dispute between the parties, to wit, Paul Steiner, Charles Jones, and Robert Bostley, due to the nature of their employment with Respondent. Bostley, a high school graduate, was a full-time employee of Millers Falls Company located in Greenfield. Respondent paid him a salary of $15 per week to come into Respondent's plating department after working hours and test the chemical solutions which Respondent was using in its plating operations. In the 21 weeks from January 1 to May 20, 1961, Bostley worked for Respondent less than 3 hours GREENFIELD COMPONENTS CORPORATION 489 per week during 17 weeks. In the other 4 weeks he worked 6 hours during I and 4 hours during the remaining 3 weeks. His only job is to test the solutions in use and to report his findings to the plating room foreman. These facts show that Bostley is at most a part-time specialized employee with no connection or community of interest with the production and maintenance em- ployees and whose interest was divorced and different from those of the production and maintenance employees with whom he has no contact. Therefore, Bostley should be excluded from the appropriate unit. Paul Steiner had the duty of maintaining Respondent's five or six welding ma- chines and seeing to it that the products from those machines were correct together with making the necessary machine adjustments so that the products would be correct. Approximately eight girls operated these machines so maintained and adjusted. Until December 9, 1960, Steiner was the most experienced man on this second shift (3 p.m. to 11 p.m.) in the assembly department but on that day Re- spondent posted a notice stating in part, "Ervin Price is officially plant foreman for nights" although from August 1960 up until that time Price had been learning the business in part, at least, from Steiner. According to Sweeney, Steiner did not have the authority to "assign work" but "well, he may pass out the work (to the eight girls) because he would have to set a machine up should a job change." Otherwise, according to Sweeney, Steiner only does "as he was instructed by" Price, the night foreman. Steiner was paid $1.50 per hour whereas the other assembly department employees were paid from $1.05 to $1.25, according to Sweeney. Although the question is far from clear of doubt, the Trial Examiner will hold that, in the absence of any further evidence as to Steiner's actual duties and re- sponsibilities, that Steiner was not on February 20, 1961, a supervisor within the meaning of the Act.13 As found heretofore Ervin Price was, according to the announcement of December 9, 1960, "officially plant foreman for nights" over some 25 employees working on 2 floors of Respondent's plant. According to Sweeney, Price was the only supervisor on duty at the plant after 5 p.m.-the other foreman and officials having gone home at that time for dinner and the night. Sweeney maintained at the hearing that these foremen, including Allen Host, foreman of the sealing room, remained in charge of the plant even though absent therefrom. On the other hand Host denied that he was still in charge during his absence from the plant. The sealing room where the furnace is is located downstairs where Price spent little, if any, of his time. Working downstairs in the sealing (furnace) department were eight or nine women employees plus Charlie Jones. Admittedly Jones was in charge of the furnaces in the absence of Host for the reason that on the second shift Jones was the only person in the plant who knew anything about said furnaces. If anything went wrong with the furnaces at night, Jones was under instruction to fix them if he could or otherwise to get in touch with Foreman Host. Although Respondent maintained that Jones was not a supervisor, he was required by Re- spondent to report early every afternoon to receive whatever instructions Host might have for the second shift before Host left the plant for the night. According to both Host and Jones, these were detailed instructions regarding the product to be produced that night and which employee was to produce it. According to the same two witnesses, whenever anything new or different came up during the shift regarding the personnel, such as sickness and the like, Jones was under instructions to consult Price which seems to have been Price's only connection with this sealing department. Jones, however, was responsible for the quantity and quality of pro- duction of the second shift. Although he claims he did not keep production records Jones admitted that he just "transfers" certain data from the employees' time slips "onto the paper for Allen Host." Host had previously acknowledged that these were his production records. The facts show that, when DeRosia asked for a transfer from the furnace job, she asked Jones to see Host about permitting her to transfer and that thereafter Jones transferred DeRosia to inspection or assembly work and transferred Ann Budrewicz to DeRosia's former job on the furnace. At that time Jones told DeRosia that, as she had a merit wage increase due her at that time, Respondent would not reduce her wages 5 cents because of her transfer. On two other occasions in the month of February prior to February 16, 1961, when employee Amelia Bessette complained to Jones that she could not assemble NPN headers or square headers because doing so made her nervous or tired her eyes, Jones transferred Bessette to other assembly work without securing permission from either Host or Price. On February 14, Hall notified Jones that she would be late the following day and "Prior to the hearing , Respondent admittedly had made Steiner into a de lure supervisor. 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD received permission from him to do so without consultation with Host. Further, when Hall found that she was not going to be able to get to work on February 15, she telephned Steiner at the plant who promised to relay that information for her to Jones. When employees in the sealing room loafed or became quarrelsome, it was Jones' duty to straighten them out which he did without help from Host or Price. After employee Weld had been in two "scraps ," Jones warned her that, if she engaged in another, "you get it." When employees on the second shift sought wage increases , they asked Jones for the same. . Obviously the employees on that shift recognized Jones as their supervisor. In other words on the second shift in the sealing department Jones was performing the duties of a supervisor under instructions from Host. Of course, if anything abnormal occurred during the shift which Jones did not feel capable of handling by himself, he would call Host at home for further instructions or help . But the fact remains that on the second shift in the sealing department Jones was the only person with knowledge enough and authority to run the department on behalf of Respondent . As shown above this recognized by all the employees as well as by Price. If Respondent's contention that Jones was not a supervisor is true even though Respondent admits that Jones was responsible for the quantity and quality of the production on that shift , then we reach the anomalous situation where the sealing department , Sweeney considered to be the basis for his whole plant opera- tions, was operating at night after 5 p.m. when Host went home without supervision. In its brief Respondent made much of the fact that Jones never attended fore- men's meetings which were held on Tuesday evenings. This argument proves only .that one man cannot be in two places at one time . The furnace operation is such as to require the presence of a supervisor at all times . And these foremen's meet- ings were always held at the time Jones was attending the furnace. Ergo Jones could not attend. The facts prove and , therefore, the Trial Examiner finds that Charlie Jones was in fact a supervisor within the meaning of the Act and , therefore , must be excluded from the appropriate unit. Consequently the number of employees in the appropriate unit here on February 20, 1961, was 79, consisting of the 76 employees the parties agreed upon plus DeRosia, Hall, and Steiner. General Counsel has presented in evidence here cards authorizing the Union to act as the bargaining representative signed by 42 individual employees in the appro- priate unit as of February 20, 1961, the day on which the Union made its request for recognition. Of these Respondent in its brief contends that 16 must be rejected in any compu- tation of the majority because 8 were signed in May or June 1960, and were , there- fore, "stale," 7 were executed but the date thereon was not filled in by the employee executing the same although in most of these cases the date was added by the individual , Weld, who received the card and added the date at that time, and the 16th was a card signed "Elenor Kent" and witnessed by General Counsel's witness Sabelowski. On the question of staleness Respondent in its brief cites The Grand Union Com- pany, 122 NLRB 589, as authority for its contention. This case is inapposite for in the Grand Union case the decision shows that it was not the passage of time or "staleness" but the fact that the five employees whose cards were in question testified positively at the hearing that they did not want the union to represent them in and during the second and current organizational campaign there at issue . In the instant case none of the eight employees involved so repudiated their signed authorizations even though at least two of them were witnesses for the General Counsel. The record fails to disclose that any of them were unavailable to testify if as a matter of fact they had wished to repudiate their signed authorization cards Under these circumstances the burden was on Respondent to produce the repudiation of the presumption of the continuation of the authority from the execution thereof as was, in fact, done in the Grand Union case. Respondent maintained in its brief that these cards could not be counted because the employees signing same did not fill in the date thereon . However, in each in- stance there was credited testimony that each of these cards was executed prior to the critical date. Respondent further contends that the second seven cards should not be counted because the employees "thought" they were signing cards in order to secure an elec- tion in the plant. Factually this is not so. But the short answer to the argument is that the wording on the card , which the employees read. showed clearly that they were authorizing the Union to bargain on their behalf. For the purpose of deter- mining majority representation , union membership is immaterial . Accordingly, the Trial Examiner finds that these seven cards are valid authorizations. GREENFIELD COMPONENTS CORPORATION 491 The last card about which Respondent complains is that bearing the written sig- nature "Elenor Kent," a card which Nina Sabelowski testified she saw employee Eleanor Kent execute 14 Obviously the spelling of the name Eleanor on the card was incorrect although the handwriting is similar to admitted authentic signatures of Eleanor Kent Nina Sabelowski appeared to be an honest witness. However, the Trial Examiner is going to make no finding in regard to the authenticity of this card as it is unnecessary under the facts here. Not counting the Kent card, the facts show that on February 20, 1961, the Union had 41 validly executed collective-bargaining authorizations out of the 79 employees (including Kent and Steiner as well as DeRosia and Hall) in the appropriate unit .and was, therefore, the authorized bargaining representative of the employees in the appropriate unit on February 20, 1961, and thereafter. The Trial Examiner so finds. 2. Request for recognition On February 20, 1961, Union Field Organizer William F. Murdock telephoned President Sweeney at Respondent's plant and, after being informed by Sweeney that the discharges of DeRosia and Hall were an internal corporate matter which ,he would not discuss with an outsider, told Sweeney that the Union represented a majority of the Respondent's employees and requested recognition for the purposes of collective bargaining together with an offer to prove such majority by way of a card check. Sweeney requested that this demand be put in writing so that Respondent could consider same. On February 20, 1961, over the signature of W. F. Murdock the Union notified Respondent by letter in pertinent part as follows: As requested by you during our telephone conversation of February 20, I hereby notify you formally that a majority of the production employees of Greenfield Components Corporation have designated the United Electrical, Radio and Machine Workers of America as their representative for collective bargaining purposes. I further request that you meet with representatives of your employees and the Union for the purpose of negotiating an agreement covering wages, hours, and other conditions of employment. I offer to submit evidence, to an impartial and qualified third party agreed upon between us, of a majority designation by your employees. By letter dated February 24, 1961, over the signature of Francis J. Sweeney .as president of Respondent, Respondent notified the Union as follows: This will acknowledge your letter dated February 20, 1961. It is the position of Greenfield Component's Corporation that unless and until your union has been duly certified by the National Labor Relations Board as the bargaining representative of the employees at our plant, that company will not meet with your representatives for the purpose of negotiating a contract. Subsequently Respondent has failed to retreat from the position taken in its letter. Accordingly, the Trial Examiner must find that the Respondent refused to recog- nize and bargain with the Union as the bargaining representative of Respondent's employees in the appropriate unit on and after February 20, 1961, although the Union was at that time the representative of a majority of Respondent's employees in the appropriate unit and at all times thereafter. Consequently on and after February 20, 1961, Respondent has failed and refused to bargain with said Union as such authorized collective-bargaining representative of its employees in violation of Section 8(a)(5) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection 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 com- merce and the free flow of commerce. V. THE REMEDY It having been found that the Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. 14 Eleanor Kent herself was unavailable at the time of the hearing and, therefore, did not testify 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It having been found that the Respondent discriminated in regard to the hire and tenure of employment of Norma DeRosia and Barbara Hall by discharging each of them on February 16, 1961, and thereafter not reinstating them, the Trial Ex- aminer will recommend that the Respondent make each of them whole for any loss of pay she may have suffered by reason of said discrimination against her by payment to her of a sum of money equal to that which she would have earned as ,wages from the date of the discrimination against her to the date of her reinstate- ment less her net earnings during such period in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289. It having further been found that on February 20, 1961, and at all times there- after, Respondent has refused to bargain collectively with United Electrical, Radio and Machine Workers of America as the exclusive bargaining representative of Respondent's employees in the above-found appropriate unit, it will be recommended that the Respondent, upon request, bargain collectively with said Union as such representative. Because of the variety of the unfair labor practices engaged in by the Respondent, the Trial Examiner senses an attitude of opposition to the purposes of the Act in general, and hence the Trial Examiner deems it necessary to order that the Re- spondent cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act. CONCLUSIONS OF LAW 1. The United Electrical, Radio and Machine Workers of America is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discharging Norma DeRosia and Barbara Hall on February 16, 1961, thereby discriminating in regard to their hire and tenure of employment and dis- couraging union activities among its employees, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 3. All production and maintenance employees of Respondent employed at its Greenfield plant, exclusive of office clerical employees, guards, professional em- ployees, and all supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within ,the meaning of Section 9(b) of the Act. 4. At all times since February 20, 1961, United Electrical, Radio and Machine Workers of America has been, and now is, the exclusive representative of all the employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By failing and refusing on, and at all times since, February 20, 1961, to bar- gain collectively with United Electrical, Radio and Machine Workers of America as the exclusive representative of the employees in the aforesaid unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed to them in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] Local Union #469 of the United Association of Journeymen & Apprentices of the Plumbing & Pipe Fitting Industry of the United States & Canada, AFL-CIO [Hansberger Refrigera- tion & Electric Co.] and Independent Contractors Association. Case No. 28-CC-82 (formerly 21-CC-408). January 24, 1962 DECISION AND ORDER On June 29, 1961, Trial Examiner Howard Myers issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in unfair labor practices and recommending 135 NLRB No. 51.