Leviton Manufacturing Co., Inc.

In the Matter of LEVITON MANUFACTURING COMPANY, INC. and UNITED ELECTRICAL AND RADIO WORKERS OF AMERICA Case No. C-046-Decided March 20, 1939 Electrical Products Manufacturing Industry-Interference, Restraint, or Coer- cion-Discrimination: discharge, charges as to one employee of, sustained- Reinstatement Ordered: discharged employee-Back Pay: awarded discharged employee ; monies received by employee for work performed upon Federal, State, county, municipal, or other work-relief projects to be deducted and paid over to agency supplying funds for projects-Company-Dominated Union: charges of, dismissed as without evidence-Collective Bargaining : charges of, refusal to bargain collectively , dismissed as without evidence-Evidence: objection to denial of motion for an adjournment and ex parte proceeding sustained by an order reopening record , permitting respondent to cross-examine witnesses and to present evidence on its own behalf. Mr. Victor Pascal, for the Board. Mr. William L." Schwartz, Mr. Philip Warshaw, and Phillips, Mahoney do Fielding, by Mr. Jeremiah T. Maloney and Mr. George Spohr, Jr., all of New York City, for the respondent. Mr. Julius E. Bagley, of Brooklyn, N. Y., for the Union. Mr. Harry A. Sellery, Jr., of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges duly filed by Maurice Levine, a member of United Electrical and Radio Workers of America, herein called the Union, the National Labor Relations Board, herein called the Board, by Elinore M. Herrick, Regional Director for the Second Region (New York City), issued its complaint dated August 13, 1937, against Levi- ton Manufacturing Company, Inc., Brooklyn, New York, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, with- in the meaning of Section 8 (1), (2), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accompanied by notice of hearing, were duly served upon the respondent and the Union. In 11 N. L. R. B.. No. 116. 1248 LEVITON MANUFACTURING COMPANY ET AL. 1249 respect to the unfair labor practices, the complaint alleged in sub- stance: (1) that the respondent urged, persuaded, and warned its employees to refrain from becoming or remaining members of the Union, threatened them with discharge and other reprisals if they became or remained members thereof, and kept under surveillance the meetings and meeting places of its union employees; (2) that the respondent about April 7, 1937, discharged Maurice Levine because he applied for membership in and assisted the Union and engaged in concerted activities with other employees for the purposes of col- lective bargaining and other mutual aid and protection; (3) that the respondent refuses and has refused to reinstate Levine; and (4) that by these acts the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Sec- tion 7 of the Act, and was continuing to do so. On August 20, 1937, the respondent duly filed its answer in which it denied the substantial allegations of the complaint, except that of interstate commerce. It further affirmatively alleged that Levine voluntarily resigned from his position with the respondent and left its employ. The answer concluded by moving that the complaint be dismissed. With its answer the respondent filed a motion for a bill of particulars with respect to the circumstances of Levine's dis- charge and the coercion of its employees, and a motion for an ad- journment of the hearing. The motion for a bill of particulars was granted and the bill of particulars was served upon counsel for the respondent on August 23, 1937, prior to the commencement of the hearing. Pursuant to the notice and the amended notice of hearing, a hear- ing was held in New York City on August 23, 1937, before H. R. Korey, the Trial Examiner duly designated by the Board. The Board, the respondent, and the Union were represented by counsel. Full opportunity to be heard, to examine and cross-examine wit- nesses, and to introduce evidence bearing upon the issues was af- forded to all parties. At the commencement of the hearing, the respondent moved for an adjournment of the hearing and the Trial Examiner denied this motion. Thereupon William L. Schwartz, counsel for the respond- ent, after using contumacious language, withdrew from the hearing, which thereafter proceeded ex parte in respect to the respondent. The Trial Examiner reserved his ruling upon the motion to dismiss the complaint. The motion is hereby denied. Isidor Leviton, president of the respondent, who was duly served with a subpoena duces tecum, and Robert J. Kupferman, who was duly served with a subpena, under the fictitious first name, "John," his true name being unknown, failed to appear at the hearing. 1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On September 22, 1937, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon the parties. He found that the respondent had engaged in and was engaging in un- fair labor practices affecting commerce, within the meaning of Sec- tion 8 (1) and (3) and Section 2 (6) and (7) of the Act, and recom- mended that the respondent cease and desist from such practices and that Maurice Levine be reinstated and given back pay. The Trial Examiner made no findings or recommendations regarding the alle- gations of unfair labor practices within the meaning of Section 8 (2) and (5) of the Act. The respondent filed exceptions to the denial of its motion for an adjournment, to the proceeding ex parte with the hearing, and to the Intermediate Report, petitioned for leave to reopen the record in order to present its defense, filed a brief in sup- port of its petition, and requested an opportunity to argue its excep- tions before the Board. On October 5, 1937, the proceeding was transferred to and contin- ued before the Board. Pursuant to notices to the parties, a hearing for the purpose of oral argument was head before the Board on No- vember 10, 1937, at which the respondent and the Union were repre- sented by counsel. On November 22, 1937, pursuant to Article II, Section 38, of the Rules and Regulations, the Board ordered that the record in this case be reopened to permit the respondent to cross-examine witnesses for the Board who had already testified, and to present evidence on its own behalf. Pursuant to notices of hearing, a further hearing was held in New York City on December 1, 1937, before the said H. R. Korey, the Trial Examiner duly designated by the Board. The Board, the re- spondent, and the Union were represented by counsel. Full oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded to all parties. The Board has reviewed the rulings of the Trial Examiner on mo- tions and on objections to the introduction of evidence at both hearings and finds that no prejudicial errors were committed. The rulings are hereby affirmed. The exceptions to the denial of the respondent's motion for an adjournment and proceeding ex parte with the hearing have been disposed of by the Board's order reopening the record. The Board has considered the exceptions to the Intermediate Report and finds them to be without merit. After the second hearing, the parties were offered an opportunity to apply for further oral argument or permission to file further briefs, and the respondent filed another brief, whicl, the Board has considered. On October 28, 1938, the Board or- dered that Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order herein be issued, granted the parties the right LEVITON MANUFACTURING COMPANY ET AL. - 1251 to file exceptions, to request oral argument before the Board, and to request permission to file a brief with the Board. On November 14, 1938, the Board issued Proposed Findings of Fact, Proposed Con- clusions of Law, and Proposed Order. Thereafter the respondent filed exceptions to the Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order, and requested permission to file a brief and permission to argue orally before the Board. On December 21, 1938, all parties were granted permission to file briefs, and thereafter the respondent filed a brief. Pursuant to notices to the parties, a hearing for the purpose of oral argument was held before the Board on Jan- uary 26, 1939, at which the respondent and the Union were represented by counsel. The Board has considered the brief and the exceptions to the Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order, and finds the exceptions to be without merit. Upon the entire record in the case, including a stipulation entered into by and between the Board and the respondent on April 11, 1938, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Leviton Manufacturing Company, Inc., is a New York corporation, having its principal office and place of business in County of Kings, State of New York. There it manufactures, distributes, and sells electrical appliances, wiring devices, and products. The respondent normally employs approximately 1,400 production employees. The electrical appliances are manufactured from raw materials, about 85 per cent of which come from outside New York. The finished prod- ucts are shipped to almost every State of the United States, the West Indies, and South America for sale in the five- and ten-cent store trade. Counsel for the respondent admit that the respondent is engaged in interstate commerce. II. THE UNION United Electrical and Radio Workers of America is a labor organi- zation, affiliated with the Committee for Industrial Organization. The respondent's production employees are eligible for membership in the Union. III. THE UNFAIR LABOR PRACTICES With the aid of Robert J. Kupferman, a salesman for the re- spondent, Levine first entered the respondent's employ as a bakelite molder about April 1934. Except for about 8 weeks, when he was un- able to work because of ill health, he was continuously employed by 1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the respondent until April 1937. He testified that late in March 1937, he became interested in the Union. About April 1, 1937, he, and two fellow employees at his solicitation, joined the Union. Thereafter he and other employees solicited union membership from employees of the respondent. Levine testified that while he was at work on April 5, 1937, he was told by Kupferman to meet the latter outside the respondent's plant at 5:30 that afternoon. Although Levine's shift did not end until 6 o'clock, the assistant foreman allowed Levine to leave at 5: 30 p. m., saying that he "knew about it." Levine was then driven away from the plant by Kupferman in his car. After driving several blocks, Kupferman stated that he was "in hot water" with Leviton, the re- spondent's president, and that he would secure Levine a job in another electrical products factory paying about the same wages for a shorter workweek. Kupferman then gave him a sheet of paper and dictated a resignation. Levine wrote the resignation as dictated, signed it, and gave it to Kupferman. Later that evening Kupferman came to Levine's home and told him, in the presence of his wife, to "forget" about the resignation and to return to work; that thereafter if Levine wanted anything to better himself, to come to Kupferman, and not to worry about his fellow employees. Levine's testimony of his conversation in his home with Kupferman is corroborated by his wife. She testified that after Kupferman telephoned, he later came to Levine's home, that she was present while the conversation took place, that it was conducted in a friendly tone, that he told Levine to "forget" about the resignation and what had taken place that afternoon, to return to work the next morning, and that if any trouble ensued, or if Levine wanted anything, to come to Kupferman and ask for his help. Levine worked on the next day, April 6, 1937. On the following day, April 7, 1937, Levine noticed Leviton talking to his immediate superior and looking in his direction. The two of them, without speaking to him, walked by his workbench several times, stopping to look at him and his press. He testified that it was unusual for either of them to watch any employee when they were walking through the bakelite division. That afternoon Kupferman again invited Levine into his car. While driving him away from the plant, Kupferman accused him of organizing the respondent's plant, saying, "Six fellows told me you were organizing the plant . . . There is no sense fooling around with us, but you were organizing the place, and Mr. Leviton won't stand for any union, and you will have to get out. Here is your salary. Don't come back to the plant any more. If you have any clothes or anything in the plant that you want, tell me, and I will send it home LEVITON MANUFACTURING COMPANY ET AL. 1253 to you." He then gave Levine his wages in two separate,pay en- velopes, one envelope containing his wages for the week already ended, and the second envelope his wages for subsequent work. Levine testified that this was the only time that Kupferman had ever paid him his wages. At the first hearing, Levine testified that he had no income since April 7, 1937, and that he desired to return to his former job with the respondent. At the second hearing, Levine testified that between the dates of the two hearings he had earned $68 in October and Novem- ber 1937, as junior stock clerk in a clothing store, and $3.75 as a commission salesman in September or early October 1937. The testimony of Levine and his wife concerning the incidents of April 5 to April 7, 1937, inclusive, is contradicted as to the incidents involving each of them by Kupferman, Leavenworth, the respondent's plant superintendent, and Swanson, superintendent of the bakelite division. Swanson's testimony is as follows : About noon on April 5, 1937, Levine told him that because of the dust particles in the air in the bakelite division, Levine feared that if he did not quit his job, the malady which had previously required him to stop working might recur. Swanson thereupon told him that the respondent had recently instituted the practice of securing written resignations when its em- ployees ceased working, and that he would appreciate a written resignation from Levine. That afternoon he saw Levine writing, and later found on his desk a resignation signed by Levine. Swanson testified that Levine had prepared this resignation without his assistance. Swanson carried the resignation to Leavenworth's office. He told the latter that the man whom Kupferman had brought in was quit- ting immediately, and that his resignation would reduce production in the bakelite division. Leavenworth told Swanson that because of the "red-tape" it would take a few days to secure another experienced bakelite molder, and that he would try to arrange to maintain the level of production. The next morning Leavenworth told Swanson that it had been ar- ranged for Levine to work for a few days until his successor could be put to work. On April 7, 1937, Swanson advised Levine that his successor would begin to work the next day. About 4 or 4:30 p. m., Swanson went to the respondent's offices, and received Levine's wages in two pay envelopes, one envelope containing his wages for the week already ended, and the second envelope containing his wages for sub- sequent work. Swanson gave him the two envelopes, thanked him for returning to help maintain the level of production, and wished him luck as he left. He said that Levine did not state that he wished 164275-39-vol. xi-80 1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to remain in the, respondent's employ, but left the plant after he received his pay. Swanson stated that he liked Levine and would have no reason to reject him if he reapplied for a job. The testimony of Kupferman and Leavenworth is in accord with and supplementary to Swanson's : Leavenworth testified that Swanson told him about 5:30 p. m. on April 5, 1937, that a molder whom Kupferman had brought in was quitting, and laid Levine's resignation on Leavenworth's desk. Leavenworth said that he would see what he could do to maintain the level of production,,but did not attempt to communicate with Levine, nor did he request Swanson to do so. Instead Leavenworth went to the respondent's offices and at approximately 5: 15 to 5:45 p. M. talked there with Kupferman. He explained to Kupferman that Levine's resignation would leave the bakelite division shorthanded for production. He requested Kupferman to see what could be done to have Levine return to work for a few days until a substitute could be employed. Leavenworth's justification for not speaking directly to Levine is Swanson's statement that Levine was quitting immedi- ately. Leavenworth admitted that he did not ask Swanson whether Levine was still in the plant. Kupferman testified that after his conference with Leavenworth he did not attempt to communicate with Levine at the plant, because he did not know whether Levine was there. At the hearing, Kupfer- man was unable to explain why Leavenworth did not speak to Levine, since it was not shown that Swanson, Leavenworth, or Kupferman knew whether or not Levine had left the plant until 6 p. m., the hour at which Levine's shift ended. On his way home from work that evening Kupferman telephoned Levine's home, intending to speak to him in regard to his resignation. He was told that Levine had not yet come in. Kupferman testified that because he was on his way home he did not again telephone. About 7:30 p. m., he went to Levine's home. Kupferman then told Levine that he had been informed of his res- ignation, and that he was needed at the respondent's plant for a short time until an experienced molder could be hired. Levine agreed to return. Kupferman estimates that this conversation lasted approx- imately 10 minutes. He testified that it was conducted in a friendly and ordinary manner. He afterward learned that Levine worked for 2 more days. Kupferman stated that since Levine had been hired by the respondent at his request, he felt a moral responsibility to see that his resignation did not inconvenience the respondent. Kupferman categorically denied that Levine was ever in his auto- mobile, that he ever offered to secure him another job, that Levine handed him any written resignation, that he dictated or saw Levine LEVITON MANUFACTURING COMPANY ET AL. 1255 sign a resignation and that he ever told Levine to "forget" his resig- nation, or that he would see that conditions were better thereafter. Kupferman further denied that he ever gave Levine his pay envelopes. Kupferman stated that he was a salesman for the respondent, and had no one under his supervision., In the case of Levine and others, whom he had assisted in obtaining employment with the respondent, Kup- ferman testified that he had not hired such persons, but had referred them to officials who were authorized to hire employees. Kupferman said that in the case of any one desiring to work in the bakelite divi- sion, he would consult Leavenworth. Swanson stated that he had approximately 90 to 100 employees un- der his supervision in the bakelite division, and that as a matter of convenience and routine he generally informed Leavenworth about hiring new employees, their resignations, and discharges. Swanson added that although Levine's resignation stated that he was resigning to take another job, he believed that Levine had resigned because of ill health. Leavenworth testified that there had been rumors of union activity in the respondent's plant. Swanson stated that from time to time during approximately the last 2 years he had seen persons distributing union circulars or literature in front of the respondent's plant. His testimony did not disclose any other knowledge of union activity at the plant. Neither Kupferman, Leavenworth, nor Swanson was able to state the exact hour of the conferences between Swanson and Leavenworth and Leavenworth and Kupferman. All three witnesses agreed, how- ever, that these conferences were concluded prior to 6 p. m., the hour at which Levine's shift finished work. The only explanation either Leavenworth or Swanson offered as to why neither of them attempted to communicate with Levine before he left the plant is that they did not know whether he was still there. There is no apparent reason why they should have thought that Levine would leave before the end of the shift. If Leavenworth was as anxious to maintain the level of production as he states, the ordinary and normal procedure would have been to communicate promptly with Levine before he left for the day. The fact that neither Leavenworth, Swanson, nor Kupferman made any such attempt impresses the Board as unusual under the circumstances. The respondent's defense is that Levine voluntarily quit his job for reasons of health and that he was not discharged. Levine's con- duct in late March and early April 1937, prior to the incidents of April 5, in persuading two fellow employees to join the Union and thereafter in soliciting other employees of the respondent to join the Union was not that of an employee about to resign because of ill 1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD health. An employee who was about thus to resign would not begin such a course of action immediately before leaving the respondent's employ. Levine's conduct is consistent with that of an employee in normal health who is not contemplating resigning his employment. In no way does it suggest a physical condition which would shortly compel him to resign. Moreover, the record shows that Levine filed a charge with the Board on April 9, 1937, 2 days after he ceased work- ing for the respondent. About April 12, 1937, 3 days later, Leviton was advised at the Board's offices that Levine claimed to have been discharged by the respondent. If the respondent was sincere in its contention that Levine had voluntarily quit, at this point it would nor- mally have offered him reemployment, unless work for him was no longer available-a claim which the respondent has never made. If it had made such an offer, these proceedings would have been unneces- sary. The fact that no such offer was made indicates to us that the contention is untrue. It appears reasonably clear that Levine's organizing work for the Union had come to the attention of the respondent, and that the re- spondent determined to discharge him through the agency of Kupfer- man, who had originally secured him the job. It was natural for the respondent to suppose that since Kupferman had secured Levine his job he would be less likely to resist a discharge communicated to him by Kupferman than by some other person. Moreover, if the respond- ent had adopted the practice of securing written resignations from its workers when they left its employ, the failure to secure one on April 7, 1937, when Levine had worked for 2 additional days seems unusual. There is an atmosphere of such casualness about the proceedings that it is not possible to give credence to the testimony of Kupferman, Leavenworth, or Swanson, in view of the foregoing facts. We regard the wording of the resignation as significant. It reads as follows : "I hereby tender you my resignation from your employ and am leaving my position of my own accord as I have prospects to obtain another position which will pay me more money, and will be the type of work I will be more interested in." The wording is much more formal than would be expected from a mechanical employee who was filing a routine resignation in order to comply with the respondent's regulations. Furthermore, it is consistent with Levine's testimony that Kupferman had agreed to help him to get another job. The use of the phrase, "of my own accord," would be superfluous under ordi- nary circumstances, since no question would be raised that the resig- nation had not been given voluntarily. It confirms our conclusion that this formal resignation was manufactured by the respondent in order to give the appearance that Levine had not been forced to resign because of his union activity. LEVITON MANUFACTURING COMPANY ET AL. 1257 Upon the basis of the foregoing facts, we find that the respondent discharged Maurice Levine because of his union activity and thereby discriminated against him in respect to the tenure of his employment in order to discourage membership in the Union. We further find that, by such acts, the respondent has interfered with, restrained, and co- erced its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purposes of collective bargaining or other mutual aid or protection. There is no evidence in the record of domination or interference with the formation or administration of any labor organization or con- tribution of financial or other support to it, or of refusal to bargain collectively. Accordingly, such allegations of the complaint will be dismissed. Aside from the evidence of the discrimination against Maurice Levine, there is no evidence of interference with, restraint, or coercion of the employees of the respondent. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III above, oc- curring 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. THE REMEDY We have found that the respondent discharged Levine because of his union activity. In order to remedy its unlawful conduct, we will order the respondent to reinstate Maurice Levine to his former or a substantially equivalent position without prejudice to his seniority and other rights and privileges, and to make him whole for any loss of pay he has suffered by reason of his discharge by payment to him of a sum equal to that which he would normally have earned as wages from the date of his discharge on April 7, 1937, until the date of the offer of reinstatement, less his net earnings 1 during said period. 1 By "net earnings" is meant earnings less expenses, such as for transportation, room, and board , incurred by such employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere . See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies received for work performed upon Federal, State, county, municipal, or other work-relief projects are not considered as earnings, but, as provided below in the Order, shall be deducted from the sum due the employee ; and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal , State, county, municipal , or other government or governments which supplied the funds for said work-relief projects. 1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. United Electrical and Radio Workers of America is a labor organization, within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the tenure of employment of Maurice Levine, thereby discouraging membership in the labor organi- zation known as United Electrical and Radio Workers of America, the respondent has engaged in and is engaging in unfair labor prac- tices, within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 5. The respondent has not engaged in unfair labor practices, within the meaning of Section 8 (2) and (5) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respond- ent, Leviton Manufacturing Company, Inc., and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in United Electrical and Radio Workers of America, or any other labor organization of its em- ployees, by discharging, threatening to discharge, or discriminating in any other manner against any of its employees in regard to hire or tenure of employment or any other condition of employment; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer to Maurice Levine immediate and full reinstatement to his former position, without prejudice to his seniority and other rights and privileges; LEVITON MANUFACTURING COMPANY ET AL. 1259 (b) Make whole the said Maurice Levine for any. loss of pay he may have suffered by reason of the respondent's discrimination in regard to the tenure of his employment by payment to him of a sum of money equal to that which he would normally have earned as wages during the period from April 7, 1937, the date of his dis- charge, to the date of such offer of reinstatement, less his net earnings during the said period; deducting, however, from the amount other- wise due to the said employee, monies received by said employee during the said period for work performed upon Federal, State, county, municipal, or other work-relief projects, and pay over the amount, so deducted, to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects; (c) Immediately post notices in conspicuous places throughout its plant at Brooklyn, New York, and maintain such notices for a period of at least sixty (60) consecutive days, stating that the respondent will cease and desist in the manner set forth in paragraphs 1 (a) and (b), and that it will take the affirmative action set forth in para- graphs 2 (a) and (b) of this Order; (d) Notify the Regional Director for the Second Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT Is FURTHER ORDERED that the complaint be, and it hereby is, dismissed in so far as it alleges that the respondent has engaged in or is engaging in unfair labor practices within the meaning of Sec- tion 8 (2) and (5) of the Act. MR. DONALD WAKEFIELD SMITH, DISSENTING: I do not believe that the finding by the majority of the Board that the respondent has engaged in unfair labor practices within the meaning of Section 8 (1) and (3) of the Act is supported by sub- stantial evidence. The record in this case is wholly void of any evidence establishing by way of background or otherwise that the respondent engaged in a course of conduct which had the effect of interfering with, restrain- ing, or coercing its employees in the exercise of the rights guaranteed by the Act. Furthermore, the record contains corroborated and un- contradicted evidence establishing discrepancies which tend to reflect a lack of credibility in Levine's testimony. The majority finding that Levine was discriminatorily discharged is based partially upon the premise that since Levine filed a charge with the Board two days subsequent to his alleged discharge, it could not be found that he voluntarily resigned for reasons of health, as the respondent contended. I do not believe that the record in this 1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD case, in whole or in part, warrants the finding of an unfair labor practice upon the basis of what occurred subsequent to the alleged discriminatory discharge. Only the evidence establishing what oc- curred prior to and at the time of such alleged discharge should be considered. I disagree with the finding of the majority that Levine was dis- criminatorily discharged and that the respondent has engaged in un- fair labor practices within the meaning of Section 8 (1) and (3) of the Act. The complaint should be dismissed.