Panther-Panco Rubber Co., Inc.

In the Matter Of PANTHER-PANCO RUBBER Co., INC. and UNITED RUBBER WORKERS OF AMERICA , LOCAL # 156 1 In the Matter Of PANTHER-PANCO RUBBER COMPANY and UNITED RUBBER WORKERS OF AMERICA , LOCAL #156 Cases Nos. C-771 and R-801, respectively.Decided March 203, 1939 Rubber Products Manufacturing Industry-Interference, Restraint, and Coercion-Discrimination : employees discharged for union membership and activity; charges of not sustained as to some-Unit Appropriate for Collective Bargaining : production and maintenance employees , exclusive of clerical and supervisory employees ; employees with occasional supervisory duties among those excluded ; no controversy as to-Representatives : proof of choice doubtful because of numerous discrepancies in evidence as to membership application cards-Collective Bargaining : charges of refusal to bargain collectively dis- missed-Reinstatement Ordered : of employees discharged for union membership and activity-Back Pay: awarded, from date of discharge to date of offer of reinstatement-Election: ordered ; time for and eligibility date to be fixed after effect of unfair labor practices dissipated-"Yellow Dog" Contracts: discon- tinuance ordered-Espionage-Evidence : naming local chapter of national union in complaint when national union was proper party, held immaterial variance. Mr. Bernard J. Donoghue, for the Board. Brown, Field d McCarthy, by Mr. Richard H. Field, and Mr. LaRue Brown, of Boston, Mass., for the respondent. Mr. Stanley Denlinger, of Akron, Ohio, for the United. Mr. George 7'uritz, of counsel to the Board. DECISION ORDER AND DIRECTION OF ELECTION STATEMENT OF THE CASE On October 28, 1937, United Rubber Workers of America, Local No. 156, herein called the Union, filed with the Regional Director for the First Region (Boston, Massachusetts) a petition alleging that a I The words "Local #156" were not in the title of the complaint when served, but were added thereto pursuant to an amendment ordered at the hearing on motion by the counsel for the Board and consented to by counsel for the respondent. 11 N. L. R. B , No. 117. 1261 1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD question affecting commerce had arisen concerning the representa- tion of employees of Panther-Panto Rubber Co., Inc., Stoughton, Massachusetts, herein called the respondent,2 and requesting an inves- tigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Upon charges and amended charges duly filed by United Rubber Workers of America, herein called the United, the National Labor Relations Board, herein called the Board, by the Regional Director, issued its complaint dated January 15, 1938, and an amendment to the said complaint, dated February 18, 1938, against the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the Act. On January 31, 1938, the Board, acting pursuant to Section 9 (c) of the Act, and Article III, Section 3, and Section 10 (c) (2), and Article II, Section 37 (b), of National Labor Relations Board Rules and Regulations-Series 1, as amended, ordered an investigation of repre- sentatives pursuant to the petition and authorized the Regional Direc- tor to conduct it and to provide for an appropriate hearing on due notice, and further ordered that, for purposes of hearing, the repre- sentation case and the case based on the complaint be consolidated and that one record of the hearing be made. So far as is here material, the complaint, as amended, alleged in substance with respect to the unfair labor practices, (1) that the re- spondent required its employees, as a condition precedent to giving them an increase in wages, to sign an agreement not to become mem- bers of any labor union or to take part in or support any strike; (2) that the respondent, on or about the dates hereinafter stated, in order to discourage membership in the Union and other labor organizations, and to discourage concerted activities by its employees, discharged, and at all times thereafter refused to reinstate the following employees because they engaged in activities on behalf of the Union, and en- gaged in concerted activities for their mutual aid and protection and for collective bargaining: March 9, 1937, Thomas Billadeau and Warren Billadeau; October 1, 1937, Earl Guimond; October 3, 1937, Stanley Spillane; October 7, 1937, Paul Stepankos and Simon Kane- vitch; and October 20, 1937, Manuel Travers and Arthur Spillane; 8. 2 The respondent was incorrectly designated in the petition and other papers in the representation proceeding as Panther Panco Rubber Company. 3 The complaint as amended also contained similar allegations relating to the following discharges in 1937: October 4, Frank Card ; October 5, Thomas Snelders ; October 11, Edwin Fitzgerald ; October 18, Ethel Bennett ; October 20, Richard Sarrey, William Rozen, and John Strikosky ; October 24, Peter Banis ; October 28, Raymond Abearn ; November 4, James Clifford ; November 11, Norman Millette ; November 14, Antoine Coute ; December 17, Charles Rakowsky. The Trial Examiner, on motion made at the hearing by counsel for the Board , struck from the complaint the names of these 13 employees, their cases having PANTHER-PANCO RUBBER CO., INC., ET AL. 1263 (3) that by such discharge and refusal of reinstatement, the re- spondent discouraged membership in the Union; (4) that on No- vember 18, 1937, and at various times thereafter the respondent re- fused to bargain with the Union as the representative of employees of the respondent in an appropriate unit, although the Union had been designated as their representative by a majority of such employees; and (5) that the respondent interfered with, restrained, coerced, intim- idated, and threatened its employees in the exercise of the rights guar- anteed them by Section 7 of the Act. Copies of the complaint and the amendment thereto, of the peti- tion, and of notices of hearing, were duly served upon the United and the respondent. On or about January 25, 1938, and on February 24, 1938, the re- spondent filed its answers to the complaint and the amendment to the complaint, respectively, The respondent alleged therein that it had discharged Earl Guimond, Thomas Billadeau, and Warren Billadeau because of their failure to perform their work properly ; that it had discharged Paul Stepankos because of his persistent fail- ure to observe safety precautions required by the respondent; that it had discharged Simon Kanevitch because of his failure to perform his work properly and because of insubordination; that Stanley Spillane had not been discharged, but had quit voluntarily and that the respondent was still willing to return him to work upon request; that Manuel Travers had not been discharged, but had been laid off for lack of work in accordance with his seniority; and that Arthur Spillane had not been discharged but had been laid off for lack of work in accordance with seniority, and had thereafter, on January 25, 1938, failed to report for work when notified to do so; and, with respect to the alleged refusal to bargain collectively with the Union, that the respondent was ignorant as to whether or not a majority of the employees had designated the Union as their representative, and that it had always been willing to bargain with representatives of its employees designated in accordance with law. In all other respects here material the answers denied the allegations of the complaint, as amended, with respect to the unfair labor practices.4 been settled , without prejudice to the respondent's position in the proceeding . The original complaint contained allegations , which were dropped by virtue of the amendment of the complaint above referred to, relating to the discharge of six other employees in October 1937. It appears from the respondent's answer that prior to the service thereof four of those six were put back to work , and that respondent intended to give the other two work when it became available. 4 The answers also alleged that , of the other persons named In the complaint and in the amendment to the complaint (whose cases were subsequently withdrawn ), seven had been discharged because of their failure to perform their work properly , and the rest had not been discharged, but had been laid off for lack of work , in accordance with their seniority. 1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to the notices above mentioned, a hearing was held at Brockton, Massachusetts, from February, 24 to March 5, 1938, before Henry W. Schmidt, the Trial Examiner duly designated by the Board. The Board and the respondent were represented by counsel and par- ticipated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded the respondent and the Board. During the course of the, hearing the Trial Examiner made a number of rulings on motions and on objections to the admission of evidence, and, on motion of counsel for the Board, struck from the complaint the names of 13 employees whose cases had been settled." The Board has re- viewed the rulings of the Trial Examiner and finds that no preju- dicial errors were committed. The rulings are hereby affirmed. On July 7, 1938, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon the parties, in which he found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the Act. He recom- mended that the respondent cease and desist from such practices, that it reinstate with back pay Thomas Billadeau, Warren Billadeau, Earl Guimond, Stanley Spillane, and Paul Stepankos, and that upon request it bargain collectively with the Union as the exclusive rep- resentative of the respondent's employees in the unit found by him to be appropriate. He also recommended that the complaint be dis- missed with respect to Arthur Spillane, Manuel Travers, and Simon Kanevitch. On July 27, 1938, the respondent filed exceptions to the Intermediate Report, together with a brief and a request for oral argument. The United, by Sidney Grant, its attorney, also requested oral argument, but filed no exceptions to the Intermediate Report. On October 13, 1938, pursuant to notice, a hearing was held before the Board at Washington, D. C. for the purpose of oral argument. The United and the respondent were represented by counsel and par- ticipated in the oral argument. Counsel for the United stated at the oral argument that it did not wish to press the cases of the three employees as to whom the Trial Examiner had recommended that the complaint be dismissed. We find the exceptions to the Intermediate Report of the Trial Examiner without merit, save for those which are consistent with the findings, conclusions, and order set forth below. 5 These employees are named in footnote 3, supra. PANTHER-PANCO RUBBER CO., INC., ET AL . 1265 Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Panther-Panto Rubber Co., Inc., is a Massachusetts corporation having its principal place of business in Chelsea, Massachusetts, and having a factory in Chelsea and one in Stoughton, Massachusetts. This proceeding is concerned only with the factory in Stoughton. The respondent is engaged in the business of manufacturing and sell- ing rubber products, principally soles and heels. The materials used in its business consist of rubber, scrap rubber, carbon black, clays, chem- icals, and cotton sheeting. Approximately 75 per cent of the ma- terials are shipped to the respondent from points outside of Massachusetts. The respondent's gross sales of finished products during the year 1937 totaled $3,554,464.35,8 of which over 50 per cent represented products shipped to purchasers outside of Massachusetts. The respondent employed approximately 435 production workers-in the Stoughton plant on October 12, 1937, and approximately 360 in January 1938. Counsel for the respondent conceded at the oral argument that it is engaged in interstate commerce. II. THE ORGANIZATIONS INVOLVED United Rubber Workers of America is a labor organization affiliated with the Committee for Industrial Organization, admitting to its membership all workers in the rubber and allied products industries, including the employees of the respondent, except those in supervisory positions. Organizing at the respondent's plant was begun by the United, but between October 4 and 15, 1937, in accordance with its usual practice of organizing the employees of a given employer or plant into a separate local, the members employed by the respondent were formally organized into the labor organization known as United Rubber Workers of America, Local No. 156. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, arnd coercion In the early part of March 1937 several of the respondent's em- ployees, including the Billadeau brothers, Warren and Thomas, and Edwin Fitzgerald, started a campaign to organize the respondent's 6 The record is not clear as to whether this figure applies to both plants or only to the one in Stoughton . In any event, the proportion of interstate business is approximately the same in both plants. 1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plant. On March 9 the respondent learned that the Billadeaus had been discussing unionization of the plant with other workers and they were promptly discharged.? About April 1, 1937, the respondent requested each of its employees to sign an agreement not to join a labor union or to take part in or support any strike, in consideration for which those signing were to receive a 5-per cent wage increase and a 5-per cent quarterly bonus.8 As was to be expected, practically all the employees promptly signed, and for several months thereafter union activities were severely cur- tailed. At least one employee signed the contract as late as June 1937, and in July and October 1937 the respondent, when paying the bonus, informed the employees that payment was made pursuant to the contract. - In the summer of 1937 the United commenced active solicitation of members among the respondent's employees, who, on October 3, 1937, held their first general union meeting and elected officers. At the end of September the respondent learned that Stanley Spillane,9 Earl Guimond, Edwin Fitzgerald, and Arthur Spillane were members of the United. Guimond and Stanley Spillane were promptly dis- charged, the latter explicitly for joining the United.- 7 These discharges are discussed in subsection B below. 8 The full agreement was as follows : We, the undersigned employees of the Panther-Panco Rubber Company, Inc. hereby agree with our employer and with each other as follows : 1 We each agree to perform our duties faithfully, skilfully, and continuously except for interruptions beyond our control. 2 We each agree not to become members of any labor union for one year from April 1, 1937 and not to take part in or support any strike during that period. But we understand that this agreement does not prevent us from taking part in the selection of representatives to discuss with our employers the question of changes in our wages or working conditions so long as no one except employees of the Panther-Panco Rubber Company takes part in this selection or these discussions. 3 This agreement shall expire on April 1, 1938 unless we and our employers agree to renew it. 4. We understand that the Panther-Panto Rubber Company, Inc., in consideration of our making this agreement, agrees with each of us who sign it, as follows : 1. To increase our wages 5% on and after April 1, 1937. 2. To pay quarterly an additional bonus of 5 % of the wages earned during the preceding three months to all employees who have signed and faithfully performed this agreement. 5. We declare that we have read this agreement, that it has been explained to us fully, that we sign it voluntarily, and that we understand that we are in no, way required to sign it in order to retain our employment Upon signing, the employees received letters of acceptance from the respondent. O The following Spillanes will be mentioned in the course of this Decision : Fred Spil- lane, a foreman ; Danny Spillane, Fred's brother, who operated an automatic cutter ; Stephen Spillane, Fred's uncle, not an employee of the respondent ; and Arthur and Stanley Spillane, named in .the complaint in this proceeding , and sons of Stephen Spillane, and cousins of Fred. 70 These discharges are discussed in subsection B below. Fitzgerald was also discharged and Arthur Spillane laid off within a short time. Fitzgerald's case was settled during the hearing. As to Arthur Spillane, we find below that the evidence is insufficient to show that his lay-off was discriminatory. As stated above, complaint was issued by the Board against the respondent with respect to numerous other discharges which occurred in October, but they are no longer in issue in this proceeding. PANTHER-PANCO RUBBER CO., INC., ET AL. 1267 The respondent kept itself informed as to its employees' union ac- tivities by inducing some of them to act as informers. Coleman Sheehan, an employee, testified that in March and September 1937 his foreman, Fred Spillane, asked him several times to procure for Spillane certain information about the United, and that he had done so. Edwin Fitzgerald testified that Fred Spillane in March and Sep- tember tried, but without success, to obtain from him similar infor- mation. Fitzgerald gave testimony of like nature, which was not denied, concerning John Kennedy, a subforeman. Fred Spillane tes- tified that he never spoke to any employee about unions, but he did not specifically refer to the foregoing matters. Sheehan, as is usually the case with employers' espionage agents, was not of good character, and in January 1938 he was fined $25 for stealing a small sum of money. As is likewise often the case in such situations, he bore a grudge against the respondent at the time he testified.- His testi- mony, however, except for some unimportant detail, was unshaken by cross-examination. Furthermore he was corroborated by, Stephen Spillane, who impressed the Trial Examiner as a "most credible wit- ness." Stephen Spillane testified that on Sunday, October 3, Fred Spillane told him the respondent had "stool pigeons" in the plant. Fred denied his uncle's testimony, but admitted he had gone to his uncle's house that Sunday-his first visit there-because he feared he might lose his job if the respondent discovered one of his relatives was a "prime mover" in the Union. Thomas Billadeau testified, without contradiction, that George Frost, a subforeman, told him early in 1937 that there were many "squealers and stool pigeons" in the plant. We are convinced that the respondent employed Coleman Sheehan and other employees as agents for spying upon and hindering its em- ployees in their efforts at self-organization, and that the information furnished by them was imparted to those having to do with the hiring and discharging of employees, and we so find. The United's first charge against the respondent was filed on Oc- tober 4, 1937. Soon thereafter numerous c*ferences took place among representatives of the Board, the respondent, and the United and the Union, with respect to the many discharges and lay-offs then occurring, and the Union's claim to recognition as sole bargaining representative of the employees. On October 26, 1937, the respondent posted notices in the plant which stated in reference to the "yellow dog" contract above mentioned : We have been informally advised by the Labor Relations Board that the wording of this agreement is not in accordance "Sheehan, who was a millroom floormen, had been refused his job, after a general lay-off in October and November 1937, because of the conviction referred to. Even before he had committed the offense in question, however, the respondent had recalled three mill- room floormen (F. McDonald, R. Eaton, and J. Bradley) with 14 to 28 months' less seniority than he had. 1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the Wagner Act. Therefore, this agreement is null and void. However, we shall continue, until further notice, this 5% in- crease and the 57c bonus.12 At the end of the then current quarter the respondent discontinued the increase and bonus. We have held that an employer who by contract limits or attempts to limit his employees' right to join a union of their own choosing and to bargain collectively thereby interferes with, restrains, and coerces them in the exercise of the rights guaranteed in Section 7 of the Act,13 and the respondent admits that the contract in this case, which clearly interfered with and prevented the self-organization of its employees, was designed to discourage union activity and was con- trary to the provisions of the Act.14 The respondent's practice of inducing some of its employees to act as informers about union activities was also an effective means utilized by it to prevent the self-organization of its employees, since the practice was calculated to cause the employees to feel that they could exercise their right of self- organization only at the risk of losing their jobs. Indeed, as we find below, when the Billadeaus, Stanley Spillane, and Earl Guimond were discovered exercising that right, the respondent promptly dis- charged them, thus depriving its employees of potential leaders and emphasizing its determination not to allow them to join or assist the United or other labor organizations or to bargain collectively through representatives of their own choosing. We find that by requesting its employees to sign the "yellow dog" contract, by requiring such signing as a condition precedent to giving them a bonus and a wage increase, by engaging in espionage among them, and by discharging employees for union activities, the respond- ent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. "This notice is discussed below in Section V, entitled , "The remedy." ' Cf. Matter of Carlisle Lumber Company and Lumber & Sawmill Workers' Union, Local 2511, Onalaska, Washington and Associated Employees of Onalaska , Inc, Intervener, 2 N. L. R. B. 248, order enforced 94 Fed. (2nd) 138 (C. C. A. 9th ), certiorari denied 304 U. S. 575 ; Matter of Hopwood Retinning Company, Inc. and Monarch Retinning Company, Inc. and Metal Polishers, Buffers, Platers and Helpers International Union Local No. 8, and Teamsters Union, Local No. 584, 4 N. L. R. B. 922, order modified and enforced as modified 98 Fed. (2nd) 97 (C. C. A. 2nd ) ; Matter of Atlas Bag and Burlap Company, Inc. and Milton Rosenberg, Organizer, Burlap & Cotton Bag Workers Local Union No. 2469, affiliated with United Textile Workers Union , 1 N. L. R . B. 292 ; Matter of The Jacobs Bros. Co., Inc. and United Electrical and Radio Workers of America, Local No. 1226 , 5 N. L. R. B. 620. 14 Counsel for the respondent state in their brief : "It may be frankly admitted that this agreement was contrary to the provisions of the National Labor Relations Act. It must also be frankly admitted that it did tend to influence the employees with regard to union matters and that it was designed to discourage union activity. That fact is perfectly obvious from the face of the document." PANTHER-PANCO RUBBER CO., INC., ET AL. 1269 B. The discriminatory discharges The Billadeau brothers. Thomas Billadeau began working for the respondent about September 1936, and his brother, Warren, approxi- mately 2 months later. According to the uncontradicted testimony, they were "about the two best" floormen under George Frost, their subforeman. They were discharged on March 9, 1937, by Dominic Penardi, the general foreman over them. Thomas Billadeau joined the United on March 8, 1937. Warren was indefinite as to the time he joined, but was certain that he had done so. On March 9 they commenced to urge other workers to become members, and they were discharged within approximately an hour after Warren had spoken to the informer, Coleman Sheehan, about the United's efforts to organize the plant. Immediately after that con- versation Sheehan had reported to Fred Spillane, his foreman, that Warren Billadeau had spoken to him about the United and had said that the United was trying to "get into the plant" ; and while the Billadeaus were being paid off, Fred Spillane told Edwin Fitzgerald that two men were going to be discharged for trying to sign up members "for the C. I. 0." It is clear that Spillane was referring to the Billadeaus. Penardi testified that Thomas was discharged because he persisted, after several warnings, in "fooling round" with girls working at dangerous machines. Richard Lyons, the girls' supervisor, cor- roborated this testimony, and said Thomas repeated the offense the day before his discharge. As to Warren, whose discharge took place about 20 minutes after Thomas', Penardi testified : Well, Warren Billadeau come up and says, "You cannot dis- charge my brother." And I said, "Can't IP So I took him and paid him off too. Q. Up to that time had you had any complaint about the way that Warren Billadeau did his work? A. No. Penardi and Lyons claimed they knew nothing of any union activ- ity in the plant at the time the Billadeaus were discharged. Both brothers denied Penardi's testimony, and said that he discharged them suddenly, without explanation .15 Thomas Billadeau admitted talking to the girls occasionally, but denied he had ever been repri- 15Warren testified : ". . . Dominic Penardi asked me if my name was Billadeau, and I said, 'Yes.' And he said, 'Well, you are fired.' I said , 'What for?' And he said, 'How the hell do I know ?' Then he said, 'Go to the office and get your pay.' " Thomas testified : . Dominic Penardi came up to me and he said , 'You are Billadeau, aren't you?' And I said, 'Yes' He said, 'You are fired. You are all through. Go upstairs and get your pay.' I said, 'Why, what is' the matter?' He said, 'Well , you are fired. You heard what I said. Go upstairs and get your pay.' 164275-30-vol xi-81 1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD manded or warned about it. The girls did not testify. In view of Fred Spillane's remark to Fitzgerald and of the respondent's admitted anti-union attitude at this time (the "yellow dog" contract was signed only 3 weeks later), and since the two brothers were discharged within an hour after Coleman Sheehan reported Warren Billadeau's conversation to Foreman Fred Spillane, we conclude that the re- spondent, having learned of the incipient union activities in the plant, was seeking to forestall their development by the immediate dis- charge of persons participating therein, and that the discharge of the Billadeaus was motivated by their union activities. At the close of the Board's case the respondent moved to dismiss the complaint with respect to the Billadeaus on the ground that the complaint as amended alleged that they were discharged because of activities in behalf of the Union, as distinguished from the United, whereas the record contains no evidence that that local of the United had as yet commenced activities in the plant. The Trial Examiner denied the motion and we have affirmed his ruling. As pointed out above, the Union was the local into which the United, in accordance with its usual practice, grouped its members who were employed by the respondent. The discharge of the Billadeaus or of any other employee of. the respondent because of activities on behalf of the United, thereby discouraging membership therein, was equivalent, therefore, to discharging them because of activities on behalf of the Union, thereby discouraging membership in the Union, and clearly -resulted in such discouragement. Furthermore, the gist of the unfair labor practices now being discussed is interference with activities on behalf of a labor organization and discouragement of membership therein, regardless of its identity, and there is no ques- tion but that this has been proved by the record. Naming the Union rather than the United as the particular labor organization involved was, especially in view of the close relationship between them, at most an immaterial variance which could not possibly have resulted in confusing the respondent as to the issues of the case, or in prejudicing it in any other manner. We find that the respondent has discriminated in xegard to the hire and tenure of employment of Thomas Billadeau and Warren Billa- deau, thereby discouraging membership in the Union, and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act. At the time of their discharge the Billadeaus were being paid 311/2 cents an hour, each earning about $16.50 to $17 per week. Warren earned approximately $35 or $40 after his discharge, doing odd jobs of plastering. Thomas had a temporary job as machinist's helper with a railroad company which lasted about 20 weeks, for which he was paid $27 per week, thus earning approximately $540. PANTHER-PANCO RUBBER CO., INC., ET AL. 1271 On the day the hearing opened he obtained employment with the Works Progress Administration at $13 per week. Both Billadeaus want to resume their employment with the respondent. Earl Guimond. Earl Guimond was employed by the respondent in September 1932 and was discharged on October 1, 1937, by order of Arthur Greenbaum, plant superintendent. During his employ- ment he performed, at one time or another, practically every task in the factory. His foreman, Fred Spillane, testified that he thought highly of him and found him to be a well-disciplined, efficient worker, except in operating a rubber mill, his assignment during the last 4 or 5 months of his employment. In August or early September 1937, after the lull in union activities consequent upon the discharge of the Billadeaus and the making of the "yellow dog" contract, Guimond and Edwin Fitzgerald re- newed union activities at the plant, and in the middle of September Guimond joined the United. In the latter part of that month Cole- man Sheehan, one of the respondent's informers, told Fred Spillane he thought Guimond, Fitzgerald, Stanley Spillane, and Arthur Spillane were in the United, and within a few days the first three named were discharged. Guimond was told by his foreman merely to take a vacation, but Greenbaum insisted that his employment be terminated. Greenbaum testified that in the middle of September it was found that heels not uniform in hardness were being produced, and he instructed Arthur I. Ross, the respondent's chief chemist, to find the cause of the trouble and remedy it. He testified, further, that on October 1 he was informed the trouble had been located in the mill- room and that he forthwith ordered the millman responsible to be discharged. He claimed not to have known anything of Guimond's union activities at that time. Ross testified that when the complaints were made to him and he found heels of varying degrees of hardness on hand, he checked each step in the process of manufacture and established that the cause of the trouble was the faulty operation of the two rubber mills on the day shift, one operated by Arthur Williams and the other by Guimond. The milling operation consisted of sprinkling sulphur over a batch of previously prepared rubber compound and then pressing the com- pound between two closely placed, parallel, cylindrical rollers, again and again, until the sulphur was uniformly distributed throughout the batch of compound. The greater the amount of sulphur present in the compound, the harder such compound would turn out after the subsequent process of vulcanization. Thus, if the sulphur was unevenly, distributed in the compound, some parts of the resulting rubber would, after vulcanization, be harder than the specifications required, and others would be softer. Ross testified that the improper carrying out 1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of operations other than the milling operation might have caused batches of heels to be uniformly too hard or uniformly too soft, but contended that his investigation had eliminated every possible cause of non-uniformity other than faulty milling. His contention, how- ever, is not supported by his testimony. The operation next preced- ing the milling consisted of mixing rubber reclaim with various chemicals in a machine called an internal mixer,16 forming the rubber compound above referred to. Ross admitted that improper mixing could cause non-uniformity. He testified, however, that he had had a sample taken from each batch of compound as it left the internal mixer, had performed Guimond's operation on it in miniature in his laboratory, vulcanized it, and found the product good, thus proving, according to him, that the cause of the trouble did not lie in the mixer. Only a small piece, however, was taken from each batch, and Ross mentioned nothing he had done to establish that compound taken from another part of the batch would, after the subsequent processing, have had the same hardness. Ross also testified that no trouble was experienced on the night shift, and that on the day Guimond was discharged he was informed that heels made that day from early runs of the compound were defective, whereas those made from later runs of supposedly the same compound, but milled under the close super- vision of the foreman, were satisfactory. However, the record does not adequately show that anything was done to insure that the com- pound was the same at the various times mentioned. Guimond testified that the stock invariably came out satisfactory when sufficient time was taken to "break it down" in the internal mixer, and that Foreman Spillane's brother, Danny, who put the milled rub- ber through the automatic cutter, told him the stock was good when one man operated the mixer, but not when another did. James E. McCann, who worked at the internal mixer and later operated Gui- mond's mill, testified, without contradiction, that on October 1 Ross and Spillane ran a great deal of experimental stock through the mixer, and often a single batch would be processed as many as five times. He also testified that after Guimond's discharge the stock ran at least as bad as before, and that Ross and Spillane "still kept experimenting and running around ..." Fred Spillane, the millroom foreman, attempted at the hearing to focus upon Guimond the blame which Ross had tried to place upon the millroom generally. Guimond's faults, according to Spillane, who admitted that he himself had never operated a rubber mill, were that he failed to keep the two rollers, which had to be adjusted fre- quently in the midst of the operation, close enough together, and that 11 This machine was more frequently referred to by witnesses as a Bambury mixer PANTHER-PANCO RUBBER CO., INC., ET AL. 1273 he failed to manipulate the mass of compound properly. He testified that the compound milled by Guimond and Williams while he watched them and corrected their faults came out satisfactory, but that when he did not watch, there frequently was non-uniformity. While ad- mitting that both men did their work wrong at times, he claimed that Williams was amenable to correction, whereas Guimond was sulky about it and would soon fall back into his old ways. Guimond, though insisting that he operated his mill properly, admitted having been warned several times that he would be laid off if his work did not im- prove. On the other hand, Ross admitted that he continued to have the same trouble, though to a lesser extent, after Guimond's discharge, and that a certain amount of such trouble is always to be expected. He admitted also that the formula for the compound had been changed twice during the period of the difficulties. Greenbaum knew of the experimentation going on and knew that Guimond was not alone to, blame for the difficulties being encountered. We are convinced, therefore, that Guimond was not discharged for inefficiency, but because of his union activities. This conclusion is borne out by other facts appearing in the record. The discharge took place shortly after Sheehan told Foreman Fred Spillane he thought Guimond was a member of the United, and it was followed only 2 days later by the clearly discriminatory discharge of Stanley Spillane.17 Moreover, on the previous occasion, in March 1937, when union activities were commenced at the plant, the respondent had discharged the, Billadeaus and, had then had its employees sign the "yellow dog" contract. Counsel for the respondent contend in their brief that the Board should give consideration to the fact that that contract was made at a time when the Act "had not yet been declared by the Supreme Court to be valid and it was the widely publicized opinion of many eminent members of the bar that it would not be so declared," and that the contract had no significance in view of "the complete change in the situation, including the action taken by the respondent itself" with respect thereto. Aside from the question of the materiality of this contention, it may be pointed out that the re- spondent took no action with respect to the contract until over half a year after the Act had been declared constitutional by the Supreme Court,18 and even then only after several conferences among repre- sentatives of the respondent, the Board, and the Union concerning charges filed against the respondent. Furthermore the respondent's 17 Stanley Spillane's discharge is discussed below. We have made no finding concerning the discharge on October 7 of Edwin Fitzgerald since, as stated above , his case was settled during the hearing. 18 National Labor Relations Board v Jones J Laughlin Steel Corp , 301 U. S 1, and .three other cases in which the Board was a party, all decided April 12, 1937 1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contention is entirely inconsistent with its action in informing the employees in July and October 1937 that the bonus payments were being made pursuant to the contract, and in having at least one em- ployee sign it in June 1937. We find that the respondent has discriminated in regard to the hire and tenure of employment of Earl Guimond, thereby discouraging membership in the Union, and interfering with, restraining, and co- ercing its employees in the exercise of the rights guaranteed them in - Section 7 of the Act. At the time of his discharge Guimond's average earnings were $19 to $20 per week. He attempted to obtain other work but was unsuc- cessful, and at the time of the hearing his earnings after his discharge totaled only $4 or $5. He desires to be reinstated. Stanley Spillane. Stanley Spillane's employment with the re- spondent commenced in October 1933 and terminated on October 3, 1937, when he was discharged by his cousin, Foreman Fred Spillane. Stanley joined the, United some time prior to October 3, 1937, and passed out a few membership applications. As already stated, Cole- man Sheehan, one of the respondent's informers, told Fred Spillane in the latter, part of September he thought Stanley was a member of the United. Fred-Spillane, testified that he thought he might lose his job if one of his relatives was a "prime mover" in the Union, and that he there- fore went to Stanley's house on October 3 and, in Stanley's absence, told Stanley's father, Stephen, that he hated to see any of his rela- tions "prime movers in labor troubles" at the factory. Stanley came in later and admitted having joined the United. Fred testified that he recalled to Stanley how he had, protected him from discharge for misbehavior at the factory, and that he then said, "So far as I am concerned, Stanley, you and I are through." He denied he discharged Stanley. Stanley did not report for work after that, and the re- spondent introduced in evidence a paper dated November 8, 1937, and headed, "Resignation or Discharge Slip," which purported to show as the reason for Stanley's resignation or discharge, "failed to report for work. No reason given." The respondent's records, however, were not sufficiently accurate to carry great weight. Greenbaum ad- mitted that in the case of John Riley the reason stated on the "Resig- nation or Discharge Slip" was contradicted by Riley's employment card. Stanley and Stephen were positive in their testimony that Fred told Stanley not to come to work any more, and about October 14 Stanley wrote to a representative of the Board complaining that he had been discharged. At the hearing Greenbaum testified that on October 19, 1937, at a conference at the Board's Regional Office, he told Albert Hoban, a PANTHER-PANCO RUBBER CO., INC., ET AL. 1275 Field Examiner employed by the Board, in the presence of Roland Turgeon, an organizer for the United, that Stanley Spillane had not been discharged and could return to work. Turgeon denied he was present when that was said, and Hoban, although agreeing that some such statement was made, could not recall whether Turgeon was pres- ent at the time. Since numerous discharge cases, as well as the ques- tion of representation for collective bargaining, were under discussion at the conference, and it is clear that Turgeon was out of the room during parts of the conference, we are unable to credit the testimony that he was present when that particular statement was made. Fur- thermore, it appears from Hoban's testimony that the statement was merely part of a general offer of settlement covering all employees who claimed to have been discharged for union activities, and that no offer was made to reinstate Stanley Spillane without reaching a' gen- eral agreement as to all. An offer to reinstate Stanley was also made by the respondent in its answer to the amendment to the complaint. The Trial Examiner,-who' heard and saw the witnesses, considered Stephen Spillane a most credible witness and accepted his testimony as to the circumstances of the termination of Stanley's employment. The "Resignation or Discharge Slip," on the other hand, was shown to be unreliable as evidence, and furthermore, even assuming that it accurately reflected the respondent's understanding on November 8, 1937, when it was made out, it had no probative value as to what had occurred on October 3, 1937, which is the only fact here material. Moreover, it is improbable that Stanley would lightly have quit in the face of the general scarcity of jobs during the past several years. In view of these considerations, and of the respondent's clear anti-union policy, which Foreman Spillane admitted fearing at the time he spoke to Stanley, we find that Stanley Spillane did not quit his employment but was discharged because of his union membership and activity. The respondent's offers to reinstate Stanley Spillane were inade- quate. They both failed to include the back pay to which he was e ,ititled, and the offer made on October 19 was, in addition, contingent upon settling other cases. We find that the respondent has discriminated in regard to the hire and tenure of employment of Stanley Spillane, thereby discouraging membership in the Union, and interfering with, restraining, and co- ercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act. Stanley Spillane's pay was 421/2 cents per hour at the time of his discharge, except that occasionally he was paid on a piece-work basis. His earnings averaged about $20 per week. After his discharge he 1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD attempted to find other work, but was unsuccessful, and he desires reinstatement. Paul Stepankos. Paul Stepankos, a mould cleaner,-who was first employed by the respondent in the fall of 1934, was discharged on October 7, 1937, by David Bernstein, the assistant superintendent of the plant. Stepankos joined the United on October 2, 1937, and signed up one other member. He was one of the signers of the appli- cation for the Union's charter and spoke at the union meeting held October 3. Stepankos was discharged when found operating an electric brush without wearing safety glasses required by the respondent's regula- tions. He contended that notwithstanding the regulations, which he admitted knowing about, the men usually wore no glasses when oper- ating the brushes, because only one pair was available for three or four men and the glasses were always difficult to find. He admitted, however, that more than one man was seldom operating a brush at any one time, and that on the occasion of his discharge the glasses were not in use. Stepankos had been cautioned by Bernstein several times about the glasses, and about 2 months before his discharge had been warned by him that another violation would result in his discharge. While the case is not free from doubt, we find that the record does not support the allegations of the complaint that Stepankos was discharged because of union activities. Simon Kanevitch. Simon Kanevitch, a pressman on the night shift, was first employed by the respondent in 1932 and was discharged on October 7, 1937, by Dominic Penardi, the day foreman. He joined the United at some time prior to that day, and asked several other employees to join. Penardi admitted Kanevitch had been a good worker up to the night of his discharge. Penardi had general supervision over the night shift as well as the day shift, and visited the plant at night two or three times a month. He testified that on the night of October 7 he saw Kanevitch perform a certain operation improperly and cautioned him against it. Penardi testified that Kanevitch replied, "If you don't like the way I am doing it, do it yourself," whereupon he ordered Kanevitch dis- charged. Joseph Holland, the night foreman, who was also present, corroborated Penardi. Kanevitch admitted that Penardi criticized his work that night, but claimed that the criticism was unfounded. He testified as to the occurrence as follows : A.... I said, "What is the matter? I have been doing it for years like that and you never said that before. You never com- plained. I can't do any better." Q. What did he say? PANTHER-PANCO RUBBER CO., INC., ET AL. 1277 A. "Go home and stay home." I said "All right. That is final. Do it yourself if you don't want me to do it." He also testified that Holland later said to him, "That is what you get for joining the union, see?" Holland denied this. The Trial Examiner thought it improbable that Kanevitch told Penardi to do the work himself after the discharge rather than before it, and we agree with him. We find that the record does not support the allegation of the complaint that Kanevitch was discharged for union activities. Arthur Spillane. Arthur Spillane, a floorman in the millroom was first employed by the respondent in September 1936 and was laid off on October 22, 1937. He had joined the United in the middle of September, and in the latter part of that month Coleman Sheehan told Fred Spillane, Arthur's foreman, that he thought Arthur was a member. Arthur Spillane was laid off along with 160 other employees, in- cluding 23 of the 32 other millroom floormen, when lack of business induced the respondent to curtail operations. He was about 20 years of age and lived with his parents. As a result of a telephone call, his mother learned on January 25, 1938, that the respondent wanted him to report for work, but since he had left for a Civilian Conserva- tion Corps camp on January 18, he did not receive the message. In this connection Arthur Spillane testified, "No, she didn't like the idea of me going back, but she would let me, if I got the job back under decent conditions." At the hearing counsel for the respondent stated that it was still willing to reinstate him. Greenbaum, the plant superintendent, testified that the laying off and reinstatement of the respondent's employees were usually gov- erned primarily by departmental seniority. Arthur Spillane was 14th in order of seniority among the millroom floormen, and all 9 millroom floormen retained on October 22 had greater seniority than he. John Leahy and John Keating, millroom floormen with ad- mittedly less seniority, however, were reinstated before Arthur Spillane was called back, Leahy on December 2, 1937, and Keating on January 20, 1938. Greenbaum testified that these two men had been reinstated by mistake and had been, or were about to be, laid off. S. DeNolo, a millroom floorman with somewhat greater seniority than Arthur Spillane, had not been reinstated at the time of the hearing, although he had been notified to return to work at some date not stated in the record. In view of all the circumstances of the case, and particularly since he was offered employment by the respondent on January 25, 1938, we find that the record does not support the allegations of the com- plaint that Arthur Spillane was discriminated against because he 1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD joined or assisted the Union or because he engaged in concerted activi- ties with other employees. Manuel Travers. Manuel Travers, a heel pressman, was first employed by the respondent in 1930. He left in 1934 for a period of 11 months to operate a grocery store, and his last employment, upon which his seniority rating was based, began according to his recollec- tion in the latter part of May 1935, and according to the respondent's superintendent on June 10, 1935. He was laid off on October 22, 1937, when, as stated above, the respondent reduced its force, and had not been reinstated at the time of the hearing. Travers joined the United in late September or early October 1937. He signed up between 30 and 35 members, and in one case was apprehended by his foreman in the act of doing so. In its answer to the amendment to the complaint the respondent stated that Travers was still con- sidered to be in its employ and would be rehired when work was available for him in accordance with his seniority rating. Travers claimed that several pressmen retained by the respondent on October 22 or reinstated prior to the hearing had less seniority than he. Peter M. Piana, hired May 27, 1935, and Alvarol Rodriques, hired May 31, 1935, both pressmen, were laid off on October 22 but reinstated prior to the hearing. Travers did not state the exact date in May 1935 on which his own employment had commenced, but at best his seniority over these two men was slight. Furthermore, as to Piana, Greenbaum testified that he was a sole pressman, a different classification from Travers' for purposes of seniority ratings. The record shows that James DeLuca, a heel pressman first employed by the respondent on September 12, 1932, had because of a foot ailment taken employment elsewhere between June 25 and September 12, 1935, and had been absent again for a 6-week period in 1936. Counsel for the Board contended that if the same seniority rule was applied to DeLuca as to Travers, the latter's seniority would be greater. How- ever, Travers' absence from the respondent's plant was considerably longer than DeLuca's, and, furthermore, he left to operate a business of his own, whereas DeLuca left because of an illness. Joseph Czymbar, a pressman with substantially less seniority than Travers, though laid off on October 22, was reinstated on February 18, 1938. The record fails to show, however, whether he was a heel pressman or a sole pressman. George Kontaxes and Jack Ramos, heel pressmen with substantially less seniority than Travers, were retained at the time of the October 22 lay-off. Ramos was laid off on November 17, 1937, and Kontaxes shortly before the hearing. Despite this fact, we find that in view of all the circumstances, the record does not support the allegations of the complaint that Travers was discriminated against because he joined or assisted the Union or because he engaged in concerted activities with other employees. PANTHER-PANCO RUBBER CO ., INC., ET AL. 1279 C. The refusal to bargain collectively 1. The appropriate unit The complaint alleges that the employees in the production and maintenance departments at the respondent's Stoughton plant con- stitute an appropriate unit. The petition alleges that the production employees, 'excluding foremen, subforemen, and office employees, con- stitute an appropriate unit. At the hearing the Union contended that the production and maintenance employees, 'excluding clerical and supervisory employees and executives, constituted an appropriate unit, and counsel for the respondent stated that it had no objection to this unit. We understand this to mean the same unit as claimed in the petition. Greenbaum, the plant superintendent, testified that certain employees with occasional supervisory duties were not supervisory employees, while counsel for-the Board contended that they should be deemed supervisory employees and not in the unit. Counsel for the respondent, however, made no issue as to this point, and at the oral argument he stated that the respondent had conceded that the unit claimed was appropriate. We shall, therefore, not consider such employees within the appropriate unit. We find that all the production and maintenance employees of the respondent at its Stoughton plant, excluding clerical employees, executives, foremen, subforemen, and other supervisory employees, constitute a unit appropriate for the purposes of collective bargain- ing, and that said unit will insure to employees of the respondent the full benefit of their right to self-organization and to collective bar- gaining and otherwise effectuate the policies of the Act. 2. Representation by the Union of the majority in the appropriate unit There was introduced in evidence a list 19 of all employees on the pay roll of the respondent's Stoughton plant on October 12, 1937, including the production and maintenance departments, but exclud- ing foremen, subforemen, office and clerical employees, and executives. Including 9 names added at the hearing pursuant to stipulation, the list contains the names of 431 employees. To those 431 employees should be added the 4 persons whom we have herein found to have been discriminatorily discharged before October 12 20 At least one of the employees listed, J. Piana, had occasional supervisory duties, and therefore was not within the unit.21 The number of employees 10 Board Exhibit 6. 20 These are warren and Thomas Billadeau , Earl Guimond, and Stanley Spillane. 21 Frank Jordan , another employee on the list, was shown to have had some supervisory duties in March 1937 but it is not clear whether he did later. 1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the appropriate unit on October 12, 1937, thus totaled 434, and 218 were needed for a majority. Two hundred ninety-five United membership cards were introduced in evidence 22 and Salvatore Camelio, regional director for the United, in charge of the New England District, testified that they had been signed individually by the respondent's employees.23 Twelve were duplicates, and the names on 36 others did not correspond with names on the list of employees in evidence or of persons herein ordered reinstated.24 Of the 247 remaining cards, 37 were not signed on the line at the bottom designated "Signature of Applicant," although, in common with all the other cards, they bore names at the top at the place designated "Name." 25 If none of these 37 cards are counted, the union membership proved by counsel for the Board, including the 2 Billadeaus, whose cards were not available at the hearing, amounted to only 212, which it will be, recalled, would be 6 short of a majority. Camelio testified that some applicants simply neglected to sign the cards both at the top and at the bottom, and that the single signatures were in all cases genuine and sufficient. However, five such cards had duplicates with signatures in clearly different handwritings, and on several cards signed at the top and bottom the two signatures did not correspond, indicating that this testimony of Camelio's was not entirely accurate. There were numerous other discrepancies in the testimony concerning the cards which, though minor, by their cumulative effect cast doubt upon the entire evidence concerning the representation by the Union of a majority of the em- ployees in the appropriate unit. We shall, therefore, dismiss the portion of the complaint which alleges that the respondent refused to bargain with the Union. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III A and B, 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. 22 The 295 cards included Guimond and Stanley Spillane ' s, but not those of the Billadeaus. 23 The respondent refused to examine any of the cards , or to cross -examine witnesses in regard thereto. 24 Some of those names were similar to names on the pay roll, but not sufficiently so to be deemed to designate the same persons in the absence of specific testimony to that effect. Other names represented employees of the respondent on dates other than October 12. 2, The 37 mentioned were in addition to 4 similar cards which were duplicates of cards signed at both places. PANTHER-PANCO RUBBER CO., INC., ET AL. V. THE REMEDY 1281 Having found that the respondent has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. The notices posted by the respondent with respect to the "yellow dog" contract were not only inadequate, but misleading, since they stated merely that the wording of the contract was improper under the Act, thereby leaving an implication that it was not illegal in substance. In order to free the employees of any misconception as to their right to self-organization caused by the making of the con- tract, we shall order the respondent to inform in writing each em- ployee who signed the contract that it was entered into pursuant to unfair labor practices within the meaning of the Act and is in- valid, and that the employees are free to join and assist any labor organization of their own choosing. Since the respondent discriminated against Warren Billadeau, Thomas Billadeau, Earl Guimond, and Stanley Spillane in regard to their hire and tenure of employment, by discharging them because of their union activities, we shall order the respondent to offer them immediate and full reinstatement, and to make them whole for any loss of pay they have suffered by reason of their respective dis- charges by payment to each of them of a sum equal to the amount which he normally would have earned as wages from the date of his discharge to the date of such offer of reinstatement, less his net earnings 26 during said period. VI. THE QUESTION CONCERNING REPRESENTATION On October 13, 1937, and on several occasions thereafter the Union informed the respondent that it had been designated by a majority of the employees as their representative for collective bargaining and demanded that the respondent bargain with it as the employees' exclusive representative. The respondent refused, its representatives stating that it would not recognize the Union as such representative unless certified as such by the Board. 20 By "net earnings" is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere See Matter of Crossett 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 govern- ment or governments which supplied the funds for said work -relief projects. 1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that a question has arisen concerning the representation of employees of the respondent. VII. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the respondent described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. VIII. THE DETERMINATION OF REPRESENTATIVES We find that the question concerning representation which has arisen can best be resolved by means of an election by secret ballot. We will not at this time fix a date for holding the election, but will delay it until such time as we are satisfied that the effects of the respondent's unfair labor practices have been dissipated sufficiently to permit a free choice of representatives. At the time we direct such election we will determine the pay-roll date to be used in ascertaining the eligibility of the employees in the appropriate unit t 7o vote. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. United Rubber Workers of America, and United Rubber Work- ers of America, Local No. 156, are labor organizations within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to. the hire and tenure of employ- ment of Warren Billadeau, Thomas Billadeau, Earl Guimond, and Stanley Spillane, and thereby discouraging membership in a labor organization, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 3. The respondent, by interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, has engaged in and is engaging in unfair labor prac- tices, 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 (1) or (3) of the Act, with respect to the PANTHER-PANCO RUBBER CO., INC., ET AL. 1283 discharge or refusal of reinstatement of Paul Stepankos, Simon Kanevitch, Arthur Spillane, and Manuel Travers. 6. The respondent has not engaged in unfair labor practices within the meaning of Section 8 (5) of the Act. 7. A question affecting commerce has arisen concerning the rep- resentation of employees of the respondent, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 8. The production and maintenance employees of the respondent at its Stoughton plant, excluding clerical employees, executives, foremen, subforemen, and other supervisory employees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) 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 re- spondent, Panther-Panto Rubber Co., Inc., and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in United Rubber Workers of America, Local No. 156, or any other labor organization of its em- ployees, by discharging or refusing to reinstate employees, or other- wise discriminating in regard to their hire or tenure of employment or any term or condition of their employment or by threats of such discrimination ; (b) Requesting or requiring any employee, as a condition precedent to employment, continuance of employment, or an increase in pay, or otherwise, to enter into a contract not to join or to remain a member of a labor organization, or otherwise limiting him in the exercise of the rights guaranteed in Section 7 of the National Labor Relations Act; (c) In any other manner interfering with, restraining, or coerc- ing its employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted 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) Personally inform, in writing, each employee who signed the contract not to join a union or to take part in or support any strike, that it was entered into pursuant to unfair labor practices, within 1284 DECISIONS Or, NATIONAL LABOR RELATIONS BOARD the meaning of the Act and is invalid, and that the respondent's employees are free to join and assist any labor organization of their own choosing ; (b) Offer to Warren Billadeau, Thomas Billadeau, Earl Guimond, and Stanley Spillane immediate and full reinstatement to their former positions, without prejudice to their seniority and other rights and privileges; (c) Make whole Warren Billadeau, Thomas Billadeau, Earl Guimond, and Stanley Spillane for any loss of pay they have suffered by reason of the respondent's discrimination in regard to their hire and tenure of employment, by payment to each of them of a sum of money equal to that which he would normally have earned as wages during the period from the date of such discrimination against him to the date of the offer of reinstatement, less his net earnings 27 during such period, deducting, however, from the amount otherwise due to each of the said employees, monies received by said employee during said period for work performed upon Federal, State, county, munici- pal or other work-relief projects, and pay over the amount so de- ducted 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; (d) Immediately post, and keep posted for a period of at least sixty (60) consecutive days from the date of posting, in conspicuous places throughout its Stoughton plant, notices to its employees, stat- ing (1) that the respondent will cease and desist as aforesaid, and (2) that the respondent's employees are free to join and assist any labor organization for the purposes of collective bargaining with the respondent; (e) Notify the Regional Director for the First Region in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply therewith. AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dimissed in so far as it alleges that the respondent, by discharging or refusing to reinstate Paul Stepankos, Simon Kanevitch, Arthur Spillane, and Manuel Travers, and by refusing to bargain collectively with the Union, has engaged in and is engaging in unfair labor prac- tices within the ineaning of Section 8 (1), (3), and (5) of the Act. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, and pursuant to Article III, Section 8, of National Labor Rela- tions Board Rules and Regulations-Series 1, as amended, it is hereby 21 See footnote 20, supra. PANTHER-PANCO RUBBER CO., INC., ET AL . 1285 DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for collective bargaining with Panther- Panco Rubber Co., Inc., Stoughton, Massachusetts, an election by secret ballot shall be conducted at such time as the Board shall in the future direct, under the direction and supervision of the Regional Director for the First Region, acting in this matter as agent for the Board, and subject to Article III, Section 9, of said Rules and Regu- lations, among the production and maintenance employees employed by the respondent at its Stoughton plant during a period or at a time to be determined by the Board in the future, excluding clerical em- ployees, executives, foremen, subforemen, and other supervisory employees, to determine whether or not they desire to be represented by United Rubber Workers of America, Local No. 156, for the purposes of collective bargaining. 164275-39-vol xi--82