Pilot Radio Corporation

In the Matter of PILOT RADIO CORPORATION and UNITED ELECTRICAL & RADIO WORKERS OF AMERICA In the Matter of PILOT RADIO CORPORATION and UNITED ELECTRICAL & RADIO WORKERS OF AMERICA, C. I. 0. Cases Nos. C-542 and R-742, respectively.Decided August 0/a., 1939 Radio Manufacturing Industry-Interference, Restraint, and Coercion: em- ployer's favoring and assisting one of two rival labor organizations ; permit- ting favored organization use of company time and property for organizational campaign under circumstances showing employer's desire that employees join favored organization and not join rival organization ; absence of attempt by rival organization to obtain similar privileges ; statements by foremen showing employer's preference for favored organization and hostility towards rival organization ; foremen's "personal opinions" expressed in reply to inquiries by employees concerning two rival labor organizations ; employer's calling of and participating in meeting on company property of all employees to approve proposed contract with organization assisted by unfair labor practices and to assist -organization in obtaining members; ' employer's promise to employees to enter into contract with favored organization conferring benefits , including a general wage increase, upon all employees if employees would become or re- main members of favored organization ; execution of contract with favored labor organization as part of campaign of illegal assistance to such organi- zation-Remedial Order: special form of: employer to withhold recognition of favored organization as representative of any employees until after final action by Board upon petition ; employer to withhold recognition of favored organiza- tion as exclusive representative of any of its employees unless and until cer- tified by Board or unless and until, after final action by Board upon petition, it is duly designated by majority of employees in an appropriate unit- Evidence : statements by official of favored labor organization deemed, in view of circumstances, to have been made at instance and in interest of employer- Discrimination : requiring membership in labor organization as a condition of employment in absence of agreement to make such requirement , or where agreement to make such requirement is with an assisted labor organization- Contract : closed or preferential shop, with assisted organization ; executed as part of employer's campaign of assistance to favored organization ; employer ordered to cease giving effect to ; not a bar to investigation of representatives under circumstances-Investigation of Representatives: controversy concerning representation : rival labor organizations , each claiming to represent majority in substantially overlapping bargaining units ; lack of proof of majority rep- resentation ; claim of organization receiving employer 's assistance ; contract granting exclusive recognition to assisted organization , contract made subse- quent to commencement of representation proceeding , no bar to-Unit Appro- priate for Collective Bargaining : production and maintenance employees ex- cluding executives , foremen, supervisors , servicemen, clerical employees, and 14 N. L. R. B., No. 83. 1084 PILOT RADIO CORPORATION 1085 employees in engineering department ; porters; carpenters , and employees in shipping department , toolroom, and stockroom among those included ; unit covered by collective agreement with assisted labor organization not indicative of unit preferred by employees-Election : ordered ; time for and eligibility date to be fixed after effects of unfair labor practices dissipated. Mr. Lee Loevvnger, for the Board. Mr. Sydney M. Heimann, of NewYork City, for the respondent. Mr. William Karlin, Mr. Leo Greenfield, of New York City, and Mr. Isaac Lobe Straus, of Baltimore, Md., for Local 9-1010.- Mr. Frank Sch.einer, of New York City, for the United. Mr. George Tntrite, of counsel to the Board. DECISION ORDER AND' DIRECTION OF ELECTION STATEMENT OF THE CASE On June 30, 1937, United Electrical -& -Radio Workers of America, herein called the United,' filed a charge with the Regional Director for the Second Region (New York City), and on October 7, 1937, filed an amended charge, alleging that Pilot Radio Corporation, New York City, herein called the respondent, had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On July 21, 1937, the United filed with the Regional Director a petition alleging that a question affecting commerce had arisen con- cerning the representation of employees of the respondent and re- questing an investigation and certification of representatives pursuant to Section 9 (c) of the Act. On August 31, 1937, the Board, acting pursuant to Section 9 (c) of the Act, and Article III,' Section 3, Article III, 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 and authorized the Regional Director to conduct it and to provide' for an appropriate hearing upon due notice, and further ordered that for the purposes of hearing the two cases be consolidated and that one record of the hearing be made. A notice of a hearing to be held upon the petition, accompanied by a copy of the petition, was duly served upon the respondent, upon the United, and upon Radio Union, Local B-1010 of the International 1 At times referred to in the record as the "United ," the "U. E. R. W. A.," and the "C. I. O." 1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brotherhood of Electrical Workers,2 herein called Local B-1010, a labor organization claiming to represent employees directly affected by the investigation. Thereafter upon the charges and amended charges filed the Board, by the Regional Director, issued its complaint dated October 15, 1937, against 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) and Section 2 (6) and (7) of the Act. A copy of the complaint, accompanied by notice of hearing and the amended charge, was duly served upon the respondent, upon the United, and upon International Brotherhood of Electrical Workers, the labor organization with which Local B-1010 is affiliated. Local B-1010 has acknowledged service of a copy of the complaint. At the hearing the complaint was amended to allege that the respondent also had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (3) and Section 2 (6) and (7) of the Act. On October 28, 1937, the respondent filed with the Regional Director motions to dismiss the complaint and the amended charge, for a bill of particulars, and pending the disposition thereof, to extend the respondent's time to answer the complaint. In its motion to dismiss the respondent set forth as grounds therefor that the complaint, and amended charge failed to contain a clear and concise statement of the facts constituting the alleged unfair labor practices; failed to state the names of the individuals involved or the time or place of occur- rence of the alleged unfair labor practices; and that these proceedings were in derogation of the respondent's constitutional rights in certain respects. On November 5, 1937, the Board filed herein and duly served upon the respondent its answer to the respondent's request for a bill of particulars, wherein it specified various particulars concern- ing the occurrences and persons involved in the allegations set forth in the complaint. At the hearing the Trial Examiner denied the respondent's above motions, and a motion for a further bill of par- ticulars made by the respondent and joined in by Local B-1010. These rulings of the Trial Examiner are hereby affirmed. With respect to the unfair labor practices the complaint as amended, so far as is here material, alleged in substance that the respondent: (a) urged, persuaded, and warned its employees to refrain from becoming or remaining members of the United; (b) threatened said employees with discharge and other reprisals if they became or remained mem- bers thereof; (c) employed organizers for the purpose of recruiting membership for a rival labor organization known as the International 2 At times referred to in the record as "Radio Factory Workers Union , Local B-1010," "International Brotherhood of Electrical Workers," "I . B. E. W.," and "A. F. of L." PILOT RADIO CORPORATION 1087 Brotherhood of Electrical Workers;3 (d) offered to contract with said labor organization for an increase in its employees' salaries in order to persuade its employees to join said labor organization; (e) entered into a contract with said labor organization as the exclusive repre- sentative of the respondent's employees, although said labor organiza- tion did not at the time the contract was made represent a majority of said employees; (f) required membership in said labor organiza- tion as a term or condition of the employment of its employees and discriminated in regard to the hiring of employees by favoring per- sons who were members of said labor organization; and (g) in other ways interfered with, coerced, and intimidated "its employees in their exercise of a free choice of representatives for the purposes of collec- tive bargaining. The answer of the Board to the respondent's request for a bill of particulars set forth, among other things, with respect to the allegation of the complaint, as amended, that the respondent urged, persuaded, and warned its employees to refrain from becoming or re- maining members of the United; that certain named employees had been hired by the respondent to influence their fellow employees not to join the United; that their urging, persuading and warning began about June 16 and extended to about July 20, 1937; and that these activ- ities occurred in the plant during working hours at the normal place of work of the employees. The said answer further alleged with respect to said urging, persuading, and warning that the respondent through certain named foremen urged, persuaded, and warned its employees to refrain from becoming or remaining members of the United, and that this occurred in the plant during working hours at the normal place of work of the employees. The said answer also set forth that the persons employed by the respondent for the purpose of recruiting membership for the International Brotherhood of Electrical Workers 4 as alleged in the complaint, as amended, acted as organizers in the respondent's plant from June 21 to on or about July 20, 1937; that the organizational activities engaged in by them consisted of open advocacy of membership in Local B-1010 upon the floor of the re- spondent's plant during working hours in plain sight of foremen and supervisors of the respondent with both the tacit and the explicit consent and support of said foremen and supervisors. On November 8, 1937, the respondent and Local B-1010 filed their answers denying the material averments of the complaint. The an- swer of the respondent admitted that the respondent entered into a 8 While the complaint, the Board's answer to the request for a bill of particulars, and the respondent 's answer all refer to the International Brotherhood of Electrical workers as the rival labor organization , it is clear that all parties have understood the reference to be to Local B-1010, the labor organization affiliated with the International Brotherhood of Electrical Workers. The record shows no prejudice from this misdescription. The answer of Local B-1010 clarified this reference. 'See footnote 3. 1088 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD contract with the International Brotherhood of Electrical Workers as the exclusive representative of certain of the respondent's employees, and alleged that the respondent had done so upon proof that said labor organization represented a majority of said employees. The answer of Local B-1010 alleged that Local B-1010 was and is the sole col- lective bargaining, agency of the respondent's production employees; that the United was not nor is it'such agency; that on July 20,-1937, a substantial majority of said employees approved a contract in their behalf respecting wages and other working conditions and authorized the representative of Local B-1010 to execute said contract, which was done on said July 20, 1937; and that said contract was a valid, subsisting contract which Local B-1010 was entitled to have per- formed. Local B-1010 also filed an answer to the petition, in which it in substance repeated its foregoing affirmative allegations, and alleged that by reason thereof no question had arisen concerning rep- resentation of the respondent's production employees. Pursuant to notice of continuance of hearing, a hearing was held at New York City from November 8 to December 4, 1937, before Wil- liam Seagle, the Trial Examiner duly designated by the Board. A motion by Local B-1010 for leave to intervene was granted by the Trial Examiner. The Board, the respondent, the United, and Local B-1010 were represented by counsel and participated 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 Board, the respondent, and Local B-1010. During the course of the hearing the Trial Examiner made various rulings including rulings on motions and on objections to the admission of evidence. He denied several motions of Local B-1010 and the respondent to dismiss the complaint, as amended, and the petition. The Board has reviewed the rulings of the Trial Examiner and, except where inconsistent with the findings and order below, finds that no prejudicial errors were com- mitted. The rulings thus limited are hereby affirmed. After the close of the hearing Local B-1010 filed a brief with the Trial Examiner. On or about April 15, 1938, the Trial Examiner filed his Interme- diate Report, a copy of which was duly served upon the respondent, upon the United, and upon Local B-1010, in which he found that the respondent had engaged in and was engaging in unfair labor prac- tices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act. He recommended that the respondent cease and desist from such practices, and that it take cer- tain affirmative action to remedy the situation brought about by the practices found. Exceptions to the Intermediate Report were filed by the respondent and by Local B-1010 on April 26, 1938. On May 24, 5 See footnote 3. PILOT RADIO CORPORATION 1089 1938, it hearing was held pursuant to notice before the Board in Wash- ington, D. C., for the purpose of oral argument. The respondent, Local B-1010, and the United were represented by counsel and par- ticipated in the hearing. The respondent submitted to the Board a memorandum in support of its position, and Local B-1010 did like- wise.6 Local B-1010 moved in accordance with its written motion theretofore filed that the record be reopened to take evidence as to the existence and validity of a certain collective agreement made February 2811938) 7 by the respondent and Local B-1010, and the circumstances surrounding the same, and to take evidence concerning a receipt dated Julie 17, 1937, showing the purchase of a ballot box by one Glick. For reasons hereinafter set forth this motion is denied. Since the hearing a certain report, more particularly described below, made by an agent of the Board pursuant to a stipulation and agreement of the parties at the hearing has been submitted to the Trial Examiner and the Board as part of the record herein." Also, a certain statement relating to plant production and employment, which the respondent undertook at the hearing to submit, has been furnished as part of the record herein. Said report and statement hereby are incorporated into the record herein. The Board has considered the Exceptions filed by the respondent and by Local B-1010, and, in so far as they are inconsistent with the findings, conclusions, and order set forth below, finds them to be with- out merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Pilot Radio Corporation is a New York corporation , having its office and plant in the City of New York. It is engaged in the manufacture and sale of " radio receiving sets and radio parts. The principal mate- rials which the respondent uses in the course of manufacture at its New York City plant are brass , copper, bronze, and steel . It also uses certain parts, as cabinets, resistors, condensers, and hardware. During 1936, 65 per cent of the materials and parts so used by the respondent were brought to the plant from outside the State of New York. Approxi- mately 85 per cent of the total amount of the finished products manu- 8 The memorandum of Local B-1010 was submitted by its attorney herein as attorney for the International Brotherhood of Electrical Workers and Local B-1010. The attorney for the parent labor organization also subscribed his name to this memorandum. It is unclear whether it was intended thereby that the International Brotherhood of Electrical Workers appear herein as a party interested in the oral argument upon the record. 7 This agreement apparently expired March 1, 1939. 8 The said report is contained in three letters from J. J. Blank to the Trial Examiner, dated respectively January 20, 21, and 22, 1938. 1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD factured at the plant are sold to customers in foreign countries to be delivered to them in said foreign countries f. o. b. New York City piers. Thus the bulk of the respondent's products are shipped from the plant to customers in foreign countries. About 1 per cent of the total finished products are sold and shipped to customers located in States other than the State of New York, f. o. b. the respondent's plant. In 1937 the total -value of the respondent's manufactured products was more than $1,000,000. The respondent employs from 150 to 375 workers who are directly engaged in the manufacture of its products, and about 55 other employees. II. THE ORGANIZATIONS INVOLVED United Electrical & Radio Workers of America is a labor organiza- tion affiliated with the Committee for Industrial Organization, admit- ting to membership all employees of the respondent except supervisory and clerical employees. Radio Union, Local B-1010 of the International Brotherhood of Electrical Workers, is a labor organization affiliated with the Inter- national Brotherhood of Electrical Workers, also a labor organization, which is affiliated with the American Federation of Labor. All em- ployees of the respondent directly engaged in production are eligible- for membership, excluding certain employees such as toolroom workers, porters, and foremen. III. THE UNFAIR LABOR PRACTICES A. Background 61 the unfair labor practices Beginning in 1934 and continuing until June 1937 several attempts to organize the respondent's production workers were made by Radio Factory Workers Union Local 18609, a Federal Labor Union affiliated with the American Federation of Labor, and by its successor, Local B-1010. These attempts were unsuccessful, largely because of the respondent's opposition to unionization. Although the respondent's hostility to organization by Local B-1010 evidently ceased with the sustaining of the constitutionality of the Act by the Supreme Court of the United States in April 1937, Local B-1010, nevertheless, by June 21, 1937, had enrolled not more than 25 to 50 members, if that many, among some 200 production workers then employed by the respondent. On or about June 1, 1937, the United began a membership campaign to enlist members among the respondent's employees. It engaged in various organizational activities outside the plant. These efforts were known to the respondent. PILOT RADIO CORPORATION 1091 B. Interference,- restraint, and coercion In the early part of the week of June 21, 1937, 10 persons were hired by the respondent, all of whom, save possibly one,9 were then members of Local B-1010. One of these persons, one Barnett, was also a paid organizer of the International Brotherhood of Electrical Workers and a member of the executive board of Local B-1010; another, one Katz, was the sister-in-law of another member of the Local's executive board; and a third, one Glick, had on June 7, 1937, been elected by Local B-1010 as its "judge of elections." Two others had previously assisted the local in its organizational activities at various plants. Throughout the week of June 21 the new employees proceeded to carry out plans for organizing the respondent's plant. They solicited fellow workers to join Local B-1010, distributed among them applica- tion cards for membership in that organization, and procured signa- tures thereto. These activities were conducted on the respondent's time and property. We have no doubt, and find, that the respondent's foremen and plant superintendent well knew of the organizational activities in which the new employees engaged, and of their solicitation of memberships for Local B-1010. In the course thereof these em- ployees made frequent trips to the washrooms and freely moved about the plant in a manner never theretofore permitted to employees. Their conduct was observable by the foremen and necessarily must have been known to them, especially since all of the employees were newly hired employees.1° Indeed, some of the plant employees told their foremen that their work was being interfered with by the solici- tation and conduct of the new employees, and these complaints, in turn, were brought to the attention of Gillen, the plant superintendent. Gillen was told that there was "plenty of union activity going [on] on the [assembly] line . . ." At the hearing he admitted that such complaints had been made to him. We also are satisfied, and find, that the respondent's foremen and superintendent acquiesced in and permitted the above-mentioned organizational activities to be conducted in behalf of the Local B-1010 and took no real steps to prevent the use of the respondent's time and 'His name was Victor Cartelli. His relationship to Local B-1010, if any, is not disclosed by the record. 10 One of the foremen testified as follows : A. [Witness ] . . . there was five or six people came in the department at the time and there was a lot of union activity and I can't watch all of those people. Q. You mean the new people? A. The new people who came in at the time. Q. Why did you especially watch the new people? A. Because they were the ones who were causing the commotion. Q. They were the source of all the trouble? A. Yes. 1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD property for such purpose. The activities were open and widespread, and so continued throughout the week of June 21. At the hearing the respondent contended that it sought to curb the activities of the new employees. However, the record does not establish that any real effort was made by the respondent to do so. The evidence goes much further and shows that during the week of June 21 various of the respondent's foremen while on duty assisted Local B-1010 in its campaign for members. Foreman Gold approached one employee and told him that the respondent was trying to organize its plant and that it preferred Local B-1010 to the United. He told another employee who made inquiry about unionization that in his "personal opinion" Local B-1010 was the better of the two labor organizations, adding, "from what the papers are writing up lately it seems that the C. I. 0. has been pretty radical and they have been having a lot of trouble in some of the concerns that they have been working in, whereas the A. F. of L. . . . they have been a much quieter organization, I don't see so many disturbances where they are connected with." Foreman Martin similarly approached an employee and, after asking "how the union organization was getting along" and commenting that the respondent did not care whether the employees joined Local B-1010 or the United, said, "We feel that you fellows would be better off with the A. F. of L.," that the United "would not do things in a quiet way as the A. F. of L. did, [the United] usually had strikes and arrests and people getting hurt and killed ..." Martin had several conversations with other employees in which he expressed as his "own opinion" that Local B-1010 was the preferable organization. Foreman Meyer, upon similar inquiry being made of him by various employees as he walked past their work places, said that it was his "personal opinion" that that union would be the better of the two for the respondent's employees to join, because in the event of a general lay-off at the plant Local B-1010 was in a position more readily to procure employment for them elsewhere among companies it had organized. In June 1937, as heretofore set forth, the United conducted its membership drive among the respondent's employees, a fact of which the respondent was cognizant. In the week of June 21, the same week that the new employees commenced soliciting members for Local B-1010 within the respondent's plant, the United enrolled as members 97 of the respondent's employees. The organizational activ- ities of the United took place outside of the respondent's property. It distributed its organizational leaflets and newspapers and its mem- bership application cards in front of the plant. At the hearing some PILOT RADIO CORPORATION 1093 claim was made by the respondent that the United, like Local B-1010, engaged in organizational activities on the respondent's time and property. The proof does not support this contention. While some membership application cards of the United were found about the plant on the floor, on stairways, and on work benches, these appar- ently were given to the employees outside the plant. In any event there is no showing of the occurrence within the plant proper of organizational activities in behalf of the United, let alone of activ- ities as open and extensive as those of Local B-1010. On June 24 Local B-1010 by written communication to the re- spondent stated that it represented the respondent's employees and requested a conference "for the purpose of collective bargaining and a union agreement relative to' working conditions." On June 25 the first organizational meeting of Local B-1010 for the plant employees was held, at which an employee committee was formed. On June 26 the employee committee and Beedie, International Representative of the International Brotherhood of Electrical Workers and in charge of its organizational work among radio workers, arranged with the respondent for a conference with its president, Goldberg, to take place the following week. Also, on June 26 the United wrote the respondent stating that a majority of the respondent's employees had designated it their bargaining agency and asking that the re- spondent meet with the United "for the purpose of negotiations in regard to wages, hours and working conditions." The United fur- ther sent a telegram on June 26 to the respondent requesting an immediate conference in behalf of the employees and members of the United to discuss "what seems to be flagrant violations of the Wagner Labor Disputes Act by your establishment." The respondent ignored both of these communications of the United. Although other attempts were made in the period between June 10 and 30 to secure a conference or meeting, the United never in fact succeeded in meeting with the respondent. On June 30 Local B-1010, acting through Bee'die and the employee committee, met with the respondent's president. It submitted its requests in the form of a suggested draft agreement between Local B-1010 and the respondent covering wages, hours, and working con- ditions of the respondent's production employees. A discussion of the proposed terms followed and the parties reached an understand- ing upon all of the provisions of a contract except wages. As to this the respondent apparently was willing to grant in effect a general increase of 5 cents an hour but was not quite ready to commit itself. Throughout the conference the respondent clearly recognized and dealt with Local B-1010 as the exclusive representative of the re- 1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent's employees," that is, of the employees in the production departments of the plant excluding certain classifications.12 There is no showing that Local B-1010 acted or purported to act solely for those employees who were its members, or that the respondent negotiated with it on that basis. The representatives of Local B-1010 expressly presented themselves to Goldberg as acting for the re= spondent's employees, without any such limitation, and Goldberg made no serious effort to controvert their representation. Among the terms to which the respondent agreed was one for a preferential shop.13 The respondent at no time made inquiry or sought proof, however, as to whether Local B-1010 had in fact been designated by a majority of the employees. On July 7 the respondent informed Local B-1010 that the pro- visions agreed upon at their June 30 meeting, as well as a general 5 cents an hour wage increase for the production employees, were satisfactory to it, but requested that the execution of a contract em- bodying such terms be postponed pending the approval thereof' by Thompson, its vice president. Thompson was then in Europe. Upon his return he discussed the contract with Beedie and on the afternoon of July 20 gave Beedie his approval. Beedie then requested Thomp- son's permission to hold a meeting at the end of the day in the re- spondent's plant of all employees covered by the agreement, "so that we can have the contract read to them so that they know what the story is and see whether they want to accept it or not.." Thompson consented and upon his instruction the plant superintendent assembled the employees at the close of the workday. The contract was not yet signed. At the meeting which followed employees who were not members of Local B-1010 and had not designated that labor organization their 11 The record shows that in the early part of July the United , in one of its afore- mentioned attempts to obtain a conference with the respondent , was told by an officer of the respondent that a contract was about to be made with another labor organization and that "the question was more or less closed as far as" the respondent was concerned. 19 The agreement of July 20 , 1937, between the respondent and Local B-1010 set forth that Local B-1010 in entering into said agreement acted "for and in behalf of the said Union, and for and in behalf of the Employees , now employed and hereafter employed by the Employer and collectively designated herein as the Employees." Paragraph Twentieth of the agreement provided : This agreement shall apply to the Employees in production departments only, and sball not apply to Engineering, Labratory (sic), Watchmen , Porters, Main- tenance and Tool Room , Time Study Men, Timekeepers , Experimental Workers, Foremen, Supervisors , Assistant Supervisors, Stock room employees , Shipping Room employees , Receiving Department employees, Office, Clerical, and all other non-productive workers. We find the, employees within the classifications set forth in paragraph Twentieth of the agreement, above, to be those whom Local B-1010 claimed to represent exclusively on June 30 and July 20. ' - ' Local B-1010 contended at the hearing that the contract of July 20 was for a closed shop . This contention is dealt with hereinafter . Whether for a closed shop or pref- erential shop, the respondent's agreement thereto necessarily indicated that it purported to deal with Local B-1010 as an exclusive bargaining agency. . PILOT RADIO CORPORATION 1095 bargaining representative, as well as employees who were members, were. among the employees gathered. Thompson and several of the respondent's foremen were present. Thompson spoke a few words announcing that the employees ("you") through their committee and Beedie had agreed with the respondent upon a general increase of 5 cents an hour to all "productive workers." He also read the new wage scale. Beedie then addressed the meeting. Thompson and the foremen remained. Beedie spoke of the "advantages" of affiliation with Local B-1010 and read to the employees the unsigned contract, reiterating that under its terms a 5 cents an hour increase was pro- vided.14 He said that a secret vote would be taken then and there to determine whether the employees approved the contract. Although there is some conflict in the evidence we are satisfied that Beedie went further in his explanation of the purpose of the vote. We find that Beedie also told the employees, in effect, that only if they were ready to accept affiliation with Local B-1010 should they approve the con- tract, that their vote in favor of the contract would determine that they were willing to affiliate themselves with Local B-1010 and their negative vote that they rejected such affiliation because of a pref- erence for another labor organization or any other reason. One em- ployee who was present testified that Beedie stated that the em- ployees were to vote "concerning whether or not they will accept the American Federation of Labor . . . [Beedie] said [an affirmative vote meant] . . . you accept the American Federation of Labor, and [a negative vote] . . . you don't accept the American Fed- eration of Labor." 15 The secretary of Local B-1010 testified that the employees were told that if they "voted no, then so far as Mr. Beedie and Local B-1010 was concerned, Local B-1010 would with- draw out of the situation. . . ." Another employee testified that Beedie said, "if the people would vote yes, they would have the union with that contract . . . and if they voted no, he would with- draw from the whole thing," that "if we have the union, the contract is in." Another employee testified that Beedie stated that by an affirmative vote the employees would approve "the union and the contract." Another testified, "If we joined the A. F. of L., this contract was all right." A ballot was thereupon taken and tallied. Most of the employees, instead of voting "yes" or "no" voted "A. F. of L." or "C. I. 0.11 The tally showed 158 votes in favor of the contract and affiliation with Local B-1010 and 25 against. Immediately after the vote the con- 14 Pursuant to the respondent's request the contract in terms provided for a lower wage scale than that agreed upon . However, the employees were subsequently paid in accordance with the increase agreed upon. 15 At this meeting Local B-1010 was referred to as the "A . F. of L.," the "American Federation of Labor," and "Local B-1010"; the United as "C. I. 0." 190935-40-vol. 14-70 1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tract was signed. Since then the respondent has operated its plant on the assumption that all employees, old and new, are expected to be members of Local B-1010, and the employees understand that such requirement is a condition of their employment. The foregoing facts, considered in the light of the entire record, show that beginning with June 21, 1937, the respondent, by various acts of open favoritism and assistance to Local B-1010 and dis- couragement of membership in and hostility toward the United, in- terfered with, restrained, and coerced the plant employees in the exercise of rights secured by the Act. As above set forth, in the week of June 21 the respondent permitted the members of Local B-1010 whom it had newly hired to use its time and property for organizational activities in behalf of Local B-1010. While under certain circumstances a grant by an employer to a labor organiza- tion of its time and property for organizational purposes has been held not to violate the Act,16 the question in all cases is whether by such grant the employer has in fact infringed upon self-organization or collective bargaining.17 Here, the respondent, by permitting Local B-1010 such use, plainly interfered with, restrained, and coerced the plant employees in the exercise of their right to form, join, and assist what labor organizations they wished. The manner in which the new employees were permitted to avail themselves of the respondent's grant, as well as the grant itself, made manifest the respondent's intent and desire that the plant employees join Local B-1010 and, accordingly, that they should not affiliate themselves with the United or any other labor organization. This would be the natural inter- pretation which employees would place upon an employer's acts where a single labor organization is permitted the employer's time and property to conduct an organizing campaign. It certainly was the clear meaning of the respondent's acquiescence in Local B-1010's organizational activities under the circumstances here presented. The fact that after years of opposition to unionization and at a time when the United was seeking members among the plant em- ployees the respondent opened its doors to Local B-1010 was of significance to the employees, as shown by their inquiries of fore- men. The report to the Trial Examiner and the Board observes that after June an apparent defection of many employees from the ranks of the United to Local B-1010 occurred. We do not consider it of relevance that the United did not seek, and hence was not denied, 16 Matter of Godchaux Sugars, Inc. and Sugar Mill Workers' Union, Locals No . 21177 and No . 1288, Affiliated with the American Federation of Labor, 12 N. L. It . B. 568; Matter of Aeolian-American Corporation and Amalgamated Piano Workers of America, 8 N. L. R . B. 1043, 1048. "Matter of Godchaux Sugars, Inc. and Sugar Mill Workers' Union, Locals No. 21177 and No. 2188, Affiliated with the American Federation of Labor, 12 N. L. R. B. 568. PILOT RADIO CORPORATION 1097 .the use of the respondent's property.1' In any event, we are satis- fied, especially in view of the respondent's treatment of the United's ,demands for collective bargaining, that had the United requested the use of the respondent's time and property 'for. organizational pur- poses, its request would have been forthwith.denied.19 This was ap- parent to and understood by the United and the plant employees. The respondent's acts of favoritism and assistance to Local B-1010 extended beyond its grant of time and property. During the course of Local B-1010's campaign for members the respondent through its foremen made statements to employees, heretofore set forth, which in substance told the employees that the respondent preferred Local B-1010 to the United and that Local B-1010 was the better of the two labor organizations and disparaged the United. These statements were not intended to be, nor were they, mere comments or expressions of opinion, personal or otherwise. They expressed unmistakably the respondent's hostility to the plant employees join- ing the United and its desire that they become members of Local B-1010. The aim of these statements was to persuade and warn the employees against designating the United their collective bar- gaining representative. Taken in connection with the surrounding circumstances and the economic power of the respondent 20 their effect was intimidatory. That in some instances the statements of the foremen occurred in response to inquiries by employees does not detract from the essentially coercive character and effect of the statements. The respondent's action regarding the July 20 meeting at the plant likewise constituted in several respects an interference with and coercion of the plant employees, within the meaning of the Act. By instructing all employees irrespective of whether they were members of Local B-1010 to be present at a meeting involving ap- proval of a collective agreement with Local B-1010 and membership in it, by permitting the use of its property for such a meeting, and by attending and participating in the meeting through its officer and supervisors, the respondent indicated again to all the employees its preference for Local B-1010 and its desire that all join that labor organization. We do not conclude that a meeting on an employer's 18 Compare our decision under Section 8 (2) of the Act in Matter of Servel, Inc. and United Electrical, Radio and Machine Workers of America, Local No. 1002, 11 N. L. R. B. 1295. 10 Compare our decision under Section 8 (2) of the Act in Matter of Swift & Company, a Corporation and Amalgamated Meat Cutters and Butcher Workmen of North America, Local No . 61,1, and United Packing House Workers Local Industrial - Union No. 300, 7 N. L. R. B. 269, order enforced as modified in Swift & Company v. National Labor Relations Board, 106 F. ( 2d) 87 (C. C. A. 10th). 20 Virginia Ferry Corporation v. National Labor Relations Board, 101 F. (2d) :103, 105-106 (C. C. A. 4th) ; National Labor Relations Board v. Fansteel Metallurgical Cor- poration, 59 S. Ct. 490, 494; Virginian Ry. Co. v. System Federation No. 40, etc., 84 F. (2d) 641 (C. C. A. 4th), 300 U. S. 515. 1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD property for the single purpose of submitting a collective agreement to employees for approval pursuant to a request by a labor organi- zation representing a majority of the employees in an appropriate unit and unassisted by unfair labor practices necessarily contra- venes the Act. But here Local B-1010, apart from any question of majority representation, had been assisted in its organizational ac- tivities by the illegal acts of the respondent in persuading and coercing the employees into joining that organization. The meet- ing was the culmination of a, course of conduct pursued by the re- spondent involving, on the one hand, assistance to Local B-1010, as well as ready dealings with and recognition of it as an exclusive collective bargaining agency, and, on the other, hostility toward the United and toward membership in the United, and complete ignor- ing of its requests for negotiations. Moreover, the submission to the employees at the meeting of the proposition which they were asked to vote upon and the taking of the ballot thereon constituted, under the circumstances, a violation of the Act. Beedie's statement in which he conditioned affirmation of the contract upon a willingness of the employees to become or remain members of Local B-1010 must be deemed to have been made in the interest of the respondent, as well as of Local B-1010. The employees as reasonable men necessarily must have so believed and understood from such facts as the employer's assembling all employees, members and non-members of Local B-1010 alike, at a meeting on its property, Thompson's and the foremen's attendance at that meeting, and Thompson's speech, as well as from the entire history of the relations between the respondent and Local B-1010 since June 21. In substance and effect the employees were informed that the respondent was ready and willing to make a contract with Local B--1010 conferring valuable benefits upon the employees if the employees were willing not merely to approve the contract but to join or remain members of Local B-1010. The attendance of Thompson and the foremen and the other circum- stances above mentioned under which the offer was made removed any doubt as to what the respondent desired the employees to do. In sum, the meeting was concerned not merely with ascertaining the views of the employees upon the contract-indeed as to that the evidence amply shows the employees' desire for an increase in wages-but with recruiting members for Local B-1010 under the general sponsorship of the respondent and Local B-1010.21 Further, the contract of July 20, 1937, with Local B-1010 was an integral part of, in fact the culmination of, the respondent's campaign to interfere with, restrain, and coerce its employees in the exercise of 21 At the hearing Thompson testified that he was not present at the meeting when the actual balloting occurred. We do not see that this circumstance altered the situation which obtained. PILOT RADIO CORPORATION 1099 their right to self-organization. The United had, on June 26, stated to the respondent that it represented a majority of the employees and had on numerous occasions between June 26 and the signing of the contract requested a conference for collective bargaining. The re- spondent, however; failed to grant the requests, and completely ignored written and telegraphic communications of the United. On the other hand, having assisted Local B-1010 in the manner set forth above, the respondent hastened to deal with it as exclusive representa- tive of the employees without making any inquiry whatever as to whether Local B-1010 in fact represented a majority of the employees. It is plain that the contract was made with the purpose, and had the effect, of assisting Local B-1010 to consolidate its gains obtained through the efforts of the respondent and to become established in the plant as the favored and recognized labor organization. The pleadings and the evidence raise the question whether the re- spondent employed the nine members of Local B-1010, or any of them, on or about June 21, 1937, pursuant to any agreement, understanding, or arrangement with Local B-1010 that these persons were to be so employed in order to organize the respondent's plant for Local B-1010. Glick, one of the nine and a principal witness at the hearing, testified that on June 17, 1937, Beedie asked him to leave temporarily the posi- tion which he then had and to undertake the organizing of the re- spondent's employees; that on June 21 Beedie informed him that an arrangement had been made with the respondent's president, Gold- berg, to have Glick hired for that purpose ; and that on June 22 the secretary of Local B-1010, Emil Katz, told him that the respondent was cooperating with Local B-1010 in organizing its employees and that he, Glick, was to devote all of his time in the plant to soliciting memberships for Local B-1010. Glick also testified that on June 22 one Eisner, a clerk who assisted the respondent's plant superintendent, Gillen, in the hiring of employees, told him that he, Glick, had been employed to organize the plant workers. However, Glick also testified that he concealed from Gillen the purpose for which he had sought employment. On the other hand several witnesses testified that Glick told them that he was unemployed on June 17 and that he previously had been laid off from his former position. Beedie denied at the hearing ever having told Glick of any arrangement with the respond- ent's president for hiring Glick, and Katz testified that on June 22 he merely told Glick to be cautious when organizing the respondent's employees and to keep such activities hidden from the management. Eisner did not testify. Officials of Local B-1010 testified that in the middle of June they heard from one of their members then employed by the respondent that the respondent was proposing to hire addi- tional production workers at its plant, that Local B-1010 then notified 1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD some 30 or 40 of its members of the available employment and sent them to apply for the jobs, and that some 10 of these, including Glick, were hired. Irrespective of what weight is to be accorded the above testimony of Glick or the denials of the Local B-1010 officials and testimony of other witnesses in that regard, the above-mentioned facts and circumstances concerning the hiring of the members of Local B-1010, as well as the manner in which all of these persons were permitted to carry on their organizational activities, tend strongly to show that they were hired and that these organizational activities occurred by prearrangement of Local B-1010 with the respondent.22 On the other hand if Glick's testimony be. disregarded it is not an unreasonable inference to be drawn from the evidence that Local B-1010, after learning of the respondent's intention to increase its force, proceeded upon its own initiative, without any agreement, understanding, or arrangement with the respondent concerning the same, to have its members make application for the available positions in order to organize the respondent's plant. The fact that the re- spondent thereafter favored and assisted Local B-1010 in its aim, while a circumstance to be considered, would not necessarily establish a prearranged organizational campaign. We feel that a decision upon the issue here presented must rest finally upon what credence is to be given Glick's testimony. We have considered Glick's testimony, not merely that above set forth but its entirety, and conclude that Glick is not a credible witness. He was hostile to Local B-1010. Portions of his testimony not directly related to the alleged arrangement with the respondent, such as his explanation of the circumstances surrounding his execution of the affidavit referred to in the record and his description of the nature and extent of his participation in the organizational activities at the plant, impress us as self-contradictory or wholly implausible. Fur- thermore, it is unlikely that certain of his testimony, having consider- able materiality, if true, should have remained uncorroborated. in important respects by other witnesses for the Board at the hearing who were in a position to have knowledge of the truth thereof. These and other circumstances cast doubt upon the reliability of Glick's testi- mony as a whole, and we are unable to accept his version as to what he allegedly was told by Beedie, Katz, and Eisner, mentioned above. As to the statements attributed to Beedie and Katz concerning the respondent's alleged complicity, these were not admissions of the respondent but alleged admissions of officials of Local B-1010, admis- sions which they expressly denied having made. We do not conclude, 22 The employment of seven of the nine new employees was terminated within 2 weeks of their being hired, for various alleged reasons or for no reason. PILOT RADIO CORPORATION 1101 upon the record before us, that the respondent had any previous agree- ment, understanding, or arrangement with Local B-1010 for the employment of the nine new employees, or any of them, to engage in organizational activities on behalf of Local B-1010. The complaint in so far as it so alleges will be dismissed. In view of this finding the evidence offered by Local B-1010 in its motion to reopen with reference to the activity of Glick becomes superfluous. The complaint also alleges that the respondent entered into a con- tract with Local B-1010 although said Local did not at that time represent a majority of the employees. As set forth above, the mem- bership in Local B-1010 at the time the contract was made did not represent a free choice of the employees. The complaint, however, raises the further issue as to whether, aside from the question of coercion in obtaining its membership, Local B-1010 in any event had been designated by a majority of the employees. At the hearing considerable evidence was introduced concerning the number of the respondent's employees who had designated Local B-1010 as their bargaining agency. In addition subsequent to the hearing a certain report, referred to above, relating to the matter of representation was submitted to the Trial Examiner and the Board as part of the record herein, pursuant to a stipulation and agreement of the Board, the respondent, Local B-1010, and the United. However, assuming that the employees within the classifications covered by the agreement of July 20, in whose behalf Local B-1010 acted and was accorded exclu- sive recognition, constituted an appropriate bargaining unit, within the meaning of the Act, we still are unable upon the evidence adduced and the statements contained in said report to determine whether on June 30 and July 20, 1937, or on either of these dates Local B-1010 had as its members or adherents a majority of the respondent's em- ployees within such unit. The precise number of persons employed by the respondent on June 30 and July 20 within this unit does not satis- factorily appear. The secretary of Local B-1010 testified that there were "approximately 200" persons employed as "production workers" by the respondent on June 26, 1937. The report states that "The number of persons employed" by the respondent on June 26 was 200, and the number of "persons employed in the production department" on July 20 was 246. We are not convinced that these statements relate to the precise number of persons employed in the unit on behalf of which Local B-1010 received exclusive recognition. The record shows that the parties did not agree at the hearing in their use of such terms as "production employees" and "production workers." The data upon which the report is based are not before us. 1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Equally uncertain is the record as it relates to the question of the number of persons employed by the respondent oil June 30 and on July 20, 1937, who on such dates authorized Local B-1010 to act as their sole collective bargaining agent. The proof of such authoriza- tion rests upon certain enrollment and pledge cards of Local B-1010 which the employees signed and which provided that Local B-1010 was designated to act as their collective bargaining representative. The president and secretary of Local B-1010, the principal witnesses who testified on this issue, themselves differed in. their estimates as to the number of such signed cards in the possession of Local B-1010 on various dates.23 The report states that 176 of these cards bear no dates,24 and that 10 bear dates prior to July 20, 1937. Local B-1010's secretary testified that the "cards that I have on file here that are undated, were received prior to July 20th. Those received afterwards bear a stamp affixed by the Union office, just an ordinary date stamp," that all the cards "after July 20th" bear a date. In response to interrogation as to the reason for this the witness said, "Because of the fact that in order to keep our financial records properly, all people who did not join by the 23rd [of July] would have been re- quired . . . to pay an initiation fee . . ." When asked why all of the undated cards had not been dated he testified, "We did not date them, for the reason I have explained, namely that the date stamp was affixed for the purpose of establishing whether or not the individual worker would be required to pay an initiation fee." We do not find persuasive the reason thus advanced as to why all un- dated cards are to be deemed cards executed prior to July 20. The fact that Local B-1010 may have dated its cards in order to fix an initiation fee liability after July 23 does not explain Local B-1010's alleged stamping of all the cards between July 20 and July 23. It is clear that a substantial number of signed cards, dated or undated, were received by Local B-1010 between July 20 and 23, for the un- derstanding of those present at the July 20 meeting in the plant was that by approving the contract on that occasion they were signifying an intent to join Local B-1010. Moreover, the secretary of Local B-1010 was not a disinterested witness, and his estimates of enroll- ment tended to be larger than those of his union associates.21 In any 23Thus, the president testified that prior to June 21 , 1937, Local B-10 1 0 had "maybe ten" signed cards ; the secretary estimated this number as being "Between 25 to 50." The president testified that on June 25 Local B-1010 had "about 90" cards ; the secre- tary "about 100 to 125 ." Similarly , the secretary testified that at Local B-1010's organizational meeting of June 25, "75 to 100" cards were obtained , whereas Beedle testified that the secretary had told him after the meeting that "about thirty" cards had been received at that meeting. 2+ The report indicates that most of the dated cards were signed after July 20, 1937. 25 See footnote 23. PILOT RADIO CORPORATION 1103 event, we find fatal to any contention concerning the number of the respondent's employees designating Local B-1010 their representa- tive the fact that nowhere is it shown or set forth that any or all of Local B-1010's signed enrollment and pledge cards constituted as of June 30 or July 20, 1937, or for that matter as of any other date, designations by persons actually employed by the respondent on such dates, respectively, or that the cards represented operative authori- zations unaffected by the fact that the signers thereof, or some of them, signed other cards designating the United their sole bargain- ing representative. The record shows that the respondent has had considerable fluctuation in the number of persons it employs; also that a substantial number of the respondent's employees signed cards for both unions prior to July 20. The failure of proof to show whether Local B-1010 had been desig- nated on June 30 and July 20 by a majority of the respondent's employees in the unit assumed to be appropriate thus results in part from the incompleteness of the report submitted under the stipu- lation and agreement of the parties. Under these circumstances, and upon the entire record, we shall dismiss the complaint in so far as it alleges that the respondent entered into a contract with a labor organization as the exclusive representative of the respondent's em- ployees although said organization did not then represent a major. ity of said employees. We find that the respondent, by permitting Local B-1010, through the newly hired members of Local B-1010, the use of its time and property for the purpose of recruiting members from among the plant employees during a period when the United was attempting outside the plant to organize these employees, thereby encouraging and intimidating the employees concerning membership in Local B-1010 and persuading and warning them not to become or remain members of the United; by statements to employees encouraging and intimidating them to join Local B-1010 and persuading and warning them not to become or remain members of the United; by calling and holding on its property the July 20 meeting of all em- ployees, including employees who were not members of Local B-1010, at which meeting an officer and supervisors were present, to secure approval of a contract withLocal B-1010 and to assist Local B-1010 in obtaining members, thereby further encouraging and intimidating employees regarding their becoming or remaining members of a labor organization assisted by the respondent, and persuading and coercing them not to become or remain members of the United; by promising in effect to the employees at such meeting in the presence of its officer and supervisors that the respondent would enter into a contract with Local B-1010 conferring valuable benefits, including 1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an increase in wages, upon all employees if such employees approved the contract and assented to joining or remaining members of Local B-1010; by entering into the contract of July 20, 1937, with Local B-1010; and by each of said acts, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. C. Discrimination as to terms and co ditions of employment, and hiring of employees After July 20, 1937, the respondent required as a condition of employment of all employees, old and new, that they be and remain members of Local B-1010. At the hearing it was sought to be estab- lished that the contract of July 20 was a closed-shop agreement and that the employees at the July 20 meeting were so informed. We are not satisfied, however, either that the agreement was for a closed shop or that the employees were so told. By its terms the contract provided for a preferential shop, not a closed shop, that is, for a preferential hiring of new employees through the offices of Local B-1010.28 There is no clear and convincing proof that the parties intended to be legally bound by anything other than what they wrote. Upon the record before us we find that the contract was not for a closed shop but for a preferential shop. As to the employees being told at the July 20 meeting that the contract was for a closed shop, the evidence relating thereto is meager and unpersuasive, without support in the versions of many witnesses as to what occurred. Clearly, then, the agreement of July 20 could not permit the re- spondent, under the proviso to Section 8 (3) of the Act, to compel old employees not hired pursuant to the preferential-shop provision to be and remain members of Local B-1010. Moreover, even if the contract was intended to and did provide that. any employee maintain membership in Local B-1010 such provi- sion would be illegal and void under the Act. The Act expressly pro- vides, and we have repeatedly held,- that an employer can acquire no 28 Paragraph Second of the agreement of July 20 provided: The Employer agrees to call upon the Union for any help coming within the perview ( sic) of this agreement that he may require, and the Union agrees to supply such workers required within 24 hours after request is made for them. In the event that said workers are not so supplied by the Union , the Employer may obtain such workers elsewhere , in which event such new workers shall be given a working card by the Union, ( 1) in the case of new experienced employees, only after a trial period of two weeks, and , ( 2) in the case of inexperienced new workers after a trial period of four weeks, and in both cases only after the employee has been accepted and approved by the Employer. All new employees hired may be discharged for any reason whatsoever by the Employer during the trial period mentioned above . During the trial period referred to above, new employees shall receive five (5¢ ) cents per hour less than the standard scale for the period. indicated. PILOT RADIO CORPORATION 1105 immunity in making or enforcing a closed-shop agreement with a labor organization which has been assisted by action of the employer defined in the Act as constituting unfair labor practices.27 We find that the respondent, by requiring after July 20, 1937, that its employees become and/or remain members of Local B-1010, dis- criminated in regard to the hire and terms and conditions of employ- ment of its employees, thereby encouraging membership in Local B-1010 and discouraging membership in any other labor organization, including the United. We further find that the respondent, by so discriminating in regard to the hire and terms and conditions of employment of its employees, has interfered with, restrained, and coerced its employees in the exer- cise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III, B and C, 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 between the States and foreign countries, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce.28 V. THE REMEDY It is essential to an effectuation of the purposes and policy of the Act that the respondent be ordered to cease and desist from the unfair labor practices in which we have found it to have engaged, and, in aid of such order and as a means of removing and avoiding the conse- quences of such practices, that the respondent be ordered to take' certain affirmative action more particularly described below. We have found that the respondent engaged in unfair labor practices by interfering with, restraining, and coercing its employees in various ways in the exercise of rights guaranteed in Section 7 of the Act, and by discriminating in regard to hire and terms and conditions of employment thereby encouraging membership in Local B-1010 and discouraging membership in any other labor organization including the United. Accordingly, we shall order the respondent to cease and desist from such unfair labor practices. We have also found that the respondent encouraged and assisted Local B-1010 through various unfair labor practices. In order to 27 See Matter of Williams Coal Company and United Mine Workers of America, District No. 33, 11 N. L. R. B. 579. 21 Santa Cruz Fruit Packing Co. v. National Labor Relations Board, 303 U. S. 453; National Labor Relations Board V. Fainblatt et at., etc., 59 Sup. Ct. 668. 1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD restore the status quo and to permit the employees full freedom in self- organization, without hindrance by reason of the respondent's unfair labor practices, we find it essential that the respondent cease and desist recognizing Local B-1010 as a representative of any of its employees pending final action upon the petition of the United for investigation and certification of representatives, and cease and desist recognizing Local B-1010 as the exclusive representative of its employees unless and until Local B-1010 is certified as such exclusive representative or, after final action on the United's petition; Local B-1010 is duly desig- nated by a majority of the employees as their representative. We shall also affirmatively order that the respondent withhold such recognition. In addition we have found that the contract of July 20, 1937, entered into by the respondent with Local B-1010 constituted an integral part of the respondent's campaign to assist Local B-1010 and discourage membership in the United. The respondent should not be permitted to retain the advantages of its unfair labor practices through the device of entering into a contract with an organization it has unlaw- fully assisted. In order to restore the status quo and create a situa- tion in the plant where the employees will feel free to organize accord- ing to their own wishes, it is necessary that the respondent cease giving effect to the contract of July 20, 1937, any renewal or extension thereof, and any successor contract which may now be in effect. We shall so order. In its motion to reopen Local B-1010 requested opportunity to intro- duce evidence to show that the respondent had on February 28, 1938, entered into another contract with Local B-1010, which was to run until March 1, 1939. In our opinion subsequent contracts negotiated between the respondent and Local B-1010 stand in the same position as the contract of July 20, 1937, unless the respondent has meanwhile purged itself of its unfair labor practices and the situation in the plant. has been such as to insure the employees full freedom of expression in their choice of representatives. No such showing is made in the papers supporting the motion to reopen and we must presume that the conditions shown to exist at the hearing continue. As stated above, we find that under such circumstances the objectives of the Act can be secured only if the respondent ceases giving effect to such successor contract with Local B-1010 as is now in effect. Hereinafter we have directed that an election be held among the employees of the respondent in an appropriate unit to determine whether they desire Local B-1010, the United, or neither of these labor organizations, to be their collective bargaining agency. That election is to be held after a period shall have elapsed sufficient to permit the respondent's employees to consider and determine, free from any and all employer compulsions, restraints, and interference, PILOT RADIO CORPORATION 1107 -which of the two labor organizations, if either, they wish to have represent them for collective bargaining purposes. VI. THE QUESTION CONCERNING REPRESENTATION The United and Local B-1010 each here claims to have been desig- nated as collective bargaining representative by a majority of the respondent's employees in an appropriate bargaining unit, and, ac- -cordingly, to constitute the exclusive collective bargaining representa- tive of all the employees in such unit. These units overlap substan- tially. We are unable upon the evidence adduced and the above- :mentioned report to the Trial Examiner and the Board to determine which of the two labor organizations, if either, represents a majority ,of the respondent's employees in either of the units claimed to be :appropriate, or in the unit hereinafter found to be appropriate. Both organizations appear to have been designated by a substantial num- ber of the plant employees, and, as heretofore stated, a material amount of duplication in their membership exists. Moreover, the contention of Local B-1010 regarding representation cannot be con- sidered seriously because of the respondent's afore-mentioned assist- ance to Local B-1010 as a result of which that organization cannot, presently constitute a freely chosen representative.29 We find that a question has arisen concerning the representation of employees of the respondent. While it may be that there now exists an agreement between Local B-1010 and the respondent granting Local B-1010 recognition as exclusive representative of the plant employees within a unit encompassing or included in the unit here- inafter found to be appropriate, a.ndi/or providing for membership in that labor organization as a condition of employment, such an agreement, for the, reasons set forth above, cannot be taken as re- solving the question concerning representation here presented3° In any event, an agreement made subsequent to the commencement of representation proceedings before the Board constitutes no bar to a determination of such a question.31 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 zI See Matter of Pacific Greyhound Lines, Inc. and Amalgamated Association of Street, Electric Railway and Motor Coach Employes of America, etc., 9 N . L. R. B. 557. 80 Matter of Pacific Greyhound Lines, Inc. and Amalgamated Association of Street, Elec- tric Railway and Motor Coach Employees of America, etc., 9 N . L. it. B. 557, 569-570. x Matter of Wilmington Transportation Company and Inland Boatmen's Union of the Pacific, San Pedro Division, 4 N. L. it. B. 750, 753-754; Matter of American-West African Line, Inc. and National Marine Engineers' Beneficial Association, 4 N. L. it. B. 1086, 1090 ; Matter of California Wool Scouring Company and Textile Workers Organizing Committee, 5 N. L. it. B. 782, 785. 1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD relation to trade, traffic, and commerce among the several States, and between the States and foreign countries, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VIII . THE APPROPRIATE UNIT In its petition the United alleged that all production workers of the respondent, exclusive of executives, foremen, supervisors, and clerical help in, the respondent's office, constitute a unit. appropriate for the purposes of collective bargaining. At the hearing Local. B-1010 and the respondent contended that not all production workers were properly to be included in the unit, that only those production workers directly engaged in the manufacture of the respondent's products, hereinafter called "direct labor," come within the appro- priate unit. Some difference apparently exists among the parties in their use of such terms as production workers. The parties agreed, however, that the one serviceman 32 employed by the re- spondent should be excluded from the appropriate unit. We see no reason for not acquiescing in .the exclusion of this employee. In addition to the direct labor, the serviceman, and the office and supervisory force, the respondent employs the following employees toolroom employees, stockroom employees, shipping-department em- ployees, porters, one carpenter, and engineering-department employees. The direct labor, except the testers, who also constitute direct labor, require little skill for their work. Two weeks or less of training are all they need. Testers, however, must train several months to a year before they can undertake to perform their work. The direct labor are compensated at rates varying from 45 cents to 65 cents an hour and all, except the electric testers, work by hand. Their work ie closely coordinated with the boat schedules of shipments at the New York City piers. The toolroom employees make jigs and fixtures for use in the shop, prepare dies, repair tools, and do other maintenance work. They are skilled workers and have a technical knowledge of machinery and the operation of machine tools. They are compensated at hourly rates averaging from 90 cents to $1. The stockroom employees have charge of the storage and distribu- tion of the various materials which are used in the manufacture of the respondent's products. They are not skilled workers. The shipping-, department employees pack the finished radio sets and parts, make provision for their shipment from the respondent's plant, and keep records of shipments. The evidence does not show what degree of skill is required for their work. The compensation of all these em- ployees is on a weekly basis and approximates that of the direct labor- 32 Servicemen repair radio sets which have already been in use. PILOT RADIO CORPORATION 1109 The porters, of whom there are three, clean the floors, move mate- rial about, and perform miscellaneous tasks assigned to them. The record does not show how or what they are paid. The respondent's single carpenter is employed part time and is paid at an hourly rate substantially higher than that of the direct labor. The employees in the engineering department are highly skilled workers. They design and draw, and are paid weekly salaries varying from $27 to $80. They are not laid off during seasonal declines in business, as most of the respondent's other employees are. The direct labor and the porters are under the general supervision of the plant superintendent. The employees in the shipping and engi- neering departments and the tool and stockrooms are under the super- vision of the respondent's vice president, who is also its general manager. The July 20 contract with Local B-1010, the first collective agree- ment ever entered into by the respondent with a labor organization, applied only to the respondent's direct labor.33 However, this agree- ment was with a labor organization assisted by unfair labor practices and consequently is valueless as an indication by the employees of the unit which they prefer for purposes of collective bargaining. On the basis of these facts and on the entire record in the case we are of the opinion that the direct labor, the employees in the tool- room, the stockroom, and the shipping department, the carpenters, and the porters, constitute an appropriate unit. They will be re- ferred to hereinafter collectively as production and maintenance employees. We do not think the skill of the toolroom employees, their higher pay, and the fact that they produce what the respondent classifies as capital investment, are sufficient reasons to exclude them from the unit. Their interests as employees seem to us to be closely identified with those of the direct labor, and no claim is made that they have ever had separate representation or that they desire sepa- rate representation. Although the stockroom employees are paid by the week, the fact that their duties likewise are closely related to the actual manufacture of the respondent's products and that their em- ployee interests also are identified with those of the direct labor con- vinces us that they too should be included in the unit. We are of the opinion, for reasons above indicated in connection with other classi- fications, that the shipping-department employees should be included in the unit. Their work is functionally related to that of the direct labor and substantial interdependence between the work of these two classifications exists. We see no adequate reason upon the record be- fore us why the carpenters or the porters should be excluded from the 13 See footnote 1.2. 1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unit. These employees are not shown to desire representation sepa- rate from the rest of the employees and in view of their small number we think they should be represented with other employees in the unit. We are of the opinion that the employees in the engineering depart- ment should be excluded from the unit. The nature of the work they perform and the character of their training, as well as other facts above mentioned, distinguish them materially in function and interest from the other workers in the unit and warrant their exclusion.34 The supervisory and clerical force will be excluded in accordance with our usual rule. We find that the production and maintenance employees of the respondent, excluding executives, foremen, supervisors, servicemen, clerical employees, and employees in the engineering department, con- stitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to employees of the respondent the full benefit of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. IX. THE DETERMINATION OF REPRESENTATIVES For reasons already sufficiently appearing we are unable upon the record to determine the question which has arisen concerning repre- sentation of employees of the respondent. We find that this question can best be resolved by means of an election by secret ballot. In view of the desirability of affording to the employees within the appro- priate unit an opportunity freely to consider and determine their choice of representative, the election will be held at such time as we shall in the future direct. At the time the date of the election is set we shall determine the pay-roll date as of which eligibility to. vote shall be calculated. 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 & Radio Workers of America, and Radio Union, Local B-1010 of the International Brotherhood of Electrical Workers, are labor organizations, within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to hire and terms and conditions of employment of its employees, thereby encouraging membership in Radio Union, Local B-1010 of the International Brotherhood of Electrical Workers, and discouraging membership in any other labor 8' Matter of Tennessee Electric Power Company and International Brotherhood of Electrical Workers, 7 N. L. R. B. 24. PILOT RADIO CORPORATION 1111 organization, including United Electrical & Radio Workers of Amer- ica, the respondent has engaged in and is engaging in unfair labor .practices, 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. A question affecting commerce has arisen concerning the repre- :senta.tion of employees of the respondent, within the meaning of Sec- tion 9 (c) and Section 2 (6) and (7.) of the Act. .6. The production and maintenance employees of the respondent, excluding executives, foremen, supervisors, servicemen, clerical em- ployees, and employees in the engineering department, 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, Pilot Radio Corporation, New York City, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Urging, persuading, intimidating, or coercing its employees to join Radio Union,'Local B--1010 of the International Brotherhood of Electrical Workers, and not to join United Electrical & Radio Workers of America, or to join or, not to join any other labor organization of its employees ; (b) Discouraging membership in United Electrical & Radio Work- ers of America or encouraging membership in Radio Union, Local B-1010 of the International Brotherhood of Electrical Workers, or discouraging - r encouraging membership in any other labor organi- zation of its employees, by, discriminating in regard to hire and tenure of employment, 'or any term or condition of employment, of its employees ; (c) Recognizing or in any manner dealing with Radio Union, Local B-1010 of the International Brotherhood of Electrical Workers, as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employ- ment, pending final action upon the petition of United Electrical & Radio "Workers of America 'for investigation and certification of representatives; 190935-40-vol. 14--71 1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Recognizing or in any manner dealing with said Local B-1010 as the exclusive collective bargaining representative of any of its employees, unless and until said labor organization is" certified as such exclusive representative by the Board or unless and until, after final action upon the aforesaid petition by the Board, said labor or- ganization is duly designated by a majority of the respondent's employees within an appropriate unit to be their representative for purposes of collective bargaining; (e) Giving effect to the contract of July 20, 1937, with said Local B-1010, or to any extension or renewal thereof, or to any successor contract with Local B-1010 which may now be in effect; (f) In any other manner interfering with, restraining, or coercing its employees in their right to self-organization, to form, join, and assist labor organizations, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted activi- ties, for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Withhold recognition from Radio Union, Local B-1010 of the International Brotherhood of Electrical Workers, as the representa- tive of any of its employees for the purpose of dealing with it con- cerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, pending final action by the Board upon the aforesaid petition; (b) Withhold recognition from said Local B-1010 as the exclusive collective bargaining representative of any of its employees, unless and until said labor organization is certified as such representative by the Board or unless and until, after final action by the Board upon the aforesaid petition, said labor organization is duly designated by a majority of the respondent's employees within an appropriate unit to be their representative for such a purpose; (c) Immediately post, and keep posted for a period of at least sixty (60) consecutive days from the date of posting, in conspicu- ous places throughout its plant, notices to its employees stating that the respondent will cease and desist in the manner set forth in 1 (a), (b), (c), (d), (e), and (f), and will take the affirmative action above set forth in 2 (a) -and (b) of this Order; (d) Notify the Regional Director for the Second Region in writ- ing within fifteen (15) days from the date of this Order what steps the respondent has taken to comply therewith. AND IT IS FURTHER ORDERED that the complaint, as amended, in so far as it may allege that the organizers. employed by the respondent were hired pursuant to a previous agreement, understanding, or ar- I PILOT RADIO CORPORATION 1113 rangement with Local B-1010, and in so far as it alleges that the respondent entered into a contract with Local B-1010 as the ex- clusive representative of the respondent's employees although said 'labor organization did not then represent a majority of said em- ployees, be, and the same hereby is, dismissed. 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 Re- lations Act, 49 Stat. 449, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, it is hereby DIRECTED that, as part of the investigation ordered by the Board to ascertain representatives for collective bargaining with Pilot Radio Corporation, New York City, an election by secret ballot be con- ducted under the direction and supervision of the Regional Direc- tor for the Second Region, acting in this matter as agent for the National Labor Relations Board; and subject to Article III, Sec- tion 9, of said Rules and Regulations, at such time as the Board in the future shall direct, among all the production and maintenance employees employed by the respondent, Pilot Radio Corporation, at its New York City plant, excluding executives, foremen, super- visors, servicemen, clerical employees, and employees in the engineer- ing department, to determine whether they desire to be represented by United Electrical & Radio Workers of America, or by Radio Union, Local B-1010 of the International Brotherhood of Electrical Workers, for the purposes of collective bargaining, or by neither. MR. WILLIAM M. LEIsRRsoN took no part in the consideration of the above Decision, Order, and Direction of Election.