Quality Art Novelty Co., Inc.

III the Matter Of QUALITY ART NOVELTY Co., INC. and UNITED PAPER WORKERS, L. I. U. No. 292 In the Matter of QUALITY ART NOVELTY Co., INC. and COMMITTEE FOR INDUSTRIAL ORGANIZATION ON BEHALF OF THE EMPLOYEES OF QUALITY ART NOVELTY Co., INC. Cases Nos. C 103,E and 8-844, respectively.Decided February 24, 1940 Greeting Card Industry-Interference. Rectraint, and Coercion: interrogation of employees as to union affiliation and activities ; surveillance of union meet- ing ; speeches and statements disparaging union-Company-Dominated Union: determine choice of representatives, following respondent's expression of hos- through, to forestall union organization ; proposal by respondent of vote to determine choice of representatives, following respondent's expression of hos- tility toward affiliated union and preference for "inside" organization ; promo- tion of "inside" organization permitted while similar privileges denied proponents of affiliated union; employees dismissed early and instructed to attend organiza- tional meetings of "inside" organization ; recognition granted to and negotia- tions for contract begun with "inside" organization without verification of membership claim; contract with "inside" organization executed despite claim of affiliated union ; changes in wages and working conditions denied employees promptly granted "inside" organization exhibiting no economic strength ; dis- established, as agency for collective bargaining-Preferential-Shop Contracts: with company-dominated union, invalid ; announcement of prospect of, used as means of establishing "inside" organization ; executed for purpose of stabilizing and insuring continuance of "inside" organization; respondent ordered to cease giving effect to-Discrimination: employee allegedly discharged for sabotage found discharged for union activity ; lay-off of four employees pursuant to preferential contract with company-dominated union held discriminatory ; dis- crimination against laid-off employees not terminated where reemployed subject to illegal preferential contract-Reinstatement Ordered: for employees dis- charged and employees laid off ; reemployment of latter subject to illegal preferential contract no bar-Back Pay: awarded to employees ordered rein- stated-Investigation of Representatives: petition for, dismissed without preju- dice in view of lapse of time and uncertain proof as to appropriate unit- Procedure: application for continuance after commencement of hearing : neces- sity of showing adequate cause for; circumstances under which properly denied ; amendment of complaint during hearing- to add allegations of dis- criminatory discharge : objections to on grounds of surprise and lack of 5 days' notice without merit where adequate opportunity afforded to prepare defense. Mr. Mark Lauter, for the Board. Mr. Abraham J. Halprin, of New York City, for the respondent. 20 N. L. R. B., No. 77. 817 818 DECISIONS OI,' NATIONAL LABOR RELATIONS BOARD Mr. George Glassgold, by Mr. Herbert S. Klein, of New York City, for the Intervenor. Mr. Raymond J. Compton, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE On October 26, 1937, the Committee for Industrial Organization 1 filed with the Regional Director for the Second Region (New York City) a petition alleging that a question affecting commerce had arisen concerning the representation of employees of Quality Art Novelty Co., Inc., Long Island City, New York, herein called the respondent, and requesting an investigation and certification of rep- resentatives pursuant to Section 9 (c) of the National Labor Rela- tions Act, 49 Stat. 449, herein called the Act. On November 16, 1937, the Committee for Industrial Organization filed charges with the Regional Director 'alleging that the respondent had engaged in and was engaging in certain unfair 'labor practices affecting com- merce, within the meaning of the Act. - On November 24, 1937, the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regula- tions-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, acting pursuant to Article III, Section 10 (c) (2), and Article II, Section 37 (b), of the said Rules and Regulations-Series 1, as amended, directed that the representation proceeding and the proceeding in respect to the alleged unfair labor practices be consolidated for the purpose of hearing. On January 11, 1938, United Paper Workers, L. I. U. No. 292, herein called the Union, affiliated with the Committee for Industrial Organization, filed amended charges in the proceedings in respect to the alleged unfair labor practices and on April 1, 1938, filed second amended charges therein.2 Thereafter, upon the second amended charges, the Board, by the Regional Director, issued its complaint dated April 5, 1938, against the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the Act. 1 Now the Congress of Industrial Organizations. 2 The original charge alleged that the respondent had engaged in unfair labor practices within the meaning of Section 8 ( 1) and (2), and the amended and second amended charges, Section 8 (1), (2), and (3), of the Act. QUALITY ART NOVELTY 'COM'PANY, INC. 819 With respect to the unfair labor practices, the complaint alleged in substance that the respondent had (1) in and about October 1937, initiated, formed, sponsored, and dominated a labor organiza- tion of its employees known as the Quality Art Shop Union, herein called the Intervenor,3 and contributed financial and other support to it; (2) in November 1937, discharged Blanche Jonas and Helen Ruderman, and, in March 1938, discharged Jerome Berent and Irving Goldstein, and refused to reinstate said employees for the reason that they joined and assisted the Union and engaged in other concerted activities for the purpose of collective bargaining; and (3) by the afore-mentioned acts, as well as by urging, persuading, and warning its employees to refrain from becoming or remaining members of the Union, by surveillance of meetings of the Union, by threatening its employees with discharge and other reprisals if they did not' become members of the Intervenor, and by other acts, interfered with, re- strained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Copies of the complaint and order of consolidation, accompanied by notice. of hearing, were duly served upon the respondent, the Union, and the Intervenor.4 On or about April 13, 1938, the respondent filed an answer and a motion for a bill of particulars. In its answer, the respondent ad- mitted the allegations of the complaint as to the nature of its business, but denied the averments of unfair labor practices.5 On or about April 14, 1938, the Intervenor filed a petition for leave to intervene, which the Regional Director granted, and an answer. By its answer the Intervenor denied the allegations of the complaint of unfair labor practices with respect to its formation and adminis- tration, and specifically denied that it participated in or in any man- ner influenced or caused the discharge of any of the employees named in the complaint, except that it alleged that Berent and Goldstein, two of said employees, were laid off in accordance with the terms a The Intervenor was incorrectly designated in the complaint as the Quality Art Novelty Employees Association. On May 12, 1938, counsel for the Board served a notice of motion to amend the complaint in this respect , and at the commencement of the hearing, on May 19, 1938, the Trial Examiner granted the motion without objection. 4 Copies of the notice of hearing on the consolidated cases were also served upon certain labor organizations affiliated with the American Federation of Labor, herein called the A. F. of L. Unions, which might claim to act as representatives of the respondent's em- ployees affected by the representation case . The A. F. of L. Unions were the Committee of the Allied Printing Trades Unions , New York Printing Pressmen's Union No. 51, New York Typographical Union No. 6, New York Press Assistants Union No. 23, Paper Cutters Protective Union No. 119, Bindery Women's Union No. 66, and Paper Handlers and Sheet Straighteners Union No. 1. 5 The answer of the respondent also included certain pleas addressed to the petition for investigation of representatives. 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of a contract entered into between the respondent and the Intervenor under date of December 10, 19378 On April 28, 1938, the Regional Director duly postponed the hear- ing until May 19, 1938. Notices of the postponement were duly served upon the parties.7 On or about May 13, 1938, the Intervenor filed a motion for a bill of particulars. Pursuant to notice, a hearing was held in New York City on May 19, 1938, and from May 27 to June 17, 1938, before James M. Brown, the Trial Examiner duly designated by the Board. The Board, the respondent, and the Intervenor were represented by .counsel, and all participated in the hearing." Full opportunity to be heard, to ex- amine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the commencement of the hearing, the Trial Examiner denied the motions of the respondent and the Intervenor for bills of par- ticulars, but stated that after the Board had presented its case, he would grant such time as would appear necessary to prepare their evidence. On June 9, 1938, shortly after the mid-day recess, the Board rested its case, with leave to call three additional witnesses." Thereupon, the respondent requested an adjournment until June 16, 1938, to prepare its evidence. The Intervenor made no request for an adjournment. The Trial Examiner denied the respondent's appli- cation for An adjournment of a week, but adjourned the hearing until June 13, 1938. The record shows that the denial of the motions for bills of particulars did not embarrass either the respondent or the Intervenor in the conduct of their cross-examination of witnesses called by the Board, but discloses that, on the contrary, such cross- examination was most exhaustive, and that the adjournment granted by the Trial Examiner was entirely adequate to permit the respondent and the Intervenor to prepare their evidence. The rulings are affirmed. Witnesses called by the respondent were heard on June 13, 14, 15, and 16, 1938. Toward the close of the hearing held on 'June 16, 1938, counsel for the respondent stated that the respondent had completed its proof except for the testimony of Harry Hankoff, the respondent's e'The answer of the Intervenor also included certain pleas addressed to the petition for investigation of representatives erroneously referred to in the answer as a charge. 7 Copies of the notice of postponement were also served on the A . F. of L. Unions (see footnote 4, supra). $ None of the A. F. of L. Unions participated . ( See footnote 3, supra.) 9 These three were Blanche Jonas, one of the persons named in the original complaint as discriminatorily discharged and denied reemployment , and Kelman Borten and Lester Cohen , whose names were included by amendment of the complaint during the hearing on June 13, 1938 , ( see infra) as also discriminatorily discharged and refused reinstatement. Blanche Jonas did not appear as a witness . As appears below , Korten and Cohen testi- fied on June 17, 1938, and their testimony related to facts which , so far as necessary to the decision of the case, are undisputed. QUALITY ART NOVELTY 'COMPANY, INC. 821 credit manager, and Herman Frankel and David Korn, two of the respondent's salesmen, and that these "material witnesses referred to repeatedly by witnesses" called by the Board were "on a business tour and won't be back until sometime next week." The respondent did not expressly request an adjournment, and the Trial Examiner directed the Intervenor to proceed with its case. On the following day, the Intervenor completed its case, the Board introduced the testimony of two witnesses in accordance with the reservation allowed on June 9, 1938,10 and the respondent called one further rebuttal witness. Counsel for the respondent then stated that "The respond- ent rests on (sic) direct, and under the conditions heretofore stated." Thereby, the respondent now urges, it intended to indicate that it wished an adjournment in order to introduce the testimony of Frankel, Hankoff, and Korn. The Trial Examiner does not appear to have understood the statement as intended to be such an application, and does not seem to have purported to rule thereon in ordering the hearing closed. His ruling closing the hearing was proper, however, even assuming the statement of respondent's counsel may be deemed an application for a continuance,h1 and is hereby affirmed. Testi- mony involving Frankel and Korn had been given by Helen Ruder- man, a witness called by the Board on May 17, 1938, the first day of the hearing; and testimony involving Hankoff had been given by Irving Goldstein, another witness called by the Board on June 3, 1938. The respondent, therefore, had ample time to arrange to have these witnesses available if it wished them to testify. Moreover, the re- spondent made no showing that they were unavailable when it re- quested and obtained an adjournment on other grounds on June 9, 1938, or that they could not have been produced by the conclusion of the hearing more than a week later. As we have pointed out in. another case,. "In the absence of an adequate showing of substantial cause, private convenience must accommodate itself to public neces- sity." 12 In the instant case the respondent has not, indeed, made even, a showing of private inconvenience. A supplemental charge having been filed, counsel for the Board moved at the hearing on May 27, 1938, to amend the complaint tb allege, that, in March 1938, the respondent-had discharged Edward Axelrod and refused to reinstate him for the reason that he joined 10I. e., Lester Cohen and Kelman Borten (see footnote 9, supra). "For the reasons stated below we find it unnecessary to determine whether the state- ment of counsel for the respondent amounted to an application for a continuance, particu- larly in view of the indefinite reference therein to the time when Frankel, Hankoff, and Korn were expected to be available. '= Matter of Ronni Parfum, Inc., and. Ey-Teb Sales Corp. and United Mine Workers of America, District No. 50, Chemical D'vision, Successor to Chemical Workers Local Indus- trial Union No. 33, affiliated with the C. 1. 0., 8 N. L. R. B. 323, 325, order enforced. National Labor Relations Board v. Ronni Parfum, Inc., 104 F. (2d) 1017 (C. C. A. 2d, 1939). 283031-41-vol. 20-53 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and assisted the Union and engaged in other concerted activities for the purpose of collective bargaining. The Trial Examiner granted the motion, overruling the objection made by the respondent that no. amendment might be offered after the commencement of the hearing, an objection obviously without merit,13 and the general objection made by the Intervenor. A further supplemental charge having been filed, counsel for the Board moved at the commencement of the hear- ing on June 13, 1938, to amend the complaint to allege that the re- spondent had also discharged Lester Cohen and Kelman Korten in March 1938 and had refused to reinstate them for the reasons afore- said. The Trial Examiner allowed the amendment over the objections of the respondent, based first on the ground of surprise, and secondly on the ground that the respondent was entitled to 5 days' notice.- The latter contention apparently was sought to be rested upon the provision of the Rules and Regulations allowing a respondent 5 days within which to file an answer to a complaint,- a provision which is inapplicable to motions to amend a complaint during a hearing. With respect to such a situation, the Rules and Regulations provide'16 as was pointed out by the Trial Examiner, that an amendment may be made by the Trial Examiner "upon such terms as may be deemed just." Essentially, therefore, in the instant case, the inquiry is as to whether the respondent was afforded adequate opportunity to make its de- fense. Cohen and Korten were not called as witnesses until June 17, 1938, at which time they testified without objection, and no adjourn- ment was requested to enable respondent to rebut their testimony. The prior objection on the ground of surprise was thus plainly waived. Moreover, as will appear, so far as necessary to our decision, the facts with respect to the reason for the termination of the employment of Cohen and Korten are not disputed '17 and no purpose would have 13 Article II, Section 7, of National Labor Relations Board Rules and Regulations- Series 1, as amended , provides, "Any such complaint may be amended by the Trial Exam- iner or the Board in his or its discretion at any time prior to the issuance of an order based thereon , upon such term's as may be deemed just." Axelrod did not testify until June 8, 1938, and, as we point out below, so far as necessary to our decision the facts with respect to reasons for the termination of his employment are not in dispute. 14 The Intervenor did not oppose the motion. 16 Article II, Sectiog 10. The time is enlarged to 10 days by National Labor Relations Board Rules and Regulations-Series 2, effective July 11, 1939. 16 Article II, Section 7. See footnote 13, supra. 17 While no formal answer was filed to the complaint as amended on May 27 and June 13, 1938, to include the allegations with respect to Axelrod , Cohen, and Korten, the respond- ent's position with respect thereto, as well as with respect to Goldstein, named in the original complaint, is fully stated in an affidavit filed by it on or about October 1, 1938, in opposition to a motion to strike the allegations of the complaint with respect to Berent, another complainant (see infra ). In said affidavit the respondent stated that as to these "complainants, the company claimed that they were discharged because of the seniority and preference granted to members of the shop union [ i. e., the Intervenor ] in accordance with the terms of a written contract in effect between the shop union and the company." Previously , in its brief submitted to the Trial Examiner after the close of the hearing, the. respondent had set forth the same contention , I. e., that these employees were discharged because of "non-membership in the shop union and in conformity with the provisions of: the contract." QUALITY ART NOVELTY 'COMPANY, INC. 823 been served by continuing the hearing. The rulings of the Trial Examiner amending the complaint are affirmed. During the course of the hearing, other rulings on motions and on objections to the admission of evidence were made by the Trial Examiner. At the conclusion of the hearing, the Trial Examiner granted a motion by counsel for the Board to amend the complaint to conform to the proof with respect to variances in names, places, and dates. The Board has reviewed these rulings of the Trial Ex- aminer and finds that no prejudicial errors were committed. The rulings are hereby affirmed. After the close of the hearing the respondent and the Intervenor filed briefs with the Trial Examiner .who duly considered them. On or about September 29, 1938, the Regional Attorney for the Board filed with the Regional Director a motion to strike the name of Jerome Berent from the complaint. The motion, copies of which were served upon the respondent and the Union, set forth that on July 26, 1938, counsel for the respondent had written the Regional Office that certain employees, including Berent, had been reemployed; that on August 31, 1938, the Regional Office had received a further communication from the attorney for the respondent which stated that there was enclosed therewith a letter which he had sent to the Trial Examiner, alleging that Berent had confessed to have stolen property from the respondent during the past year, and that the communication also enclosed a photostat of a purported confession by Berent; that on September 2 the attorneys for the Union had written,the Regional Director that Berent had been reinstated by the respondent and had thereafter terminated his employment under circumstances which led the Union to request leave to withdraw the charge in so far as it related to Berent and to request the Trial Examiner be so advised; that on September 4, 1938, the Regional Office submitted to the attorney for the respondent a stipulation providing for the withdrawal of the allegations in the charge and in the complaint with respect to Berent, but that the attorney for the respondent refused to sign such stipulation. On, or about October 1, 1938, the respondent filed the affidavit of its attorney in opposition to the motion to strike. In addition to setting forth certain allegations with respect to the alleged theft, and con- fession thereof, by Berent, the affidavit explained the refusal of the respondent to sign the afore-mentioned stipulation on the ground that. Berent's confessed criminal conduct affected. his credibility, that his testimony should remain in the record in order that it might be dis- credited and in order that the respondent's defense might thereby be strengthened. In his Intermediate Report., issued on or about November 10, 1938, the Trial Examiner granted the motion to strike the allegations of 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the complaint with respect to Berent. Since the motion was not di- rected to the testimony of Berent, we are unable to perceive any ground for the affidavit filed in opposition thereto. Certainly the action of the Trial Examiner in striking Berent's name from the complaint did not prejudice the respondent. In his Intermediate Report, copies of which were duly served. upon the parties, the Trial Examiner found that the respondent had en- gaged in and was engaging in unfair labor practices affecting con- merce, within the meaning of Section 8 (1), (2), and (3) of the Act and recommended that the respondent cease and desist there- from and take certain affirmative action to remedy the situation brought about by those unfair labor practices. The Trial Examiner further recommended that the complaint be dismissed as to Blanche Jonas, with respect to whose discharge no evidence was offered at ,the hearing. Exceptions to the Intermediate Report were filed by the respondent •on November 23, 1938, and by the Intervenor on November 26, 1938. On May 19, 1939, pursuant to notice duly served upon the parties, a hearing was held in Washington, D. C., for the purpose of oral argu- ment. The respondent and the Intervenor were represented by coun- sel and presented oral argument. The Union did not appear' At the close of the argument the respondent and the Intervenor filed briefs which have been considered by the Board. In its brief the respondent seeks to attach importance to the fact that the Trial Ex- aminer in his Intermediate Report gave credence to the testimony of Berent. While in our findings we do not rely upon his testimony, either as independent evidence or as corroborative of other testimony, there clearly is no merit in the contention apparently made that by reason of Berent's alleged misconduct subsequent to the hearing the Trial Examiner who saw and heard the witnesses was not entitled to accept his testimony. The Board has considered the exceptions of the respondent and of the Intervenor to the Intermediate Report and, except in so far as they are consistent with the findings, conclusions, and orders set forth below, finds them to be. without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent is a New York corporation engaged in the manu- facture, sale, and distribution of greeting cards. Its principal office 18 None of the A. F. of L. Unions (see footnote 4, supra ) appeared at the oral argument, but on June 21, 1939, pursuant to permission granted by the Board , New York Press Assistants Union No. 23 filed a brief with respect to its alleged interest in the representa- tion case. 825 QUALITY ART NOVELTY COMPANY, INC. and plant are located at Long Island City, New York, and a sales office is maintained in New York City. The raw materials pur- chased by the respondent include paper, inks, lead, tassels, ribbons, seals, and other related products. In 1937 the gross volume of such purchases totaled approximately $650,000, of which 50 per cent were made in States other than the State of New York. During the. same period, the respondent shipped to points outside the State of New York, and including Canada and England, finished products repre- senting $1,870,000 in gross sales, and shipped to points within the State of New York finished products representing $330,000. The respondent stipulated that it is engaged in commerce within the. meaning of the Act. II. THE ORGANIZATIONS INVOLVED United Paper Workers, L. I. U. No. 292, is a labor organization affiliated with the Committee for Industrial Organization 19 admit- ting to membership employees of the respondent. Quality Art Shop Union is an unaffiliated labor organization restricting membership to employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Domination of and interference with the Intervenor, and support thereto; other interference, restraint, and coercion 1. Chronology of events In the latter part of September and early in October 1937 em- ployees in the respondent's stock and shipping departments initiated organization of the Union. On Saturday, October 16, Joe Katz, foreman of the shipping department, stopped at the Court Square Restaurant, where he found a number of stock and shipping em- ployees holding a union meeting. He related the incident to Phil Katz, vice president of the respondent, who in turn reported the meeting to their brother Louis Katz, president of the respondent. Louis Katz testified that he then appointed Phil Katz, Clement Swan, head of the art department, and Harry Hankoff, credit man- ager and supervisory head of the stock and shipping departments, to investigate any grievances that existed among the employees and report "what the disputes were, if any," so that he could "straighten them out." Katz further testified that he also instructed them to have the employees elect "a delegate or one individual from a de- partment-with instructions that the person appointed must be voted Is See footnote 1, supra. 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by that department to be impartial, and that individual get griev- ances and to report." On the morning of October 18 Phil Katz held separate meetings during working hours with the stock and shipping departments which were composed of male employees. Irving Gold- stein, a shipping-room employee, testified that Katz told them that the respondent knew of their attendance at the union meeting, that the C. I. O. was composed of racketeers, and that he would not have objected to their joining the American Federation of Labor because "they were gentlemen." Goldstein stated that Katz then suggested the election of a committee to present their grievances to him, stating that they should be able to "iron out matters" between themselves. According to the testimony of Edward Axelrod, a stockroom em- ployee, Phil Katz made a similar speech in the stock department, telling the employees there that he. had heard of their "going to an outside union, trying to get better conditions," that the Union "wasn't really any good," and that instead of paying "a lot of dues" they could derive greater benefit; by dealing personally with him. Phil Katz testified that he had addressed both the stock and the shipping employees in the same manner, telling them that he had heard "there was a lot of rumbling going around the place, especially in the stock and shipping rooms," and that he knew of their attend- ance at a union meeting 2 days before. Katz stated that he then called attention to the respondent's fairness in respecting their de- mands on previous occasions, and suggested that they appoint a committee to present their grievances for settlement. Katz denied voicing any opposition to or making disparaging remarks concerning the Union, and stated that when Goldstein expressed the desire for union representation, he replied : "If it is the wish of all the people, then it is all right; but if it is the wish of one man, we are not interested." The Trial Examiner who saw and heard the witnesses found that Goldstein and Axelrod correctly stated what occurred at these meetings, and in the light of the clearly established conduct of the respondent shortly after these meetings we are satisfied that Katz made the statements attributed to him. Since, by his own admission, Katz sought to divert the stock and shipping employees from their efforts to organize the Union, the respondent by Katz's statements clearly interfered with, restrained, and coerced the em- ployees in the exercise of the rights guaranteed by Section 7 of the Act. In accordance with the suggestion made by Phil Katz, committees composed of four representatives from each of these departments met that same morning during working hours without loss of pay to discuss their grievances with Katz, Hankoff, and Swan. Axelrod was spokes- man for the stockroom, and Goldstein headed the committee from the shipping department. These meetings were likewise held separately, QUALITY ART NOVELTY 'COMPANY, INC. 827 Phil Katz refusing to grant a request made by the representative to present their grievances at a joint meeting. In response to their ex- pressed preference for union representation, the committees were asked if there was anything that the respondent could not discuss with them. The representatives then presented their demands which in- •cluded,a 40-hour week, a $3.00 increase in pay for permanent employees and $2.00 for temporary employees, vacation with pay, seniority status, additional compensation benefits for time lost due to injuries, and a written contract. The discussion of these demands was continued at .a second meeting with the committees that afternoon, at which time they were told that the demands were "unjust" and "too high," and would have to be referred to Louis Katz for final decision. The re- quest for a written contract was also dismissed by- Phil Katz with a statement that he did not think Louis Katz would grant it,and that the management could be trusted to keep its word. During working hours the following day, Hankoff arranged for and addressed a joint meeting of the stock and shipping committees in the office of the Com- mercial Die Cutting Company which occupied the fourth floor of the same building housing the respondent's operations. Hankoff urged them to trust him and made a further effort to convince them that what- ever grievances they might have could best be settled through dealing directly with Louis Katz. No definite agreements were arrived at during these conferences, and the respondent made no concessions until after a meeting of the stock and shipping representatives with Louis Katz on or about October 27. On the morning of October 21, 1937, union circulars announcing a meeting to be held that night were distributed to the respondent's employees as they entered the plant. Helen Ruderman, examining- room employee, testified that as the women were changing to their working clothes, Freida Frank, supervisory inspector of the various departments employing women with authority to hire and discharge, entered and warned them not to attend the union meeting, adding : "If I never was a rat I will be one now." Frank denied making these statements or ever having spoken to the women employees about union matters or any particular union. The Trial Examiner credited Ruder- man's testimony, and in view of Frank's evasive and frequently trans- parently untrue testimony, we find that she questioned the employees on this occasion as to their intention to attend the union meeting and made the self-characterization of her conduct testified to by Ruder- man.20 During the same morning, the girls in the packing depart- 80 By thus questioning employees as to their attitude toward the Union ( and, as we shall point out below, by questioning them at other times as to their union affiliation and activi- ties), the respondent engaged in unfair labor practices within the meaning of Section 8 (1) of the Act. See Matter of Foote Brothers Gear and Machine Corporation and United Office and Professional Workers of America, No. 24, 14 N. L. R. B. 1045, and cases cited in footnote 24 therein. 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment were called into the office of their foreman, Moe Brodsky, by Mack Setchen, supervisory manager of all girls in the plant. Setchen questioned them as to whether or not they had been asked to join the Union, and if so, not to be afraid to tell him.21 No one volunteered a reply, and he went on to state that there was no need for their going elsewhere for assistance, since he had always been and would continue to be fair with the girls. Early that afternoon, at the request of Swan, Setchen ordered all the women employees working in other departments situated on the various floors of the plant to assemble in the examining room on the second floor. Approximately 150 girls were present, including both piece and time workers, the time workers 'suffering no loss in pay. Also present were, Frank and Foreladies Pauline Prince, Yetta Gold, and Anna Nasta. Swan testified that "the management got together when they heard of certain rumors of dissatisfaction, and requested me to speak to the girls and express the views of the management in that connection." Louis Katz testified that when he appointed Phil Katz, Swan, and Hankoff to investigate the existence of any grievances among the respondent's employees following the reported attendance of the stock and shipping employees at the union meeting on October 16, he delegated Swan "to personally speak to the girls." Swan further testified that in addressing the girls he told them that the management had been advised of some dissatisfaction in "certain de- partments," and stated that the management was already negotiating with two departments that had grievances and "was ready to do the same thing with all other departments that might have had anything to complain about, or requests to make." Swan then suggested the election of departmental representatives to present to him "whatever complaints they had" so that he might be able to discuss them with Louis Katz. Accordilig to the testimony of Ruderman and Ruth Horowitz, a packing-room employee, Swan stated that the C. I. .O. was a bunch of "racketeers," requiring the payment of $8.00 a month in dues, and that there was no need to join the Union or any other "outside" organization. They also testified that in addition to sug- gesting the election of departmental representatives to meet with the management, he told them they could form 'an "inside" or "company" union. Swan denied calling the C. I. O. a bunch of racketeers or men- tioning any dues, but admitted that he "just told the girls it didn't matter who represented them as long as they were honest, that in various groups where they were organized groups, the American Fed- eration of Labor or the C. I. 0., or anyone that Dewey investigated, proved that everything was not rosy and honest . . ." Although 21 See footnote 20, supra. QUALITY ART NOVELTY 'COMPANY, INC. 829 Swan further denied advocating the formation of a company union, he admitted stating in response to a suggestion made by one of the employees that a company union be formed that the respondent had no objection to a "company" or "shop" union. At the close of Swan's speech, Ruderman and Feld, another examining-room employee, raised the question as to union representation, which brought forth objections from some of the other employees. Swan testified that he quieted the protest, and replied that grievances "could be adjusted with the man- agement just as well in this way (departmental representatives) as through outside sources . . . without any difficulty or differences." Sophie Horowitz, packing-room employee, then spoke against the C. I. 0. stating that they did not need assistance from any outside union, and Gertrude Silver, examining employee, declared that the girls were satisfied and that all they "had to do was follow what Mr. Swan said." When Swan suggested that a vote be taken to determine their choice as to the A. F. of L., the C. I. 0., or a company union, Ruderman protested that such a vote could be properly conducted only by the National Labor Relations Board, and the suggestion was there- upon abandoned. Setchen also spoke to the girls following Swan's speech, stating that he also was just an employee and that he had always been fair in protecting their interests. He told them to have faith in what Swan had, said and stated that he saw no reason why' they could not, all "get together." Setchen testified that Swan told the employees that since the respondent had always treated them fairly they "would be able to do the right thing by continuing to deal with the house." By this statement, Setchen understood that the employees should deal with the respondent "without benefit of an outside organization." Swan offered no justification for admittedly interjecting into his speech reference to the Dewey investigation, and it is apparent from his own testimony that he sought thereby to iden- tify nationally affiliated unions as rackets. We find, as did the Trial Examiner, that he made the remarks deprecatory to the Union to which Ruderman and Ruth Horowitz testified..22 Indeed, by propos- ing that the employees elect representatives from among themselves to ascertain what grievances existed and to present them to the respond- ent, Swan clearly conveyed to the employees that the respondent at least regarded "outside" representation as unnecessary and that the respondent preferred to deal with representatives who were them- 22 By such remarks the respondent clearly interfered with , restrained, and coerced its employees in their right to self-organization . See Matter of Lucuray, Inc. and Interna- tional Ladies' Garment Workers' Union, 16 N. L. R. B. 37 ; Matter of The Yale d Towne Manufacturing Company and Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge No. 1647, through. the Steel Workers Organizing Commit- tee, affiliated with the Committee for Industrial Organization, 17 N. L. R. B. 666. 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD selves its employees.23 By making the proposal, the respondent en- gaged in unfair labor practices within the meaning of Section '8 (1) of the Act.24 Moreover, although not in so many words directed to the organization upon a formal and permanent basis, Swan's proposal was in substance for the formation of an "inside" labor organization.25- The question as to whether the respondent had no objection to a "com- pany union" was obviously evoked by Swan's speech; and Swan's answer removed any possible doubt that the questioner correctly gauged the implications of his statement. The suggestion by Swan that a vote be taken to determine the choice of the employees cannot be regarded as an expression of the respondent's indifference. Where, as in the instant case, such a suggestion follows immediately upon an employer's expression of hostility to "outside" organizations, preference for and proposal of an "inside" organization, employees are left in no doubt that what is sought is not an expression of free choice but a confirmation of the wishes of their employer. As we have often pointed out, the holding of such an election by an employer under such circumstances interferes with, restrains, and coerces employees in the rights guaranteed them by Section 7 of the Act.26 We are of the opinion that the proposal of an election, though aborted by the assertion of their rights by some employees, is nonetheless an unfair 'labor practice. On the same afternoon that he addressed the women employees, Swan also held a meeting with the employees in the press department, at which, as appears from his own testimony, he expressed the "atti- tude of the management" as previously stated to the women employees. Swan testified that this was only a "courtesy meeting" because the respondent "knew they (pressmen) were satisfied and had no demands to make," a conclusion which he predicated upon the fact that, accord- 23 This also was the plain import of Setchen's speech. 84 See Matter of Acme Air Appliance Company , Inc. and Local No. 1228 of the United Electrical Radio & Machine Workers of America, C . I. 0., 10 N. L. R. B. 1385, 1390; Matter of W. F. & John Barnes Company and United Automobile Workers of America, Local Union No. 432, 12 N. L. R. B. 1028, 1034. m Section 2 (5) of the Act defines a labor organization as "any organization of any kind , or any agency or employee representation committee or plan. In which employees participate and which exists for the purpose, in whole or in part, of Cealing with em- ployers concerning grievances , labor disputes, wages, rates of pay , hours of employment, or conditions of work." Of course what is here said with reference to the import of Swan's proposal is equally applicable to the proposal made the day before to the stock and shipping departments. 26 See Matter of Northrop Corporation and United Automobile Workers, Local No. 229, 3 N. L. R. B. 228, 234; Matter of The Heller Brothers Company, of 1 ewconrerstown and International Brotherhood of Blacksmiths, Drop Forgers, and Helpers, 7 N. L. R. B. 646, 657; Matter of Automotive Maintenance Mach4neryyi Company and Steel Workers Organiz- ing Committee on Behalf of Amalgamated Association of Iron, Steel & Tin Workers of North America, Lodge 1744, 13 N. L. R. B. 328; Matter of Laird, Schober Company, Inc. and United Shoe Workers of America, 14 N. L. R. B. 1152; cf. Matter of J. Wise & Sons Company and United Electrical, Radio & Machine Workers of America, 12 N. L. R. B. 601, 614. . QUALITY ART NOVELTY COI'rPANY, INC. . 831 ing to him, the pressmen were earning more than the rate sponsored by the American Federation of Labor.27 Shortly after the meeting in the examining room, the women em- ployees held elections in their respective departments for the purpose of selecting representatives in accordance with Swan's suggestion. While Ruth Horowitz and Blanche Jonas were discussing unionism, prior to the election in the packing and labeling departments, Pauline Paulker, another employee, called in Setchen and told him that the election was being disrupted by this discussion, whereupon Setchen announced that they were there for the purpose of electing repre- sentatives and not for a discussion of unions. In the election which followed, Paulker and Sophie Horowitz were chosen to represent the packing and labeling employees as a single department. The election in the examining . room resulted in the selection of Ruderman and Anne Seidelman. That same afternoon, all the women representa- tives were instructed to consult the employees in their departments as to grievances and then meet as a group in the salesroom office with Swan and Setchen.28 The respondent had been requested to permit the stock and shipping representatives to meet jointly with the repre- sentatives of the women employees, but it refused to grant permission with the statement that each department would be dealt with individually. In addressing the women representatives, Swan reiterated the state- ments made in his speech in the examining room, and stated that the A. F. of L. representatives were "gent.lemen" because, according to Swan, when they visited the plant they decided that the respond- ent's treatment of its employees did not warrant any attempt to or- ganize. When he finished speaking, Paulker spoke in favor of forming a shop union and stated that there was no need for an outside organization to represent them. A general discussion of grievances was held at the meeting, but it led to no definite commitments by the respondent. As the representatives were returning from the sales office, Prince -asked some of them if they had settled their grievances, and further queried: "You are not going to the meeting tonight, are you?" refer-. ring to the union meeting previously announced. When some of the girls replied in the negative, Prince said: "Girls, thank you very much. I certainly appreciate it." 29 That evening, Prince, Frank, and Setchen admittedly stopped in front of the union headquarters n Swan was the only witness who testified regarding - his speech to the press employees. 28 Korn and Frankel, salesmen for the respondent , were also present at this meeting. 29As we have pointed out above ( footnote 21), such interrogation was in violation of the rights of employees under the Act. Likewise violative of their rights was Prince's declaration of "appreciation " of the answer of some that they did not intend to attend the meeting of the Union. 832 DECISIONS . OF : NATIONAL LABOR RELATIONS BOARD to see who attended the meeting. Prince testified that "for curiosity's sake I wanted to know who was going in." Frank's explanation was that "we were curious to see what was going on." Setchen's version was that when they saw the crowd of employees they were "interested in what the employees had or were doing, so we stopped and then we started gathering information from individuals who passed by." Although Prince denied discussing the meeting prior to their stop- ping, Setchen admitted that he had discussed it with Prince and Frank during the day, but could not "recall" what they had said. As we have pointed out above, earlier in the day Frank had warned the women not to attend the meeting and Setchen had interrogated them as to whether they had been asked to join the Union. In view of these facts, the further fact that Prince, Frank, and Setchen discussed the meeting during the day, and the respondent's conduct prior to and following the meeting, we are satisfied and find that the afore- mentioned supervisory employees engaged in surveillance of the union meeting in order to determine which employees were attending. Such conduct, particularly following the expression of the respondent's hostility to the Union, patently constituted interference with the rights of employees guaranteed by Section 7 of the Act. On October 22, 1937, the following day, in accordance with their custom, the girls from the various departments gathered in the exam- ining room during the lunch hour for a "wedding party" for two of the women employees soon to be married. Irving Goldstein took this opportunity to make a speech to the girls urging their membership in the Union and advising resistance to intimidation. Prince, who told him to stop, stating, "we don't allow any speeches held on the premises," became excited and telephoned Setchen. Shortly there- after Louis Katz and Phil Katz came into the examining room.30 Prince told Phil Katz that Ruderman was the cause of all the trouble, and he reprimanded Ruderman for starting a "commotion" in the plant. The record fails to show that Ruderman was in any way responsible for Goldstein's speech, or that she had participated in the incident except that she had asked Frank whether or not Goldstein had a right to speak and had been told by Frank to "shut up." Phil Katz told Goldstein he was discharged, but Louis Katz intervened and took Goldstein outside in the corridor near the gravure department, where he told him that many of the employees were against the C. 1. 0. and that "if anyone ever made any attempts to interfere with Mr. Louis Katz, they would be hurt." Katz further told Goldstein that he should "mind his own business" and asked him what right he had 80 Both Louis and Phil Katz testified that they had been called to the examining room by a telephone call from an unidentified person. QUALITY ART 'NOVELTY ICOM'PANY, INC. 833 "to come into the plant and make a disturbance." 81 Goldstein then accompanied Katz to an office on the third floor, where they were joined by Hankoff. Goldstein had been studying accountancy, and Hankoff told him that he was a college man and "should not associate with these people," and that if he had a bad record the character committee of the school would not grant him a degree. On the morning of October 22, Charles Lindenman, press employee, with permission of his foreman left his two helpers in charge of the automatic press which he operated and with Victor Tepeilke, another press employee, went to a restaurant near the plant to telephone George Glassgold, an attorney.32 The purpose of the telephone call was to make arrangements for Glassgold and Herbert S. Klein, his associate, to address a meeting of departmental representatives to be held that, afternoon at the Thompson Diner.33 Lindenman testified that upon learning of the intention of the C. I. O. to organize the plant he had telephoned Glassgold 2 or 3 days prior at the suggestion of one Wen- dell Weiss, a friend of, Glassgold's, for information regarding the organizing of a shop: union, and that-this initial contact with Glass- gold was made without first discussing it with any. of the press em- ployees. Lindenman testified that he took this step to prevent or- ganization by the Union, because as far as the pressroom was con- cerned "there was really nothing that the C. I. O. had that they could offer to do for is, because as long as we had been working, any time that we did have any grievances, . . . we were always able to do it ourselves ... we didn't need anybody to talk for us, or do anything for us." We shall defer consideration of the credibility of Linden- man's testimony until we have reviewed the events of the next few days. At 3:30 that afternoon, Lindenman, Tepeilke, and Dominick Rigante and James Smyth, pressroom employees, went to the, various departments. to summon the representatives to the Diner meeting. At Lindenman's request, Prince called Ruderman and Seidelman from their work, and Lindenman told them to go to the Diner, that there was "something to be discussed." Lindenman also spoke to Sophie Horowitz, packing-room representative, who testified that he did not tell her the nature of the meeting, but that Brodsky, her foreman, granted permission for her to leave.34 .Horowitz further testified that 81 Louis Katz testified that it was his understanding that Goldstein had been "destroy. ing the people's minds of some kind against their work there . . . stirring up trouble among themselves . . . demoralizing their minds." M Lindenman testified that,it was customary to leave his work without permission of the foreman, and that he lost no pay so long as his press was not idle. s3 Also referred-to in the record as the Ideal Diner. 54 It appears from Horowitz's testimony that there was a rule against leaving the build- ing during working hours, and that this was the reason she asked Brodsky 's permission to leave. 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD she understood beforehand that the meeting had concerned the forma- tion of a shop union, the girls having discussed it that day.' She also stated that she had previously expressed her preference for a shop union to Prince and Lindemnan, and that they agreed with her, stat- ing that "they were going to form a shop union." As Ruderman, Seidelman, and Anna Feld, representative of the cellophane depart- ment, were leaving the plant for the Thompson Diner, Phil Katz asked Ruderman where she was going. When she replied that Prince had told them to attend the meeting, he said : "Miss Prince, if Miss Prince told you, all right, and go ahead." All the departmental representatives who had conferred with Swan the day before were present at the meeting. The stock and shipping representatives were-also informed of the meeting by two of the afore- mentioned pressmen, but were shortly afterwards ordered not to at- tend. Lindenman and Tepeilke represented the press department, al- though there is no showing in the record as to how and when they were selected by the press employees. Klein and Glassgold addressed the group, disparaged the Union, and described the benefits that in their opinion were to be derived from the formation of a shop union of their own. Ruderman and several others favorable to the Union expressed their opposition to these statements and asserted that they did not want a company union and would decide for themselves what organization would represent them. They then asked Klein and Glassgold who had sent them there and who was paying for their services. To this question, the attorneys replied that they had been called by some of the pressmen who had heard about "the work they were doing in other shops" and were requested to assist in the forma- tion of a shop union among the respondent's employees. When Ruderman came to work the following morning, Saturday, October 23, Prince stated to her that the girls in the examining de- paItment no longer wanted her to act. as their representative, because she "had been talking a lot about the C. I. O." and was not "really representing the girls." Ruderman testified that she replied to Prince that if the girls "felt that way they could come and tell me about it, and that it was none of her (Prince's) affairs who was delegate of the department." Ruderman further stated that she then turned to the girls and asked if they were satisfied with her as their repre- sentative, to which they replied in the affirmative, and nothing further was said. Prince testified that 3 or 4 of the 30 girls in the examining department had told her as a group that Ruderman was not wanted as their representative and that they thought it was her duty as head of the department to so inform Ruderman. According to Prince, when these girls told her "we don't want Helen" she understood they were speaking for the whole department. Gertrude Silver, who spoke 'QUALITY ART NOVELTY - COII'PANY, INC. 835 in support of Swan's suggestions at the October 21 meeting, testified that she was one of the girls who told Prince they did not want Ruderman as a representative. At about 10: 30 that same morning, the women employees were sent by their supervisors to the examining room where Frank an- nounced that a vote was to be taken as to what union they desired. In the presence of Frank and Prince, Lindenman, who was accom- panied by Smyth and Tepeilke, told those assembled that the press- room employees were not in favor of the Union, and that he was there to determine if they wanted to join the shop union which they proposed to form, or if they wanted to join the C. I. O. with the stock and shipping departments. Minnie Goldstein, examining-room employee who testified for the respondent, stated that Lindenman's stuttering made it difficult for the girls to understand him, so Prince repeated what he had said. Ruth Horowitz then protested that the girls did not have sufficient information concerning any union to make a choice and was answered by Frank to the effect that since she had attended the union meeting on October 21 she could tell them about it.3e Following his address, Lindenman and the other two pressmen conducted a secret ballot. However, the results thereof were not made known because, so Lindenman testified, "some wrote C. I. 0., some wrote Shop Union, and some wrote no union, some said Yes, some said No, and it was hard to determine just what they meant by the yes and no votes." Prince testified that when she asked Lindenman "who gave him permission to speak to the girls" that he told her he had the consent of the "management." Linden- rnan denied telling Prince that he had obtained such permission, and asserted that he merely told the heads of the departments that he "wanted to speak to the girls." Lindenman further denied that Prince or Frank were present during the balloting. Prince and Frank made no denial of their presence when the vote was taken, and in view of the testimony of Goldstein and Horowitz, we find that they were present. At about 10 minutes before noon that same Saturday, October 23, the girls in the examining room were told by Supervisor Frank to stop work and go to a meeting at a given address near the Sherry Building.86 The girls in the packing department were "advised" of the meeting shortly before noon 37 by their foreman, Moe Brodsky, and the meeting was attended by Louis Kaye, substitute foreman in 3' We have pointed out above that Frank had engaged in surveillance of the union meet- ing. By malting the remark to Horowitz . set forth in the text , she plainly informed the employees that the respondent had engaged in such surveillance. M The meeting place was referred to in the record as Huebner 's Hall, Huebner 's Bar and Grill , and Frank's Diner. n'' This was half an hour or more before the usual quitting time. 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the box-assortment department, Foreladies Gold and Nasta, Mannie' Solomon, timekeeper and paymaster, and Harry Horowitz, a buyer for the respondent. Indeed, Setchen and Frank were present out- side the meeting, apparently in anticipation of the motion by Ger- trude Silver for their admittance. The motion was defeated. How- : ever, when Ruderman protested against the presence of foreladies at the meeting, she was told that they were entitled to be there as well as any of the other employees." The stock and shipping-room employees, among whom there was strong sentiment for the Union, had not ' been informed of the meeting, but on learning of it after they had gathered for a union meeting elsewhere, they adjourned to' attend. Lindenman testified that due to the confused results of the ballot, several. of the press employees thought it best to hold a meeting of all the employees to discuss the organization of a shop union. Linden= man and Dominick Rigante, another pressman, further testified that they furnished the $20 with which Tepeilke and Smyth rented a meet- ing.place. The discussion of the meeting, the hiring of the hall, and the notification of the other employees by Lindenman and his assistants, all took place during working hours. Smyth, who was a time worker, testified that he lost no working time when he left the plant to rent the meeting hall. A majority of employees from all departments attended the meeting, and the discussion centered around the forma- tion of a shop union, Gertrude Silver and Danny Kayser, pressroom employee, speaking in favor of an organization of their own and expressing hostility towards the Union. A motion to permit a union representative to address them was lost. As the meeting adjourned, those leaving were handed application cards bearing the title "Quality' Art Shop Union," and further stating: "We the above signed do not want any affiliation in any outside union." This was the first appearance of the Intervenor's name, which according to the testimony of Lindenman had been decided upon by himself and Robert Quinones, another press employee. - On Monday, October 25, Ruderman. was transferred from the examining department to the box-assortment department. Prince testified that she overheard Ruderman say : "H'm! I hate her !" and that she told Ruderman : "Helen, my feelings are mutual." Prince then called Setchen and requested that Ruderman be transferred. Ruderman protested to Setchen that she had merely remarked to an- other girl that she disliked Prince, and asserted Prince was requesting her transfer because she had been talking in favor of the Union. 38 No explanation was offered for the presence of Kaye, Gold, Nasta, Solomon, or Horo- witz at the meeting ; or for the presence of Setchen and Frank outside. As we have noted above. Silver admitted she had discussed with Prince and Lindenman the formation of a "shop union." QUALITY ART NOVELTY 'COM'PANY, INC. 837 Setchen then called over two other foreladies who were passing by and asked them if they did not think it fair to transfer Ruderman to another department. They replied that they had never been insulted, one stating that "when a girl isn't just so, we speak to the girl and somehow she apologizes, or she sort of comes around," although they both agreed with Setchen that a transfer would be fair. That after- noon Ruderman was transferred by Setchen to the box-assortment department, where she was more or less separated from the other girls. Ruderman protested her transfer to Klein at a meeting of the Intervenor the next day, stating that she had been transferred be- cause of her "talking for the C. I. 0." Following the meeting, Sophie Horowitz, who later became vice president of the Intervenor, spoke to Klein and upon his advice saw Louis Katz the following day, October 27. Horowitz testified that she told Katz that due to the cur- rent talk about the transfer being discriminatory, it would be "much better" to have Ruderman reinstated in the examining department, and that he agreed to do so. Ruderman was transferred back to the examining room that same day. Prince testified that Ruderman was required to apologize as a condition of returning to her former job. Ruderman, on the other hand, denied that she had apologized, and testified that Prince had told her she could come back if she "would be good" and "not discuss unionism during working hours." When Ruderman returned to the packing department Prince placed her at a table directly in front of Prince's desk, although Ruderman had formerly worked in the rear of the room. Upon her return, Ruderman learned that Minnie Goldstein and Sydelle Hoffman, who had been nominated but failed of election on October 21, were acting as representatives for the examining-room employees. Both Prince and Goldstein testified that the change in representatives.had taken place at an election held before Ruderman's transfer to the box-assortment department. According to Goldstein, the election took place during' working hours. Prince at first stated that she did not know when the election took place, but later testified that she had been informed of its occurrence but at the time was in her office "half a block" away. However, Goldstein's version of the incident was that while some of the girls were speaking to Prince on October 22, others addressed the rest of the employees and "right then and there they voted," and that Ruderman was "in the ladies' room at the time." 30 89 The claim by Goldstein that Ruderman was out of the room at the time the alleged vote was taken would not account for the fact that Ruderman did not learn until October 27 that she had been displaced as representative. For Goldstein testified that on the day of her election she circulated among the girls to ascertain their grievances, conferred with Louis Katz concerning them, and reported to her fellow employees the results of the conference. 283031-41-vol. 20-54 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find unpersuasive the respondent's explanation for Ruderman's ouster as one of the representatives of the examining-room employees and her transfer to the box-assortment department. On October 21 Ruderman's protest had resulted in the abandonment of a poll of employees sought to be held by the respondent immediately following the expression of its hostility towards the Union and its desire and preference for an inside organization. During the election of de- partmental representatives, the respondent had stopped discussion of unions, and on the following day had prevented Irving Goldstein from making any rejoinder to Swan's speech of October 21, even though the latter had spoken-during working hours, whereas Gold- stein sought to speak ' during the lunch -period. On this occasion Ruderman, because of her inquiry as to whether Goldstein had a right to speak, had not only been told by Frank to "shut up," but had been pointed out by Prince to Phil Katz as responsible for the "commotion," and had been threatened with discharge by Katz. That afternoon Ruderman had not only expressed her opposition to the formation of a "shop union," which the respondent had plainly indicated was acceptable to it, but had by her questions come close to declaring that she believed the respondent responsible for the projected "shop union." While such conduct on her part might have displeased some of her fellow employees, the significant fact, is that it was not they but Prince who the next morning purported to communicate this alleged change in sentiment."' Moreover, Prince's attempt to place herself away from the scene of the election allegedly thereupon held is belied by Minnie Goldstein's account of the election and, like Goldstein's alleged recollection that Ruder- man was "in the ladies' room at the time," was, we are satisfied, a transparent attempt to account for the fact that Ruderman had no knowledge of the choice of a successor until after she had been transferred to and retransferred from the box-assortment depart- ment.41 Furthermore, Ruderman's remark as to her feelings toward Prince, alleged to be the reason for her transfer, was manifestly a protest against Prince's actions toward her on account of her activi- ties on behalf of the Union and her opposition to a "shop union." 42 40 We note that Gertrude Silver, who testified that she was one of the group who told Prince that they did not want Ruderman as a representative, admitted she had at least as early as the day before been told by Prince and Lindenman that "they were going to form a shop union." 41 See footnote 39, supra. Goldstein was an obviously untruthful witness. Despite the admissions of Swan to the contrary, Goldstein testified that she was "positive" that neither a "shop union" nor a "company union" was mentioned at the meeting held by Swan on October 21, and stated that she did not "remember" Swan saying "anything about unions" or making any remarks concerning the racketeering disclosed by the Dewey investigation. 42 No claim is made that there were any personal difficulties between Ruderman and Prince. QUALITY ART NOVELTY 1001APANY, INC. 839 We need not decide whether Ruderman's remark might, in other circumstances , be regarded as exceeding the bounds of proper dis- course. Certainly it was a slight expression as compared with the peremptory vulgarity of Frank's command to "shut up." When Louis Katz was advised that the transfer was causing an unfavorable reaction as the result of Rudernian 's statements at the meeting to organize the Intervenor , she was returned to her former position,. but under special observation by Prince who warned her that she "be good" and "not discuss unionism during working hours," al- though no such inj unction was placed . upon employees active on behalf of the Intervenor. We conclude upon these facts, and upon the entire record , that the transfer was occasioned by Ruderman's assistance to the Union and her opposition to the Intervenor. On October 26, the day following Ruderman 's transfer, the girls were instructed by Prince to leave their work shortly before 5 p. in., their regular quitting hour, to attend a meeting of the Intervenor at Volkert's Hall. As they passed the time clock , they were handed circulars by Henry Goldberger , folding-department employee, which bore the heading , "First Meeting of the Quality Shop Union," and <umounced that the meeting would be held at 5 p. m. Circulars were also distributed by Goldberger to the shipping and stock em- ployees at 4:30 that afternoon, but Hankoff told them that they would be "docked" for the time lost if they attended. Their cus- tomary quitting time was 5 : 30 p. in., and consequently none attended until after working hours . A majority of the employees attended the meeting, and Foreladies Gold and Nasta and Mike Savitt , stock- room foreman, were also present. John Sarno , press employee, acted as chairman of the meeting , having been selected by the organizing committee of the Intervenor 2 days before . After Sarno opened the meeting, Klein and Glassgold made substantially the same speeches :as- they had made at the Thompson Diner on October 22, again dis- paraging the Union and stating that "the advantages of an independ- cnt organization were far in excess of those of an outside union." In the course of his address, Klein mentioned a. "little, dark-haired ;girl" who was opposing the formation of the Intervenor, and Ruder- man announced that she was the one to whom he was referring. As previously stated , it was at this time that Ruderman protested that her transfer was occasioned by her union activity, but she was told by Klein that he was sorry but could do nothing about it. Ruderman then made inquiries as to where the membership applications were printed, who had paid for them, who constituted the organizing committee of the Intervenor, and what right the attorneys had to tell them the type of union they wanted. While she was speaking, one of the attorneys began distributing copies of the Intervenor's 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD constitution. Ruderman then asked him who had framed the con- stitution, and was told that it was a copy of one used in another shop which he had organized. Ruderman was admonished to sit down by one of the press employees, but instead walked to the plat- form where she asked the employees if they were going to permit themselves to be intimidated by the undemocratic procedure. of the meeting which did not allow them so much as to elect their own chairman. Ruderman testified that shortly afterwards "75 or 80 percent" of those present walked out of the meeting. Thereafter, the meeting adjourned without adopting the constitution.43 On October 27 Louis Katz sent a notice addressed "TO OUR EMPLOYEES" to the various departments in the plant requesting that their "duly appointed representatives" arrange for an interview with him for the purpose of discussing their grievances. This notice was sent 2 days after Katz had received a telegram from the Com- mittee for Industrial Organization stating that it had been designated by the employees as their agent for collective bargaining and request- ing ing that negotiations be opened 44 For several days after October 27 Katz met with the departmental representatives. The stock and shipping representatives who were the last to present their demands again stated their preference for union representation and asked for a written contract. Katz replied with a request for proof that the Union represented at least "a good part" of the plant before dealing with it, and a statement to the effect that his word was as adequate as a contract. At the conclusion of these conferences the first week in November the respondent granted wage increases in those depart-; ments which had expressed dissatisfaction, together with shorter hours. The packing and press employees, which allegedly had expressed satisfaction with their present earnings, were not included in the wage increase. Louis Katz testified that "immediately" after meeting with the stock and shipping representatives the raises agreed - upon were put into effect. As we have noted above, the proposal for the selection of depart- mental representatives, and the conferences with them beginning on October 18, followed promptly upon discovery by the respondent that the Union was organizing its employees. Now, on the heels of a 93 Relative to the failure to adopt the constitution at this meeting , the minutes of the Intervenor state that "After a considerable period of confusion various members left the meeting room . . . As the hour was late it was impossible to read the entire constitution and to pass any amendments relating to the adoption of the constitution." 94 On the same day, the respondent in reply wrote that it was "ready to negotiate with its own employees or representatives of their own choosing ," and that it would be glad to consider "evidence that our employees have placed their interests in your hands." On October 26, 1938, the Committee for Industrial Organization filed its petition under Sec- tion 9 ( c) of the Act which named "Quality Art Shop Union (a company union )" as also claiming to represent the respondent 's employees. QUALITY ART NOVELTY 'COMPANY, INC. 841 demand by the Union for a meeting, employees were advised by a written notice over the signature of Louis Katz that "I feel there are no differences that cannot be ironed out to the satisfaction of all con- cerned" through the "appointed representatives of each department." We believe it clear that the notice, and the granting of better wages and hours shortly thereafter, were intended to impress upon the -employees again the respondent's position that no outside organiza- tion was necessary and to discourage and forestall affiliation with and continue membership in the Union. The respondent's action was, we find, an interference with the employees' right of self-organization 45 On October 30, 1937, pursuant to notice contained in mimeographed postcards sent by its organizing committee to employees "who had signed the membership books on Tuesday, October 26th and to such other persons who in the opinion of the committee or members might desire to attend the meeting with a view towards becoming a member of the Union," the Intervenor held a business meeting for the purpose of adopting the constitution and electing permanent officers. According to the minutes of this meeting, a motion was passed to proceed with the election of officers and to defer the adoption of the constitution to a later date. As a result of the election, Joseph Aramanda, press- room employee, became president, Charles Lindenman declining the nomination. Sophie Horowitz, packing-department representative, was elected first vice president, and Minnie Goldstein, who had replaced Ruderman as representative of the examining room, was chosen recording secretary. James Smyth was elected financial secre- tary. Evidence as to the subsequent adoption of the Intervenor con- stitution is contained in the minutes of a meeting of the newly elected officers on November. 1 which state that "it was determined that at any general meeting it would be impossible to read paragraph by paragraph of the proposed constitution and in view of the fact that each member of the Union had a copy of the constitution and the matter had been widely discussed by the members of the Union, it was determined that upon the selection of an executive committee that such executive committee adopt the constitution subject to amend- 45 See Matter of American Manufacturing Company, et at. and Textile Workers' Organ- izing Committee, C. 1. 0., 5 N. L. It. B. 443 , enf'd, National Labor Relations Board v. American Manufacturing Company, et al., 106 F . (2d) 61 (C. C. A. 2) ; Matter of McNeely & Price Company and National Leather Workers Association, Local No. 30, of the C. 1. 0., 6 N. L. R . B. 800, enf'd as mod., National Labor Relations Board v. McNeely & Price Com- pany, 106 F. (2d) 878 (C. C. A. 3) ; Matter of Stackpole Carbon Company and United Electrical & Radio Workers of America, Local No. 502, 6 N. L. It. B. 171, enf' d as mod., National Labor Relations Board v. Stackpole Carbon Company , 105 F. (2d) 167 (C. C.'A. 3), certiorari denied , 308 U. S. 605; Matter of American Potash & Chemical Corpora- tion and Borax & Potash Workers' Union No. 20181, 3 N. L. R. B. 140, enf'd , N. L. R. B. v. American Potash & Chemical Corporation, 98 F. (2d) 488 (C. C. A. 9), cert . den., 306 U. S. 643. I 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ments that would be presented at the subsequent meeting." 46 The Intervenor's minutes further state that Aramanda told the officers at this November 1 meeting that the departments had already been notified to send a delegate to represent them on the executive com- mittee; and that at an executive committee meeting held the next day, November 2, the departmental representatives presented "credentials" showing that they were qualified to represent their respective depart- ments. Although the constitution provided that members of the executive committee, which included the officers of the Intervenor, were to be elected to office, the record fails to show when or how the above-mentioned representatives were chosen. It appears, however, that the executive committee was composed of employees from but 5 of the 15 or 16 departments in the plant, and that 4 of the 5 women members employed in the packing and examining departments were those selected as representatives following Swan's address on October 21. Of the remaining 12 members of the executive committee, 10 were from or did work closely connected with the press department, although the employees they purported to represent constituted less than one-fifth of the 380 persons employed by the respondent 4? On November 11, 1937, the Intervenor requested the respondent to recognize it as the bargaining representative, and on November 16 the respondent entered into negotiations with the Intervenor pending the checking of the signatures contained in the membership book sub- mitted by the Intervenor on that date. Louis Katz testified that a -"card system and a book system" of the Intervenor were checked by the respond'ent's timekeeper for verification of signatures and found to substantiate the Intervenor's claim to a majority membership among the respondent's employees. No evidence was offered as to the date when the alleged check was made, and the Intervenor's minutes nowhere refer to the submission of any cards.48 Following several conferences 48 According to the minutes of a general meeting of the Intervenor on December 3, "the matter of the tentative adoption of the constitution was explained to the membership and request was made by the Board ( sic) for a ratification of the various steps taken by the president , the other officers and the various committees which had been functioning up to the time of this meeting," whereupon it was "duly resolved" that such prior acts "be accepted by the membership and be ratified and confirmed." y' Six of the 10 members were pressmen , and the other 4 were engaged in blocking and pick-up work which was supplemental to the operation of the presses . The respondent's pay roll for October 1937 lists 63 employees in the press department, 4 in the blocking department, and 5 in the miscellaneous department assigned to pick-tip work . The remain- ing two members of the executive committee were also in the miscellaneous department, which includes floorboys and porters. 98 Emanuel Solomon, timekeeper , did not testify as to the check of the union records allegedly made by him, and the Intervenor introduced into evidence only the membership book which contained no information as to when ' the signers thereof ' became members. Joseph Aramanda, the president of the Intervenor, testified that there existed no record as to the dates of membership, and that the receipt books showing the payment of dues had been destroyed . He offered no explanation as to what had become of the application cards for membership in the Intervenor and did not testify that they had ever been sub- mitted to the respondent. QUALITY ART NOVELTY COMPANY, INC. 843 between-representatives of the respondent and the Intervenor relative to wages, hours, and working conditions, according to the Intervenor's minutes, a proposed contract in final form was submitted to and adopted by the membership at a general meeting on December 3, the negotiating committee being authorized to sign on behalf of the Inter- venor and "in the event it be necessary, to make minor changes with reference thereto .11 4° A contract between the respondent and the Inter- venor was finally signed on December 10, 1937, covering all but the art 5e and office employees. The contract granted a 40-hour week, confirmed the various wage increases granted in November, and granted increases in some additional departments.,' It also provided that regular employees, those having been employed not less than 8 months in each calendar year, would be entitled to seniority in the hiring, re- taining, promotion, lay-off, discharge, and rehiring, of employees, giv- ing proper consideration to skill and efficiency. Prior to the execution of the Intervenor contract the respondent had followed no system of seniority, had made no distinction between temporary and permanent employees, and had based its employment policy solely upon whether an employee was a "good worker." In addition to provisions cover- ing general working conditions, the contract accorded preference in promotions, lay-offs, and rehiring to members of the Intervenor. At the time of the hearing, the office employees had become members of the Intervenor and -a contract similar to that outlined above was exe- cuted by the respondent with respect to that department. That the respondent in granting contracts to the Intervenor was merely con- tinuing the policy adopted at the time it expressed its opposition to the Union is evident from the admission in the respondent's brief that "these men and women received more than what they asked for, more than they could have gotten by tying up with the A. F. of L. or C. I. 0., in wages and shorter hours, vacations, etc." 2. Conclusions We have pointed out above that upon discovering that employees in the stock and shipping departments were organizing on behalf of the "It was at this meeting that the adoption of the constitution by the executive commit- tee was likewise ratified. See footnote 46, supra. 60 The employees in the'art department did not join the Intervenor . Aramanda testified that he had spoken to "one or two" of the art employees who told him that they were "free lance" artists and did not want to join any union because "they felt they could do better by themselves." The art employees were not involved in the prior negotiations conducted by the respondent with the various departmental representatives. 6+ No increase was granted to the 5-0, 3-0, and cutting division of the press department, or to the cellophane , packing, stripping, and cabinet departments ; November increases in shipping, stock, labeling, maintenance, blocking, floorboys, and sample departments were confirmed ; and increases granted to the die cutting , Simplex, Miehle , and Kelly divisions of the press department, and to the examining , box-assortment , and counting departments. 844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . Union, the respondent by disparaging the Union , by urging that such an organization was unnecessary in order to secure fair treatment, by proposing the election of departmental committees , and by treating , with such committees , immediately set out to obstruct affiliation with the Union. We have also noted that as soon as the Union came into the open by circulating notices of a- meeting the respondent repeated these tactics in the women's departments and in the pressroom. We have further found that in the women's departments the respondent questioned employees as to whether they had been solicited to join the Union and warned them against attending the meeting of the Union, and, after forcefully expressing hostility to the Union and approba- tion of a "company" or "shop" union, sought to hold an election , which, in view of the circumstances under which it was conducted, further interfered with , restrained, and coerced the employees ; that during the conduct of the elections of departmental representatives the respondent prohibited any discussion of unionism , again making clear that the scope of permissible employee action was limited to the choice of per- sons to act within the scheme proposed by the respondent , and did not extend to a consideration of the merit and desirability of such a pro- cedure; and that at the meeting of the Union following the end of the workday, the respondent engaged . in open surveillance. We have al- ready observed that by the foregoing acts the respondent interfered with, restrained , and coerced its employees in the exercise of their rights guaranteed by Section 7 of the Act. They are no less significant in tracing the formation of the Intervenor. We have pointed out above, Lindenman, who is alleged to be the prime mover in the formation -of the Intervenor, claimed that 2 or 3 days before October 22, without consulting any other employees, he telephoned attorneys for information concerning the formation of a shop union and that during the morning of October 22 , lie again tele- phoned these attorneys to arrange for them to address a meeting of the departmental representatives that afternoon . We think it plain that this account of the beginnings of the Intervenor is not entitled to credence . It is inconceivable that without the prior knowledge and consent of the respondent , Lindenman on October 22, would have ar- ranged for a meeting to be held off the respondent 's premises during working hours, to attend which it was necessary for employees to receive the consent of their supervisors . Moreover, the respondent's foreknowledge is disclosed by the admission of Sophie Horowitz that prior to receiving notice of the meeting she had discussed the forma- tion of a shop union with Lindenman and with Prince, a supervisory employee, and had been told by them that "they were going to form a. shop union." Indeed, that Lindenman acted at the instance of the respondent, while unnecessary to a determination as to the character QUALITY ART NOVELTY COMPANY, INC. 845 of the Intervenor, is clearly indicated not only by the foregoing but also by the absence of any explanation by Linderman as to the source of his alleged information 2 or 3 days prior to October 22 as to the organizational plans of the Union, by his alleged consultation of an attorney and initiation of a shop union without conferring with any of his fellow-employees and, so fax as his testimony goes, solely because he felt that the pressroom employees had nothing to gain from the Union. In any event, whether or not the respondent prompted Linden- man to undertake the formation of a "shop union," it is clear, as we have stated, that before he had arranged for the first organizational meeting he had received assurance of assistance and support by the respondent, and the record establishes beyond any doubt that. such assistance and support were thereafter forthcoming. As we have seen, Irving Goldstein was prevented on October 22 from speaking to the women employees during the lunch hour in favor of the Union, was threatened with discharge for having at- tempted to do so, and Ruderman was sharply reprimanded for even suggesting that Goldstein was within his rights. In sharp contrast, during the afternoon of the same day Lindenman and his pressroom associates were permitted to go through the, plant summoning the departmental representatives to a, meeting to be held outside during working hours to launch the organization of a shop union. Such discriminatory treatment of the protagonists of rival proposals con- stituted a further indication of the respondent's opposition to the Union and its approval of a shop union. Moreover, on the following day the discrimination was made even more patent by not only per- mitting Lindenman to exhort the employees inside the plant during working hours in favor of a "shop union," but also by the fact that the meeting followed the pattern of the one addressed by Swan 2 days before: The employees were again assembled by their super- visors, and, after being addressed, were asked to ballot. That they were told they might vote for the Union or for the "shop union," does not obscure the obvious implications of the situation, that the respondent wished them to favor the latter organization. Indeed, that Lindenman was the spokesman for, or at least spoke the senti- ments of, the respondent was further evidenced by Prince's role in assisting him because of his speech defect. We conclude that the incident was not only directly obstructive of the Union's campaign but was tantamount to open sponsorship by the respondent of the shop union to be organized under Lindenman's leadership. In fact, such sponsorship had been manifested the day before by the occur- rences to which we have adverted above, as well as by the additional circumstance that the representatives of the stock and shipping de= partment, who were strongly in favor of the Union, were ordered 846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not to attend the meeting to consider the organization of the "shop union." The organizational meetings of the Intervenor on October 23 and 26 so closely follow the pattern of the meeting of October 22, as to require little further comment. They differed from the earlier meet- ings in two respects : First, while the stock and shipping-room em- ployees were again absent, their absence was achieved by other means. On October 23 they were not informed of the meeting (al- though employees in the other departments were notified by their supervisors), and on October 26 they were threatened with a dock in wages (whereas no such threat was made to employees in other departments). Second, the respondent's supervisory employees at- tended the meetings on October 23 and 26. There is no evidence that these supervisors attended because of any desire to become mem- bers of. the Intervenor, or under the impression that they were eligi- ble to membership.12 In the absence of any explanation for their presence at the meeting, and in the light of the preceding events, and upon the entire record,63 we think it clear, and we find, that the supervisory employees attended the meetings at the instance of the respondent. We further conclude that their presence was, upon the facts of the case, a flagrant instance of domination of the forma- tion of a labor organization. We found above that the respondent's actions with respect to Ruderman on October 23, 25, and 27, and its vigorous resumption and consummation of negotiations with the departmental representa- tives following the Union's communication, constituted interference with the rights of employees under the Act. Ruderman's transfer was clearly expressive of the respondent's determination to penalize employees who opposed the formation of a shop union. Although the penalty was later revoked, the revocation was due to the fact that the transfer had resulted in a situation adverse to the proposed shop union. Both the transfer of Ruderman and the retransfer sub- ject to open surveillance, were tantamount to declarations of support of the shop union by the respondent. .54 62 The statement made in the text is subject to the qualification that with respect to Louis Kaye, substitute foreman in the box -assortment department, the record shows that he became a member of the organizing committee of the Intervenor and later resigned on October 30 because of his occasional assumption of supervisory duties. 63 As we have noted above , Ruderman objected to the presence of the supervisors at the meeting on October 23 . The members of the Intervenor record that the same afternoon the organizing committee arranged to meet with their attorney , to draft a constitution for the Intervenor, and that this was begun on October 24. Among those present on this occasion were Sarno , who presided at the next meeting of the Intervenor on October 26, and•Aramanda and Rigante who were also present at the meeting of October 26. None of them objected to the presence of the supervisors at the October 26 meeting, although the proposed constitution which was distributed at the meeting expressly excluded from membership foremen and foreladies. 11 As was the discriminatory discharge of Ruderman on November 26, 1937, discussed in Section III B, infra. QUALITY ART NOVELTY 'COMPANY, INC. 847 The wage increases and shorter hours granted to the departmental . representatives encouraged and furthered the formation 'of the shop union. That they intended to have that effect, as well as directly to undercut the attractiveness of the Union is, we find, fully established. :Such also, we find, was the respondent's purpose in entering into a contract with the Intervenor. As we have found above the respond- ent entered into negotiations with the Intervenor before ascertaining the legitimacy of the Intervenor's claim to a majority status. There- after, it granted the Intervenor exclusive recognition and entered into a, preferential-shop contract although it was fully aware of the existence of union membership among its employees, and despite the formal claim by the Union on October 25 that it had been designated as their bargaining agent. While the respondent claims that it thereafter checked the records submitted by the Intervenor, those records , obviously afforded no assurance against overlapping mem- bership in the Union and in the Intervenor. Indeed there is no evi- dence that the alleged check was made prior to December 3, at which time employees were advised of the proposed contract and, in effect, warned that their employment would, by reason of the preferential provision therein, be jeopardized by non-membership in the Inter- venor. Furthermore, the respondent's action in entering into a signed agreement with the Intervenor was in complete contrast to its refusal of such a demand when made by its stock and shipping employees, and the agreement with the Intervenor granted even more favorable working conditions than those which the respondent re- jected as "unjust" and "too high" when requested by the stock and shipping employees. Certainly the Intervenor has demonstrated no militancy or economic power which might account for such a volte- face on the part of the respondent. On the other hand, by granting such concessions, the respondent manifestly intended to impress its employees with the greater effectiveness of the Intervenor as their bargaining agent. In addition, as we have stated, the agreement provided that preference be given to members of the Intervenor in the promotion, lay-off, and rehiring of its employees. These prefer- ential provisions were patently designed to still further strengthen the Intervenor by compelling the employees to become members in the interest of their employment.55 We find that the respondent, by its activities described above, has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act; and has dominated " As noted in footnote 49, supra, the adoption of the constitution by the executive com- mittee and the draft of the contract already negotiated with the respondent were submitted for ratification at the same general meeting held by the Intervenor on December 3. That the contract had the effect intended is apparent from the ease with which the Intervenor then obtained a ratification of the prior acts of its officers, including the irregular adop- tion of the constitution by the executive committee. 848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and interfered with the formation and administration of the Inter- venor and has contributed support to it. The contracts described above, having been made with a labor organization established, main- tained, and assisted by the unfair labor practices of the respondent, and indeed executed for the purpose of stabilizing anti insuring the continuance of the respondent 's creature , were in violation of the Act and are therefore illegal and void.5s B. The disehaerges Helen Rudermani was first employed by the respondent in May 1936, and following a temporary lay-off was rehired in May 1937. Except for her brief transfer to the box-assortment department in Octo- ber 1937, Ruderman was employed in the examining department until her discharge on November 26, 1937. Shortly before Ruderman's discharge, Prince accused her of mixing the texts in a carton of work and so informed Frank. Frank re- examined the cards in the packing department to which they had already been sent, but reported that she found no errors. On the morning of November 26, the day following the Thanksgiving holi- day, Frank reprimanded Rucerman for counting while examining.J7 Shortly thereafter Frank summoned Ruderman to the packing depart- ment where she found Frank examining 4. carton of cards which Ruderman had completed the day before Thanksgiving. The carton had originated in the bowing department where, after the fastening of bows, the cards had been rubber-banded into packages of 12 and sent to the examining room for final counting and the elimination of defective work. At Frank's request, Ruderman counted a. "few" of the packages and found that they contained, as Ruderman testified, "nine, sevens, and so forth, anything but twelves." Frank testified that the shortage had been brought to her attention by Ruth Horowitz, who was packing the cards, and that she had then examined "about twenty- five" of the 125 or 130 packages in the carton and had found that all were "short" in count. Sally Selnick, who worked near Horowitz, corroborated Frank's testimony as to the discovery of the error. How- ever, Horowitz denied, finding the cards miscounted, asserting that Frank herself had noted the shortages when checking her work, and her testimony that she was not required to count cards in her work as a packer was uncontradicted. se See Matter of Diamond T Motor Car Company and International Union United Auto- mobile Workers of America, 18 N. L. R. B. 204. m Although the respondent's rule was that the counting and examining of greeting cards should not be performed in the same operation , both Prince and Frank testified that it was common practice among the girls to disregard the rule. QUALITY ART NOVELTY 'COMPANY, INC. 849 When Ruderman stated that she could not explain the miscount, Frank told her she was discharged and called Setchen to inform him of the incident. Setchen testified that when he came into the packing room he also examined "three or four" additional packages and like- wise found them lacking the required number of cards. Upon leaving the packing department, Setchen went to the examining room to which Ruderman had returned and where she was completing some unfin- ished work, confirmed the discharge by Frank, and accused Ruderman of deliberately committing the error to put the respondent "out of business." Ruderman then demanded a.n interview with Louis Katz.es Setchen testified that at the interview with Louis Katz, he informed Katz that Ruderman had miscounted 125 or 130 of the packages con- tained in the carton and that previously she had been "called down quite a few times" concerning the quality of her work. Ruderman testified that she protested to Katz that she "couldn't understand what it was all about . . .," and that she did not think it was fair to be discharged since "it was the first time that anything like that had actually occurred" as far as she could remember. Katz, accepting Setchen's account of the incident, then told Rudellnan : "Is it possible you would do a thing like that? Do you know what a crime that is?" and proceeded to point out the injurious consequences to the respond- ent's business of such a serious miscount. Katz refused to countermand her discharge, but suggested to Ruderman the name of a friend who might give tier employment because, as he testified, "I hate to see people out of work." Setchen testified that he made no further investigation of the error discovered in the packing department either before or after he accused Ruderman of sabotage and had her discharge confirmed by Louis Katz because when questioned Ruderman had "shrugged her shoulders" and replied : "I don't know how it happened." This, Setchen testified, convinced him that she had deliberately miscounted the packages. He further testified that there had been no doubt in ae Setchen testified that before accompanying Ruderman to Katz's office, he told Prince to have Ruderman's work reexamined and that thereupon Prince gave a carton of work which Ruderman had examined that morning to Henrietta Mehler, examining-room employee, for reexamination. Mebler testified that Setchen himself picked up the carton of work from Ruderman's table and, gave it to her to reexamine, and that she found "very, very few" were counted correctly and that some of the cards were defective. Mehler further testi- fied that she "counted out loud" because she "didn't want to be the only one" to find an error in Rudermau's work, and that she later told Ruderman of the errors she had found. Gertrude Kahn, another examining employee, testified that she heard Mehler counting the cards. Setchen testified that Prince informed him of the result of Mehler's reexamination after he and Ruderman had interviewed Louis Katz. Ruderman did not testify as to this alleged reexamination of her work, and other than the foregoing testimony there is no evidence in the record as to whether the carton of cards allegedly recounted by Mehler was examined by Ruderman that morning or was part of the work completed by Ruderman 2 days prior, before the Thanksgiving holiday. As appears below, Ruderman was not discharged on the basis of this alleged count. 850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his mind as to Ruderman's guilt because "It happens this number was one number I was after: I rushed the goods through . . . That was a rush number brought up from the examining department, put right on the girls' floor, practically without any handling ex- cept by the boy who takes it off the truck." Brodsky, foreman of the packing department, testified that after the cartons were brought on a truck to his department from the examining room he distributed them among the packing employees without any further examina- tion of the cartons. Other than this testimony, no evidence was adduced to account for the specific whereabouts of the carton of work in question between the time Ruderman completed her examina- tion thereof on November 24 and the time the discrepancy in the number of cards in the carton was discovered on November 26. In view of the discrepancy between the number of cards which properly should have made up a package and the number that were found in the packages which had been examined by Ruderman, it seems clear that the difference is not to be accounted for as the result of a casual error. Ruderman was, Prince admitted, "an average em- ployee" and she was described by Frank as being "as good a worker as the other girls in the examining room." In view of her com- petence, and her considerable experience, we do not believe the con- dition of the packages in question may be attributed to any oversight on her part. Nor was she discharged upon any such ground. Rather Setchen at once accused her of sabotage, designed to injure the re- spondent. We are, however, neither persuaded that Ruderman had deliberately passed bad work nor that the respondent discharged her under the apprehension that she had done so. On the contrary, we conclude, the evidence establishes that the. respondent discharged her because of her union activities and her opposition to the Intervenor. As previously stated, Ruderman had availed herself of every op- portunity to promote the Union and had opposed every effort by the respondent to enlist support in behalf of the Intervenor. As a result, as we have pointed out, the respondent openly reprimanded her for questioning its refusal to permit Goldstein to address the women employees, transferred her to another department and effected her removal as examining-room representative, and, upon retransferring her to her former job, subjected her to overt surveillance and warned her against further union activities. Thereafter, Prince constantly watched Ruderman's work, went out of her way to reprimand Ruder- man for not adhering to rules not observed by other employees, and shortly before her discharge had accused her of improper work and caused the work to be reexamined by Frank. To anyone in. Ruder- man's position it was apparent that cards in the condition of those QUALITY ART NOVELTY 'COM'PANY, INC. 851 which allegedly explain her discharge were most likely to be detected, and probably before they had even been taken from the examining room. We are also impressed by the fact that the record discloses no motive for any sabotage on the part of Ruderman. Certainly mo- tive is not established by the fact that defectively examined merchan- dise would be injurious to the respondent's business. The record affords no basis for concluding that Ruderman thought that such a result would further her efforts on behalf of the Union and in oppo- sition to the Intervenor. Counsel for the respondent suggests in his brief that Ruderman, described by him as "this C. I. O. organizer" and as "the chief of the C. I. O. squad in the plant," about Novem- ber 27 "realized that the factory would not subscribe to the formation of a union which was to be a C. I. O. affiliate" and that "her activity was motivated by her spleen and anger in being unsuccessful in delivery (sic) this factory into the hands of the C. I. 0." The con- clusion that Ruderman engaged in spite work because the Union had failed to organize the employees rests solely upon the argument of counsel. There is no evidence that at the time of Ruderman's discharge the Union had abandoned its efforts to organize the re- spondent's employees, or that it regarded further efforts as useless. Moreover the character of Ruderman's prior activities indicate a forthrightness which hardly squares with the personality which counsel for the respondent pictures. On the contrary, Ruderman's persistent conduct in the open despite a reprimand and transfer in- dicates that she was not a person who would resort to such indecisive and futile tactics. As we have found above, the respondent had not only hindered and obstructed the Union but had sponsored, encouraged, assisted, and supported the formation of the Intervenor, and had in fact set in motion Linderman who undertook its organization. We have also found- that the constitution of the Intervenor had, not at the time Ruderman was discharged been proposed to the employees for adop- tion. Indeed, only one general meeting had been held by the Inter- venor since the meeting on October 26 when Ruderman for the third successive time had attacked the formation of the shop union ; and at the meeting held on October 30, it had been "found impossible . . . to elect one delegate from each department" in the respondent's plant as provided in the proposed constitution of the Intervenor.'° Thus far, as the respondent well knew from its supervisory employees who had W In fact, there is no evidence In the record which establishes that the Intervenor by November 26 had any substantial membership , and that It did not Is indicated by the fact. that the constitution was not submitted for a vote until December 3 when the proponents of the Intervenor were abel to offer the inducement of a contract which provided for sub- stantial improvements In wages and working conditions. 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD attended the meetings on October 23 and 26, the attempt to organize the employees in the Intervenor had been seriously impeded by Ruder- man's activities. The respondent had every reason to believe that Ruderman would continue her opposition to the formation of the Intervenor which had not yet succeeded in adopting a constitution. In view of the respondent's part in the formation of the Intervenor, as well as its hostility to the Union and its prior actions with respect to Ruderman, we think motive on its part to discharge Ruderman because of her activities on behalf of the Union is clearly shown. We find Setchen's explanation for his conclusion that Ruderman had deliberately miscounted the cards entirely incredible. Her an- swer, in response to his question, that she did not know "how it hap- pened" was plainly as consistent with her innocence as with her guilt.. Yet upon the basis thereof Setchen claims he reached his determina- tion that she had engaged in sabotage. Moreover, as we have noted, Setchen made no further investigation before notifying Ruderman that she was discharged, and her discharge was finally confirmed by Louis Katz solely upon the basis of Setchen's report to hint. As stated above, when Louis Katz confirmed Ruderman's discharge, he offered to secure her a job with a friend of his. The offer, we believe discloses that the respondent was fully aware that Ruderman had not engaged in sabotage, and that the respondent was intent upon get- ting rid of her because of her activities on behalf of the Union and in opposition to the Intervenor. For the reasons stated above we. found that Ruderman did not en- gage in sabotage. The fact remains, however, that the condition of the cards was plainly clue to intentional conduct on the part of some person. The evidence points to the respondent as that person, and certainly affords the basis for reasonably inferring. that the respond- ent tampered with Ruderman's work in order to obtain an excuse for discharging her.60 In any event, since, as we have concluded above,, the respondent did not entertain any belief that Ruderman had engaged in sabotage, we have no doubt, in view of the other cir- cumstances which we have reviewed, that the respondent discharged her because of her union activities and her opposition to.the Inter- venor, and we so find. We find that the respondent has discriminated in regard to the hire and tenure of employment of Helen Ruderman, thereby dis- couraging membership in the Union and encouraging membership in 00 We take into consideration the possibility that some fellow employee seeking to op- pose the Union or to further the Intervenor might have wished to place Ruderman in such a situation . The record indicates , however, that no one not closely identified with the. management would have had the opportunity to tamper with Ruderman 's work, or would have had any assurance that the conditions of the cards would promptly be discovered after they had reached the packing department. QUALITY ART NOVELTY 'COMPANY, INC. 853 the Intervenor. We further find that the respondent thereby has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Irving Goldstein, Edzvc?rd Axelrod, Kelnnan Korten, and Lester Cohen were employed in the stock and shipping departments of the respondent at the time of their lay-off. Goldstein and Korten had first been employed in the shipping department in 1935 and 1936, respectively, and Axelrod and Cohen received their initial employ- ment in the stock department in 1934 and 1935. All four men were members of the Union. Cohen was. laid off on March 9, 1938, and Goldstein, Korten, and Axelrod on March 10, 1938. The lay-off of these employees occurred.. during the usual seasonal reduction in per- sonnel, and other employees who had worked for the respondent a shorter time were retained because they were members of the Inter- venor. The respondent seeks to justify their lay-offs solely on the ground that they were made pursuant to its contract with the Inter- venor whereby the respondent was required to accord preference to members of the Intervenor. The Trial Examiner found that the dismissal of the complainants was occasioned not only by their non-membership in the Intervenor but also by their union activities. Whether the finding is sustained by the evidence in so far as it attributes the lay-offs to the union activities of these employees, we need not determine, for upon the admitted facts, the complainants were laid off by reason of a contract. with a labor organization which we have found was company domi- nated ; moreover, the contract in question had itself been entered into as a means of establishing, maintaining, and assisting in the for- mation of the Intervenor'and to insure its continuance. The contract, therefore, afforded no justification for the lay-offs. The respondent asserts in its brief that Goldstein, Axelrod, Korten, and Cohen, were reinstated at the commencement of the seasonal rush period in July 1938. At that time, the respondent states, the list of Intervenor's members was exhausted, and it was, therefore, free to employ non-members. We shall assume for the purpose of our decision that such reinstatement took place as alleged. Since the respondent considers its contract with the. Intervenor to be in full force .and effect, the reinstatement was not an unqualified one, but subject to the limitation that preference would, as before, be given to members of the Intervenor with regard to promotions, lay-offs, and rehiring. Reemployment under such an illegal condition is obviously discriminatory and encourages membership in the Inter- venor and discourages membership in the Union; such reemployment merely ends, for the time being, the loss of wages and requires only 283031-41-vo l. 2 0--5 5 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that that circumstance be taken into account in determining the remedy for the unfair labor practice 61 When discharged Korten was earning a weekly wage of $18, Cohen. $14, Goldstein $19; and Axelrod $15. At the time of the hearing,. Korten, Cohen, and Goldstein had not received other employment. Axelrod had been temporarily employed on May 23, 1938, earning; $14 a week. We find that the respondent discriminated in regard to the hire- and tenure of employment of Irving Goldstein, Edward Axelrod,. Kelman Korten, and Lester Cohen, by laying them off in accordance with the terms of its contract with the Intervenor, thereby encourag- ing membership in the Intervenor and discouraging membership in the Union. We further find that the respondent thereby interfered with, restrained, and coerced- its employees in the exercise 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 above, occurring in connection with the operations of the respond- ent, described in Section I above, have a close, intimate, and sub- stantial relation to trade, traffic, and commerce among the several States and with foreign countries, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It is essential in order to effectuate the purposes and policies of the Act that the respondent be ordered to cease and desist from cer- tain activities and practices in which we have found it to have engaged and, in aid of such order and as a means for removing and avoiding the consequences of such activities and practices, "that it be directed to take certain affirmative action, more particularly described below. We have found that the respondent has dominated and interfered with the formation and administration of the Intervenor and con- tributed support to it. The respondent must cease and desist from such practices. Moreover, the effects and consequences of the re- spondent's domination, interference with, and support of the Inter- venor as well as continued recognition by the respondent of the Intervenor as the bargaining representative of its employees, con- 81 Cf. Matter of J. .keenebaum Tanning Company and National Leather Workers Asso- ciation, Local No. 43, affiliated with the C. I. 0., 11 N. L. R. B . 300; Matter of Electric Vacuum Cleaner Company, Inc. and United Electrical & Radio Workers of America,. Local 720, 18 N. L. R. B. 591. QUALITY ART NOVELTY COM'PANY) INC. 855 stitute a continuing obstacle to the free exercise by its employees of their right to self-organization and to bargain collectively through representatives of their own choosing. The Intervenor has been utilized by the respondent as an instrumentality to defeat the rights of its employees under the Act. Because of the respondent's illegal conduct with relation to it, the Intervenor is incapable of serving the respondent's employees as their genuine collective bargaining agency. Accordingly, we will order the respondent to disestablish and withdraw all recognition from the Intervenor as the representa- tive of its employees for the purposes of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, and conditions of employment. We have also found that on Decem- ber 10, 1937, and thereafter, the respondent entered into agreements with the Intervenor and that the contractual relationship existing thereunder has been a means whereby the respondent utilized an employer-dominated labor organization to frustrate self-organization among and defeat collective bargaining by its employees. Under these circumstances, any continuation, renewal, or modification of the agreements between the respondent and the Intervenor would per- petuate the forces which have deprived employees of the rights guaranteed to them by the Act and would render ineffectual.. other portions of our remedial order. We shall therefore" -direct' "the re= spondent to cease giving effect to any contract existing, or claimed by it to exist, between it and the Intervenor, or to any modifications or extensions thereof. 62 We have also found that Helen Ruderman was discharged, and that Irving Goldstein, Edward Axelrod, Kelm'an Korten,.and Lester Cohen, were laid off, as the result of unfair labor practices. We shall order the respondent to offer to these employees immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and to make them whole for any loss of pay they have suffered by reason of their respective discharge or lay-off by pay- ment to each of them of a sum equal to the amount which he would normally have earned as wages from the date of such discharge or 02'See N. L. R. B . V. Newport News Shipbuilding & Dry Dock Company, 60 S. Ct. 203, rev'g101.F. (2d) 841 (C. C. A. 4), modifying and enforcing Matter of Newport News Shipbuilding and Dry Dock Company and Industrial Union of Marine and Shipbuilding Workers.-of America, 8 N. L. R. B. 866 ; N. L. R. B. v. Stackpole Carbon Company, 105 F. (2d) 167 (C. C. A. 3), modifying and enforcing Matter of Stackpole Carbon Company and United Electrical & Radio Workers of America, Local No. 502, 6 N. L. R. B . 171 ; certiorari denied, 308 U. S. 605; N. L. R. B. v. Pennsylvania Greyhound Lines, Inc., et at., 303 U. S. 261; N. L. R. B. v. Pacific Greyhound Lines, Inc., 303 U. S. 272; N. L. R. B. v. Oregon Worsted Company, 96 F. (2d) 193 (C. C. A. 9) ; N. L. R. B. v. American Potash & Chemical Corporation, 98 F. (2d ) 488 (C. C. A. 9), certiorari. denied , 306 U. S. 643. 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lay-off to the date of the offer of reinstatement, less his net earnings 93 during said period. By engaging in unfair labor practices, the respondent has made serious incursions upon the rights guaranteed to its employees by the Act. In order to insure the full freedom of the respondent's employees to exercise those rights, it is essential that they be informed that the respondent will no longer engage in its unfair labor prac- tices and that it will act in conformity to the provisions of our Order. We shall therefore direct the respondent to post notices stating that it will cease and desist from certain conduct specified in our Order and that it will take the affirmative action therein required. THE PETITION In view of the length of time that has elapsed since the filing of the petition for investigation and certification of representatives and the uncertain state of the evidence with respect to the issue of the unit appropriate for the purposes of collective bargaining, we will dismiss the representation proceedings without prejudice to the filing of a new petition. 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 Paper Workers, L. I. U. No. 292, and Quality Art Shop Union are labor organizations within the meaning of Section 2 (5) of the Act. 2. The respondent, by dominating and interfering with the forma- tion and administration of Quality Art Shop Union and contributing support thereto, has engaged in and is engaging in an unfair labor practice, within the meaning of Section 8 (2) of the Act. 3. By discriminating in regard to the hire and tenure of employ- ment of Helen Ruderman, Irving Goldstein, Edward Axelrod, Kelman Korten, and Lester Cohen, thereby discouraging membership in United Paper Workers, L. I. U. No. 292 and encouraging member- ship in Quality Art Shop Union, the respondent has engaged in 18 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 Amer- ica. Lumber and Sawmill Workers, 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 suns due the employee, and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects. QUALITY ART NOVELTY COIIPANY, INC.-857 -and is engaging.in an unfair labor practice, within the meaning of Section 8 (3) of the Act. 4. The respondent, by interfering with, restraining, and coercing ,its employees in the 'exercise of the rights guaranteed by Section 7 of the Act, has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2 (6) and .(7) 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 respondent and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) In any manner dominating or interfering with the adminis- tration of Quality Art Shop Union, or with the formation or admin- istration of any other labor organization of its employees, and from contributing support to Quality Art Shop Union or to any other labor organization of its employees; . (b) Discouraging membership in United Paper T orkers, L. I. U. No. 292, or any other labor organization of its employees, by dis- criminating in regard to their hire and tenure of employment or any terns or condition of employment; (c) Giving effect to its contract of December 10, 1937, with Quality Art Shop Union, or any renewal thereof, or to any other agreement regarding the terns and conditions of employment at any time made with the said labor organization; (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective, bargaining or other mutual aid and protection, as guaranteed in Section 7 of the Act. 2. To take the following affirmative action which the Board finds will effectuate the policies of the Act,: (a) Offer to Helen Rudernan, Irving Goldstein, Edward Axelrod, Kelman Korten, and Lester Cohen, immediate and full reinstate- ment to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges; (b) Make whole Helen Ruderman for any loss of pay she may have suffered by reason of her discharge by the respondent, on November 26, 1.937, by payment to her of a sum of money equal to that which she would normally have earned as wages from the date 858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of her discharge to the date of such offer of reinstatement, less her net earnings during said period, deducting, however, from the amount otherwise due said employee, monies received by said em- ployee during said period for work performed upon Federal, State, county, municipal, or other work-relief porjects, and pay over the amount so deducted to the appropriate fiscal agency of the Fed- eral, State, county, municipal, or other government or governments which supplied the funds for said work-relief -projeots; (c) Make whole Irving Goldstein, Edward Axelrod, Kelman Korten, and Lester Cohen, for any loss of pay they may have suf- fered by reason of their lay-off in March 1938, or by reason of any subsequent lay-off pursuant to any contract with the Intervenor which conditioned the terms or tenure of employment upon membership therein, by payment to each of said employees of a sum of money equal to that which each would normally have earned as wages from the date of such lay-off or lay-offs to the date of such offer of rein- statement, less his net earnings during such period or periods, deduct- ing, however, from the amount otherwise due to each of the said employees, monies received by said, employee during said period or periods for work performed upon Federal, State, county, municipal, or other work-relief projects, and pay over the amount, so deducted, to the appropriate fiscal agency of the Federal, State, county, munici- pal, or other government or governments which supplied the funds for said work-relief projects; (d) Withdraw all recognition from Quality Art Shop Union as the representative of any of its employees for the purposes of deal- ing with the respondent concerning grievances, labor disputes, rates of pay, wages, hours of employment, or other conditions of employment, and completely disestablish said organization as such representative; (e) Immediately post notices to its employees in conspicuous places throughout its plant and maintain such notices for a period of at least sixty (60) days from the date of posting, stating that the re- spondent will cease and desist in the manner set forth in paragraphs 1 (a), (b), (c), and (d) ; that it will take the affirmative action set forth in paragraphs 2 (a), (b), (c), and (d) of this Order, and that. its employees are free to join and remain members of the United Paper Workers, L. I. U. No. 292, and that it will not discriminate against any employee because of membership or activity in 'said labor organization ; (f) Notify the Regional Director for the Seond Region in writing within ten (10) days' from the date of this Order what steps the respondent has taken to comply herewith. QUALITY ART NOVELTY COMPANY, INC. 859 IT IS FURTHER ORDERED that the complaint, as amended, be, and it hereby is, dismissed, without prejudice in so far as it alleges that the respondent discriminated in regard to the hire and tenure of employ- ment of Blanche Jonas and Jerome Berent. AND IT 18 FURTHER ORDERED that the petition for investigation and certification of representatives filed herein, be, - and it hereby is, dismissed without prejudice. MR. WILLIAM M. LEISERsON took no part in the consideration of the above Decision and Order.