The North Electric Manufacturing Co.

In the Matter of THE NORTH ELECTRIC MANUFACTURING COMPANY and INTERNATIONAL ASSOCIATION OF MACHINISTS , LOCAL 1151 Case No. C-1130.-Decided June 10, 1940 Telephone Equipment Manufacturing Industry-Interference, Restraint, and Coercion : effect of respondent's anti-union acts determined by natural and prob- able consequences ; allegedly beneficent motives of employer immaterial ; poll of union sentiments of employees ; anti-union statements and circulation of anti- union petition by supervisory employees ; publication of newspaper advertisement implying labor organization employed by competitor to destroy respondent ; conduct in connection with and at meeting with union requesting recognition; selection of employees to attend as observers ; disregard of union's objection tb attendance of observers ; broadcast of proceedings to employees ; casting aspersions on union representative ; questioning jurisdiction of union to admit employees to membership ; declaring collective bargaining would be conditioned upon proof of union's jurisdiction ; other interference, restraint, and coercion, not established-Discrimination.: charges of, in regard to hire and tenure of em- ployment of one employee, not sustained-Employer Responsibility : anti-union conduct of superintendent and assistant superintendent , and subordinate super- visory employees ; minor supervisory employees : absence of power to hire and discharge and alleged eligibility to membership in union not determinative of; failure of employer to disavow and take action calculated to prevent recurrence of anti-union conduct by-Employee Status: determination of, as to superintend- ent, assistant superintendent, and "senior employees " allegedly exercising mana- gerial functions-Procedure : asserted unfairness of Intermediate Report raises no issue of prejudice where Board resolves issues of credibility without reference thereto; evidence introduced to show but held insufficient to establish inter- ference, not set forth in detail in view of detailed findings of other acts of interference. Mr. Harry L. Lodish, for the Board. Garfield, Cross, Daoust, Baldwin, & Vrooman, of Cleveland, Ohio, by Mr. Clare M. Vrooman and Mr. Vernon R. Burt, and Mr. Carl J. Gugler, of `Galion, Ohio, for the respondent. Mr. A. G. Sicun dor, for the Union. Mr. Bernard W. Freund, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon a charge and an amended charge duly filed by International Association of Machinists, Local 1151, herein called the Union, affili- ated with the American Federation of Labor, the National Labor Rela- 24 N. L. R. B., No. 52. 547 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions Board, herein called the Board, by the Regional Director for the Eighth Region (Cleveland, Ohio), issued its complaint dated October 11, 1938, against The North Electric Manufacturing Company, Galion, Ohio, herein called 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) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and notice of hearing thereon were duly served upon the respondent and the Union. Concerning the unfair labor practices the complaint alleged (1) that the respondent discriminatorily discharged Charles Pfleiderer, an employee, on or about March 26, 1938, and thereafter refused to rein- state him, for the reason that Pfleiderer joined and assisted the Union and engaged in concerted. activities with other employees in the re- spondent's plant for the purposes of collective bargaining and other mutual aid and protection; (2) that the respondent, at various times before, during, and after January 1938, (a) ridiculed the Union and applied derogatory remarks and names to the Union and its members, (b) advised, ordered, and persuaded its employees not to join or become interested in the Union, (c) questioned its employees as to their union affiliation for the purpose of influencing them in their self-organiza- tion, (d) stated that union activity would result in lower earnings, (e) placed unreasonable restrictions on union activity, (f) granted increases in pay to non-union employees for the purpose of discourag- ing union activity, (g) indicated that union activity had deprived certain employees of promotion and other privileges, and (h) assured its employees that their jobs would be more secure without union affiliation; and (3) that, by the above-described conduct and by other acts, the respondent interfered with, restrained, and coerced its em- ployees in the exercise of their rights guaranteed in Section 7 of the Act. On October 15, 1938, the respondent filed an answer in Which it denied that it had engaged in any activities constituting unfair labor practices, and denied that such activities affected commerce, as alleged in the complaint. At the same time the respondent filed a motion that the complaint be made more definite and certain with respect to the alleged unfair labor practices, and with respect to the officers and agents by whom they were alleged to have been committed., Thereafter, counsel for the Board advised the respondent, by letter dated October 18, 1938, that the alleged unfair labor practices occurred 1 The motion prayed, in the alternative , that a bill of particulars be furnished with respect to these allegations. . THE NORTH ELECTRIC MANUFACTURING COMPANY 549 chiefly during the first 4 months of 1938, and that the respondent allegedly engaged in the alleged unfair labor practices through 10 named officers or .agents.2 On October 22, 1938, the respondent filed a further motion, in which it averred that the information contained in the said letter of counsel for the Board did not make the complaint sufficiently definite and certain, and moved that its previous motion to make the complaint more definite and certain be considered as refiled and still pending. Pursuant to notice, a hearing was held at Galion, Ohio, from October 24 to November 3, 1938, before Thomas S. Wilson, the Trial Examiner duly designated by the Board. The Board and the respond= ent were represented by counsel; the Union was represented by an International representative; all participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. At the commencement of the hearing, the Trial Examiner denied the respondent's motion to make the complaint more definite and certain, previously filed, and at the same time stated, ". . . if respondent needs time because of the Examiner's ruling, it will be given reasonable time in which to prepare." Counsel for the respondent did not at any time during the hearing request an adjournment for the pur- pose of preparation, and at the conclusion of the hearing advised the Trial Examiner that sufficient time had been afforded to present the respondent's case. We hold that the complaint afforded a suf- ficient basis for apprising the respondent of the issues of fact it might be called upon to meet. Moreover, the record shows that the denial of the motion to make the complaint more definite and certain did not embarrass the respondent in its cross-examination of witnesses called by the Board; as stated above the respondent did not request an adjournment at the close of the Board's case; and the respondent's presentation of its case discloses that it had adequate opportunity for preparation thereof. The ruling of the Trial Examiner, denying the motion to make the complaint more definite and certain, is hereby affirmed. At the conclusion of the Board's case, the respondent moved that the complaint be dismissed. The Trial Examiner denied the motion. His ruling is hereby affirmed. At the conclusion of the hearing, the respondent renewed its motion that the complaint be dismissed. The Trial Examiner reserved his ruling upon this motion. At the same time, counsel for the Board moved to conform the complaint to the 2 The persons named were : F. R. McBerty , L. J. Davis . F. E. Bernard , A. H. Haspeslagh, H. A. Helfrich , E. A. Yeager, Paul Helfrich, J. H. Franks, W. E. Brown, and C. J. Lucius. We have conformed the spelling of the names to the record. 283035-42-vol. 24-36 550 ` DECISIONS OF NATIONAL LABOR RELATIONS BOARD proof. ' The Trial Examiner granted this motion. His ruling is hereby affirmed. During the course of the hearing the Trial Exam- iner made other rulings upon motions and upon objections to the admission of evidence. The Board has considered these rulings and finds that no prejudicial errors were committed. The rulings are hereby affirmed. At the close of the hearing the parties participated in oral argu- ment before the Trial Examiner, and thereafter the respondent filed a brief with the Trial Examiner. A stipulation for the correction of the transcript of the proceedings before the Trial Examiner was entered into by counsel for the Board and the respondent, and the ,corrections thereby agreed upon thereafter were made upon the face of the record. On January 19, 1939, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon the parties. In his report, the Trial Examiner denied the respondent's motion, made at the conclusion of the hearing, to dismiss the complaint. His ruling is hereby affirmed. The Trial Examiner found in his report that the respondent had engaged in unfair labor practices affecting com- merce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act, and recommended that the respondent cease and desist therefrom and take certain specified affirmative action to effectuate the policies of the Act. Thereafter, the respondent filed with the Board exceptions to the Intermediate Report, and a brief and a supplemental memorandum in support of its exceptions. Pur- suant to notice served on the parties, a hearing for the purpose of oral argument was held on November 30, 1939, before the Board in Wash- ington, D. C. The respondent and the Union were represented by counsel and participated in the argument. The Board has considered the exceptions to the Intermediate Report, and the respondent's brief and supplemental memorandum in support thereof, and, except in so far as they are consistent with the findings, conclusions, and order set forth below, finds the exceptions to be without merit. The Board has also examined and reviewed the record with respect to the respondent's charge of prejudicial conduct of the Trial Examiner during the hearing, and finds such charge to be without substance. We have carefully considered the further charge by the respondent that the • Trial Examiner's Intermediate Report presents a biased view of the evidence. We find it unneces- sary to pass upon this claim, since, in resolving issues of credibility, we have reached our determination in each instance upon the face of the record, and the alleged bias, therefore, presents no basis for any claim of prejudice. THE NORTH ELECTRIC MANUFACTURING- COMPANY 551 Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The . respondent, The North Electric. Manufacturing Company, is an Ohio Corporation with its plant located at Galion, Ohio. It is engaged in the manufacture of automatic electric selective apparatus, including telephone exchange systems, its principal product, and also stock-quotation systems, power-control systems, and small appliances. All of the respondent's products are manufactured to order. The respondent and the Automatic Electric Company, Inc., Chicago, Illi- nois, a competitor, are the sole suppliers of automatic telephone equipment to the approximately 6,800 independent telephone com- panies in the United States not included within the Bell System. The respondent advertises in two trade journals of Nation-wide circulation. During 1937, the respondent's sales of its products amounted to .$675,012.02, of which $580,216.84, or approximately 86 per cent, were shipped to destinations outside the State of Ohio. During the same period, the respondent's purchases amounted in value to $ 291,525.69. An analysis by the respondent of the principal raw materials used by it during 1937, amounting in value to approximately $104,600.00, dis- closed that approximately $88,400.00, or about 85 per cent of these materials, were shipped to the respondent's plant from points outside the State of Ohio. During 1937 the respondent entered upon a period of expanding production which continued to the time of the hearing; at the begin- ning of .1938 the number of the respondent's employees was approxi- mately.300, and at the time of the hearing the number had. increased to approximately 600. II. THE ORGANIZATION INVOLVED International Association of Machinists, Local 1151, herein referred to as the Union, is a labor organization affiliated with the American Federation of Labor, admitting to its membership employees of the respondent, and of other employers with plants located in and around Galion, Ohio. III. THE UNFAIR LABOR PRACTICES A. The respondent's supervisory' staff The complaint alleges that the respondent engaged in unfair labor practices by acts and statements of its officers and agents. There- after, as stated above, counsel for the Board, in advance of the hear- 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing, named as such officers acid,'agents F.• R. McBerty,- L." :Ji(Da'vis, F. E. Bernard, A. H. Haspeslagh, H. A. Helfrich, Paul Helfrich, E. A. Yeager, J. H. Franks, W. E. Brown, and C. J. Lucius. During the hearing, evidence was adduced to prove that the afore-mentioned persons and also J. C. Beck, Robert Spangler, and Donald Christman, employees of the respondent, had engaged in anti-union conduct. The Trial Examiner found that all of, those persons had engaged in such conduct, that they are supervisory employees, and that the re- spondent therefore is chargeable with the acts and statements of each of them. While the respondent excepted to such findings upon other grounds, which we consider below, it has raised no issue that the find- ings as to alleged supervisory status of Beck, Spangler, and Christ- man were outside the allegations of the complaint. Moreover, the issues were tried as to their alleged supervisory status. The com- . plaint is hereby amended to conform to the proof in these respects a The respondent's plant is a two-story building containing 35,000 feet of floor space. Metal parts are manufactured on the first floor in the punch-press department, the automatic screw-machine depart- ment, the lay-out and welding departments, the machine shop, and the annealing, plating, and finishing department. The tool and die department, the carpenter shop, and the boiler room are also located on this floor. .The parts made on the first floor are assembled in the assembly -department on the second floor, starting with sub-assem- blies and ending with the finished products. The stockroom and the wiring department are likewise on the second floor. Floor inspectors are stationed throughout the manufacturing and assembling depart- ments to inspect the parts and assemblies for quality at every stage, .and in addition inspectors in a separate "inspection department" and a force of "testers" inspect the sub-assemblies and the, finished products. . McBerty, president of the respondent, is the general manager over all its activities. Davis, the respondent's secretary and treasurer, is in charge of financial matters and of personnel relations. Subordinate to these two men, and responsible to them, are superintendents C. J. Murphy, R. J. Eise, and Bernard, and, under the latter, assistant superintendent Haspeslagh. Bernard and Haspeslagh are in charge of all the work on the first floor of the plant and in the assembly department on the second floor, with the exception of inspection work.4 Until about March 3, 1938, when a regular night shift was 3 See Section 10 (b) of the Act, and Article II, Section 7, of National Labor Relations Board Rules and Regulations-Series 2 , as amended. 4 Bernard is evidently the superintendent over the largest number of respondent's em- ployees, as is indicated by the fact that he alone has an assistant superintendent, a i ild by the further fact that approximately 100 persons were employed in the second-floor.assem- bling department alone in January 1938, and approximately 200 in August or September 1938. " ` , THE NORTH ELECTRIC MANUFACTURING COMPANY 553 started and Haspeslagh was put in charge of it, the latter's duties related mainly to the day shift first floor departments. Murphy has charge of all the inspection work in the plant, of the wiring and testing departments, and also of the installation of finished products at locations specified by the purchasers. Eise is in charge of the stockroom and - of the receiving, shipping, and order departments,' including the keeping of inventory records.6 The superintendents and the assistant superintendent are salaried ,employees; all of them have the power to hire and discharge. While the acts of the superintendents are subject to veto by Davis, this does not alter their character as responsible agents of the respondent. Moreover, Davis in fact seldom exercises veto power, and discharges may be effected in his absence. Likewise, although Haspeslagh's decisions may, in theory, be subject to veto by Bernard, the record shows that Haspeslagh decides upon and gives notice of discharge without consulting Bernard 'or 'securing his approval. While the respondent does not concede that it is responsible for all of the acts and statements of the superintendents and assistant superintendent in regard to self-organization by its employees,' manifestly their con- duct; as well as that of Davis and McBerty, is chargeable to the re- spondent upon principles of respondent superior. We shall, there- fore, consider in detail only the contentions advanced by the re- spondent with respect to its responsibility for the activities of the other afore-mentioned employees. The -employees subordinate to the superintendents and assistant superintendent are all paid by hourly rate. On the respondent's pay-roll records the highest classification among them is that of '5senior employee" (or "senior workman"), a term used by the re- spondent 8 to designate employees, who, by reason of their qualifica- tions, experience, and efficiency, in most cases acquired through long service with the respondent, receive higher pay than the other em- ployees engaged in the same departments or in similar work. Ac- cording to the respondent, approximately 131 of its 300 employees at the beginning of 1938 were in this group, and at the time of the hearing in October 1938, approximately 141 of its then 600 employees. Most of the "senior employees" have no control over or responsibility 6 The record does not disclose the location in the plant of these three departments. Else occupies an office opposite the stockroom on the second floor of the plant , which he shares with Bernard and four clerks who apparently constitute the order department. ''6 The respondent also has a staff of approximately 20 electrical engineers 'who apparently are under the supervision of R. C. Arter , the respondent's chief engineer. 7 In its brief and supplementary briefs, the respondent concedes that Bernard is a super- visory employee, and in the oral argument before the Board admitted that Haspeslagh is also a supervisory employee and that any statement by him as to the respondent's position with respect to union activities of its employees would be binding upon the: respondent. 8 The term is not generally known •to or used by the employees themselves. 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD' for the work or conduct of other employees in their respective de- partments, except when assigned to break in a new employee. It is obvious that three superintendents and one assistant super intendent are not able to supervise the work of 300 to 600 employees. Necessarily, the respondent has imposed on some of the "senior em- ployees" special duties and responsibilities with respect to the work and conduct of other employees, including "senior employees," and. the evaluation of their qualifications and efficiency. For example,. in the case of most of the production departments, the orders govern- ing the work performed from day to day are sent by Haspeslagh or Bernard to a certain employee in each department, described by Haspeslagh as the "set-up man," or an "older man," who has the duty of dividing the work into specific assignments for the individual employees. A like delegation of duties is made when the employees are to be notified of a plant rule governing their conduct. Thus, in the early part of 1938, Bernard, having decided to reannounce an old rule against employees entering departments other than their own,,went, according to his testimony, to "each individual room or department" on the first floor of the plant and notified "the senior workmen in that department or the set-up man or whoever it hap- pened to be," and in the second-floor assembly department, Bernard turned the matter over to H. A. Helfrich, who had raised the issue by asking "if we could not notify all the foremen and everybody to enforce that rule again." Bernard explained at the hearing, "We have so many employees, I couldn't tell each one individually." We consider now the extent, if any, to which the respondent has delegated managerial functions to the various "senior employees"' with whose alleged anti-union conduct the respondent is charged ; namely, H. A. Helfrich, Paul Helfrich, Lucius, Yeager, Spangler, Christman, Brown, Franks, and Beck. H. A. Helfrich is in charge of the approximately 100 production employees working in the second-floor assembly department on the day shift and is responsible to Bernard for the operation of the department. Helfrich himself does no production work. He re- ceives the work orders for the department, assigns the employees to their tasks and supervises their work. It is his duty to report to Bernard concerning the qualifications and efficiency of the employees under him, and he has the power to recommend discharges and wage increases. Bernard testified that he and Helfrich "come to a joint conclusion as to whether or not we should fire anybody." When a determination that an employee in the assembly depart- ment should be discharged is reached by Helfrich's superiors, Hel- frich signs the discharge slip in the space reserved for "foreman" and delivers 'the notice of discharge to the employee. THE NORTH ELECTRIC MANUFACTURING COMPANY 555- It is Helfrich's duty also to maintain discipline in the depart- ment and see that the rules of the plant are observed. He ex- pects his orders in these respects to be obeyed; has cautioned em- ployees against and reprimanded them for unnecessary talking during working hours, and smoking in the washroom ; and on one occasion noted in the record he reported to Bernard a violation of the smok- ing rule, and, upon the latter's instructions, penalized the three offending employees by lay-off and warned them that another of- fense would result in discharge. During 1938, on the ground that a number of tools in the assembly department were stolen, Helfrich suggested to Bernard that an old rule forbidding employees to enter other departments than their own during the noon hour be rean- nounced. Upon the suggestion's being accepted, Helfrich made the announcement in his department, and thereafter. ejected from the assembly room employees from the wiring department who had entered in violation of the rule. On another occasion, in March 1938, Helfrich, according to his testimony, devoted "about an hour"' to keeping watch over an inspector in the assembly department whom he suspected of annoying the production employees with ex cessive conversation. He testified that it was his "business" to guard' his "'help" against such annoyance; in his words, "I, watched my help." Helfrich testified that he is the "day boss" in the assembly de- partment. Kensinger, a witness for the respondent, said that his "boss" is Helfrich; two other employees in the assembly department described Helfrich as their "foreman"; a fourth identified him as his "superior"; and Davis admitted that Helfrich "probably" is the "senior worker who is above all the senior workers" in that depart ment, and that he "keeps the department running." Paul Helfrich,, who is a brother of H. A. Helfrich, is employed on the day shift in the lay-out department, with two other men, and also does occasional work in the welding department which has a. regular daytime staff of two employees. Bower, a witness called by the respondent, who is one of the employees in the lay-out depart- ment, testified that Helfrich is his "boss," and that he receives his work assignments from him, except that he selects them himself in Helfrich's absence. Helfrich was one of the employees selected by Bernard in the early part of 1938 to announce to other employees the rule against entering other departments. In February 1938 Bernard informed an employee in the welding room that Helfrich was his "foreman," to whom he should address complaints, inquiries,. or requests, and this employee subsequently followed Bernard's instructions. 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lucius is in charge of the approximately nine employees who, besides himself, work in the tool and die department on the day shift. He assigns and supervises their work and is responsible to his superiors for its quality and completion upon schedule. It is his duty to report regularly to his superiors as to the. operation of the department and the qualifications and ability of the employees under him. Since Haspeslagh was transferred to the night shift, about March 3, 1938, Lucius has remained at the plant during the 18-minute interval between the day and night shifts until Hapeslagh's arrival at the plant, in order to make such reports. Lucius testified that he has sometimes reported to his superior that the work of a particular employee in the toolroom was not as "good" as that of some of the apprentices, or that he did not "fit into our work." We find from this testimony that Lucius has the power to and does recommend changes in personnel. Some of the employees about whom Lucius has complained have been transferred to other departments; others have been discharged. In the latter case, the discharge slip has been signed by.Haspeslagh and notice of discharge delivered to the employee by Lucius. Lucius testified that he had been advised by his superiors some 5 years before that he was a "key man." Charles Pfleiderer, a discharged employee who worked under Lucius,' referred to Lucius in his testimony as his "foreman." Yeager, Spangler, and Christman. Yeager is the "set-up- man" for the other 9 or 11 employees in the punch-press department on his shift. He assigns the work to the other employees and, in his words, is "in a certain way" in charge of the department. From time to time he has acted as the respondent's intermediary in re- questing the employees in his department to work overtime. In 1938, upon instructions from Haspeslagh, Yeager told all the men in the department to keep out of other departments except when their duties took them there. Yeager testified that the other em- ployees in the department on his shift probably consider him to be their "boss," just as he considers Haspeslagh his "boss." Two witnesses who worked under Yeager until about March 3, 1938, when he was transferred from the day to night shift, described him as having been their "immediate foreman" and one of these employees testified at the hearing that Yeager was the "night foreman"' of the punch-press department. When Yeager was transferred to the night shift, Nelson succeeded to his position on the day shift; thereafter May,. who was employed in the punch-press department at the time of the hearing, was told by Bernard that Nelson was his "foreman." . Spangler and Christman are the "set-up" men in the machine shop on the day and night shifts, respectively. They are the employees See Section III C, infra. THE NORTH ELECTRIC MANUFACTURING COMPANY 557 to whom work orders for the machine shop are delivered. They assign, "set-up," and supervise the work of the other employees in the department, who operate the machines. There is evidence that, when not engaged in the performance of the foregoing duties, Spangler engages in the same work as the other employees in the machine shop. May, who worked in the machine shop under Spangler in January 1938, testified that Spangler is the "foreman" of the machine shop on the day shift, and Christman the "foreman" on the night shift. As we have found, Yeager, Christman, and Spangler fall into the category of "set-up man." Lucius, whose own duties have been de- scribed above, and who was called as a witness by the respondent, testified that if a set-up man discovers that an employee in his department is doing an assignment improperly, "he transfers him to another job." Lucius then testified that he "supposed" the set-up man "recommend(s) [i. e., makes recommendations as to] men who are not good for his department to his superior," but claimed that he "couldn't say as to that," because he "didn't know." We think this disclaimer plainly evasive in view of Lucius' "key" position and his employment on the first floor of the respondent's plant for 9 years; and upon the entire record we find that the set-up men make recom- mendations to their superiors based upon the work of other employees in their respective departments. Brown and four other floor inspectors are responsible to Murphy for inspecting for quality all the work performed during the day shift in various departments on the first floor of the respondent's plant. Brown performs complete, "100 per cent" inspection in the welding, lay-out, and plating departments, and, in part, in the car- penter shop; Finley, in the screw-machine department; Dickerhoff, in the machine shop and, in part, in the carpenter shop; Weber, in the punch-press department. Mason "does the weighing up and some- times checks a little raw material." It is the duty of these men, also, to watch over the performance by the production workers of the various operations in their respective departments, and to report faulty work to Superintendent Bernard. In case of improper work, they may order the production employee to halt the job until the matter is cleared with Bernard, or, if necessary, with Murphy. There is no evidence that Finley, Dickerhoff, Mason, or Weber has any duties or responsibilities with respect to the work of fellow inspectors. Brown, however, spends a portion of his time checking the work performed by the other four. Murphy testified that Brown spends "very little" of his time "worrying about the work of the floor inspectors other than himself," and, in the same connection, that Brown occasionally has "helped" the respondent. Davis testified that the other inspectors report and are responsible to Brown "to a cer- 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD t ain degree and under certain conditions." Brown testified that he inspects "practically everything on the first floor, that is that I have time." Brown further testified that he "might have" suspended some employees upon specific instructions from Murphy, and we infer that he referred to other inspectors, since the record contains no indica- tion that Murphy has any control over the personnel of the produc- tion departments. We also infer that Brown devotes so much of his time as is not spent in the performance of his other work to checking over the work of his four fellow inspectors, that he reports to Murphy as to the other inspectors, and that such reports are con- sidered by Murphy in making determinations as to the tenure and other terms and conditions of their employment. When a new in- spector is hired to work on the first floor, Brown, rather than one of the other inspectors, is assigned to instruct and train him in his duties. From -time to time, Brown is sent out of Galion to inspect the cabinet parts purchased by the respondent, before they are shipped to the respondent's plant. Franks is the oldest in seniority of seven or eight men employed as clerks in the stockroom on the second floor of the plant, near the office of their superintendent, Eise, through whom requisitions are cleared. Like the other stockroom employees, Franks' work consists of receiving and storing materials and parts and filling requisitions for them either at the stockroom or by delivery of the items to the departments requesting them. While Franks is responsible for break- ing in new clerks in the stockroom, and there is testimony that he "handle (s) most of the work," there is no evidence that he is expected to report to Eise as to the qualifications, efficiency, or conduct of his fellow clerks, or that he is regarded by them as their "foreman" or "boss." Beck, who. was the only witness who testified concerning his duties and responsibilities, asserted that he has no authority of any kind over the two other employees who, with him, constitute the personnel of the carpenter shop, that he does not give them instructions as to work to any greater extent than they do to him, and that, while he referred to them as "assistants," or "helpers," he did so only because he has been employed at the plant longer than they. It is apparent from the evidence recited above that H. A. Helfrich, Lucius, Yeager, Spangler, and Christman not only allocate work but have the power and are expected to make recommendations which may involve the discharge, demotion, transfer, or supervision of em- ployees or change in their working conditions. These facts, together with the other above-described supervisory duties and tasks imposed upon and delegated to these men by the respondent, establish, .that they act as representatives of the management in their day-to-day THE NORTH ELECTRIC MANUFACTURING COMPANY 559 relations with the other employees in their respective departments, and the testimony of employees in their departments describing them as "foremen," "bosses," and the like demonstrates that they are recog- nized as such. As to Paul Helfrich, the record shows that an em- ployee in the welding room was told by superintendent Bernard that Helfrich is his "foreman," with the duty to receive grievances, that Helfrich assigns work to the other employees in the lay-out depart- ment, that he was delegated to announce a plant rule, and that, as appears from the testimony of Bower, he is regarded as "boss" of the lay-out department. We conclude that Paul Helfrich is a man- agement representative and is so regarded by the employees in the lay-out and welding departments. With respect to Brown, we have found that he not only reports to Bernard concerning improper work by production employees, but that, unlike his fellow inspectors, he devotes as much time as he can spare from his other duties to check- ing over the work of other inspectors, that he reports thereon to Murphy, that he has notified other inspectors of their suspension from work, and that he is the person selected to train new inspectors on the first floor. We conclude that. Brown's position is also that of a representative of the management. On the other hand, the record does not establish that Franks or Beck has such a status. We find from the foregoing evidence and the entire record that H. A. Helfrich, Paul Helfrich, Lucius, Yeager, Spangler, Christman, and Brown are supervisory employees for whose acts of interference, restraint, and coercion in respect to the exercise by the other em- ployees of their rights guaranteed in Section 7 of the Act, the re- spondent is responsible.10 B. Interference, restraint, and coercion 1. The January 24, 1938, poll In January 1938, the Union began an organizational campaign among the respondent's employees, under the leadership of A. G. .Skundor, a grand lodge representative of the International Associa- 10 While these employees do not have the power to hire or discharge, that fact is not determinative of the respondent's responsibility, but is simply a circumstance to be con- -sidered in determining whether by reason of their position and authority the conduct of these employees has interfered with, restrained, and coerced other employees in violation of the Act. See Virginia Ferry Corp. v. N. L. it. B., 101 F. (2d) 103, enf'g as mod., Matter of Virginia Ferry Corporation and Masters, Mates and Pilots of America, No. 9, 8 N. L. R. B. 730; N. L. it. B. v. American Manufacturing Co. 106 F. (2d) 61, aff'd. as mod. 60 S. Ct. 612, enf'g as mod., Matter of American Manufacturing Company, et al. and Textile Workers' Organizing Committee, C. I. 0., 5 N. L. 'R. B. 443; Int'l Assn. of Machinists v. N. L. it. B., 110 F. (2d) 29, cert. granted, 60 S. Ct. 721, aff'g, Matter of The Serrick Corp. and Int'l Union, United Automobile Workers of Am., Local No. 459, 8 N. L. R. B. 621; H.'J. Heinz ,Co. v..N. L. it. B., 110 F. (2d) 843 (C. C. A. 6), enf'g, Matter of H. J. Heinz Company and Pickle Workers, Local Union No. 325, etc., 10 N. L. R. B. 963. See also Matter of Borden Mills, Inc. and Textile Workers Organizing Committee, 13 N. L. R. B. 459; Matter of The Baldwin Locomotive Works and Steel Workers Organizing Committee. 20 N. L. R. B. 1100. 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion of Machinists. The first organizational meeting of the Union was held on Friday, January 21, at a hall in Galion, and was attended by 100 to 200 persons, of whom about half were employees df the respondent. At the conclusion of the meeting applications for mem- bership in the Union, or authorization cards, were signed by a num- ber of the respondent's employees. On the Monday morning following the Union's organizational meeting, employees in the departments under superintendent Bernard: were polled during working hours as to their sentiments toward the Union. Bernard directed H. A. Helfrich to interrogate the approxi- mately 100 employees in the second-floor assembly department, and turned over such questioning of employees in the first-floor depart- ments to assistant superintendent Haspeslagh. The latter in turn directed Yeager, Paul Helfrich, Spangler, Lucius, and Beck to con- duct the questioning in their respective departments 11 The respondent claims that Bernard ordered the poll on his own initiative,12 and without specific authority from his superiors; that Bernard did not report the results of the poll to, and the poll was not used by them; and that in any event it was not shown to have had any coercive effect upon employees. With respect to the con- tention that no coercive effect was established the respondent relies upon testimony of employees that this was the case, and urges further that the record does not show that the employees knew that the poll was conducted by the respondent, but that, on the contrary, so far as the employees knew, the poll originated with and was a matter of interest only to H. A. Helfrich, Paul Helfrich, Yeager, Spangler, Lucius, and Beck, as fellow employees. Upon these grounds, the respondent argues that the conduct of the poll may not be held to have interfered with the exercise by its employees of rights guaranteed by the Act. As we have stated above, the respondent ' is responsible, upon principles of respondent superior, for the acts of Bernard and Haspeslagh. Consequently, it is immaterial, so far as the liability of the respondent is concerned, whether McBerty or Davis specifically authorized Bernard to conduct-the poll. "As noted above, Yeager is employed in the punch-press department, Paul Helfrich in the lay-out and welding departments, Spangler in the machine shop, Lucius in the tool and die department, and'Beck in the carpenter shop. Beck testified that he had no recollection of the poll or of any orders to participate in it. Haspeslagh stated at the hearing, however, that Beck was one of the men to whom he transmitted Bernard's orders , as found in the text. Beck was an evasive and untrustworthy witness ; and we accept Haspeslagh's testimony on this Issue. The record indicates , and we find that the poll was also conducted In the other first-floor departments over which Bernard is superintendent: Bernard testified that he had the poll taken in order to satisfy his curiosity as to the truth behind conflicting rumors in the plant. He asserted that after the results-of the poll in the various departments had been delivered to him by H. A. Helfrich, he added them together and "Just generally got a picture all over the plant . . . and that Is all there is to it." THE NORTH ELECTRIC MANUFACTURING COMPANY 561 Moreover, we are unable to credit the testimony of Bernard that he took the poll simply to satisfy his curiosity as to the truth behind conflicting rumors in the plant and upon being informed of the result did nothing further; or the testimony of Davis that he did not "recall" whether he, knew of the conduct of the poll and did not `remember" whether it was called to his attention. The testimony of Bernard and Davis is not plausible. Upon the entire record we conclude that Bernard conducted the poll with the knowledge and approval of his superior. That this was the case is, we find, cor- roborated by Davis' conduct on January 28, when Skundor, the Union's representative, met with him and protested against the poll. On that occasion, Davis took the position that the poll involved no infringement of -the. rights of employees under the Act since "they was just merely wanting to find out whether the employees wanted a union or not.713 Furthermore, by taking this position, Davis ratified Bernard's conduct, and, even if not theretofore responsible for the poll, the respondent then became fully chargeable therewith. As we have stated above, the respondent seeks to avoid responsi- bility on the ground that the employees questioned did not know that the poll was being conducted by, 'or on behalf of, the respondent. In substance, the argument is that the persons coming into immediate contact with employees in the conduct of the poll were themselves eligible to membership in the Union, would be represented for the purposes of collective bargaining by the Union if it should be designated by a majority of the employees; that these employees, therefore, were entitled in their own self-interest to oppose the Union; and that, so far as appeared to their fellow employees, this was all that they purported to do in conducting the poll. While the respondent, on the same ground, seeks to excuse itself from other acts and statements by this group of employees 1 14 the issue presented in connection with the poll is a narrower one, for since the poll was the respondent's act, the only question presented by the respondent's contention is whether the employees were aware of that fact. They clearly were. When Yeager questioned the 10 or 11 employees in the punch-press department, all of them stated they were "for the union." Yeager wrote their names upon a piece of paper which. he handed to Haspeslagh. About an hour later, Yeager approached Febus, one of the employees in the department, and told him that Haspeslagh "didn't like this 100 per cent depart- ment worth a damn," and asked Febus if he "wanted to change [his] 1! Although Davis testified that he did not recall discussing the poll with Skundor. Skundor's testimony, upon which the finding in the text is based, is corroborated by the testimony of superintendent Bernard, who was present at the meeting, that the poll was one of the subjects of conversation. "See Section III B 2, infra. 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mind." As this incident alone discloses, the employees were aware that the poll was being conducted by the respondent. Moreover, the record establishes that the respondent regularly delegates to Yeager, H. A. Helfrich, Paul Helfrich, Spangler, and Lucius managerial duties with respect to other employees, and that, in the eyes of the employees in their respective - departments, they 'are supervisory employees who are representative of the management 15 Since the poll was openly conducted among the employees by these men during working hours; throughout the various departments, and for no stated purpose, it was evident, and we find, that the other employees knew that the questioning as to their union sentiment was at the instance of the respondent. Nor is there merit in the contention that the conduct of the poll was not coercive in actual effect. While the respondent refers to, certain testimony, given by three or four employees, as showing that the poll did not affect the employees' course of conduct, we do not believe that the effect of such a canvass may be determined by ques- tioning of employees by the employer's counsel at a public hearing;. rather, it must be ascertained by an evaluation of the natural con- sequences of the employer's activity.- An attempt such as was here made to elicit from employees, by direct questioning, information as to whether or not or in what manner, if at all, they have exercised or intend to exercise their rights guaranteed in the Act, constitutes in itself a threat that the employer's economic power and superior position may be used to' the disadvantage of the individual employees, disclosed to be active in or sympathetic to self-organization, and thereby influences employees to substitute for their own choice what they believe to be their employer's.'? Hence, apart from whether or not the poll is accompanied by coercive or restraining statements- and, as we find below,"' such statements were made during the poll in this case-such employer activity necessarily intimidates, restrains, and coerces employees in the exercise of those rights. We find that the respondent, by conducting the above poll of employees as to their union sentiments, interfered with, restrained,, and coerced its employees in the exercise of their right to self-organi- 16 See Section III A , supra. 18 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 footnotes 14 and 15 therein ; Matter of New Era Die Company and International Association of Machin- ists. L°d7e <-1,3 (A. F. of L.), 19 N. L. R. B. 227 , and cases cited in footnote 9 therein. See also Matter of The Yale <f Towne Maniefacturing Company and Amalgamated Associa- tion of Iron, Stesl and Tin Workers of North America, Lodge No. 161,7, 17 N. L. R. B. 666,. at pp. 5-9. - 17 See Matter of Okey Hosiery Company, Incorporated and R . H. Theiling, Receiver and< America" F-deration of Hosiery Workers, North Carolina District, 22 N. L. R. B. 792,. and eases cited in footnote 7 therein. 11 See Section III B 2, infra. . THE NORTH ELECTRIC MANUFACTURING COMPANY 563 zation, to form, join, or assist labor organizations , to bargain col- lectively through representatives of their own choosing , and to engage in concerted activities for the purpose of collective bargaining and other mutual aid and protection , as guaranteed in Section 7 of the Act. 2. Anti-union statements by Yeager, Paul Helfrich, and H. A. Helfrich; respondent's responsibility therefor As we have noted above, Yeager, after advising Haspeslagh of the result of the poll in the punch-press department, told Febus that Haspeslagh "didn't like this 100 per cent department worth a damn" and asked Febus if he "wanted to change [his] mind." Paul Helfrich, in the course of conducting his portion of the poll, questioned Neuman, an employee in the welding department, as to his attitude toward the Union. Helfrich testified that Neuman gave the impression "he did not think so much about it," and asked Hel- frich what the latter thought about it. Helfrich admitted that I told him I thought that if it [the Union] went through that there would be quite a bit less work, the company would not be able to get as much work, and that the experience I had, that that is about the only job I ever lost, was when I worked at the Erie shop, . . . and that I went right into one again . . . I said that at different times I helped picket . . . I might have gave him the impression that I never gained anything by belonging. According to Neuman, Helfrich, in questioning him as to his views regarding the Union, asked "if they [the Union] didn't paint a pretty picture for me [Neuman]." While Helfrich denied that he had thus framed his question, the record establishes his hostility to the Union, and we credit Neuman's version of the conversation. Subsequently, in March 1938, Helfrich urged Bower, an employee on his shift in the lay-out department, to attend a meeting at which an anti-union petition was to be prepared, and declared "maybe we can fix it so you fellows won't have to pay any big money to get in [i. e., to join the Union]." H. A. Helfrich, at one time, told employees in the assembly depart- ment that 'the respondent "was bidding on certain jobs, and if the people went union, they [the respondent] would let some of those jobs go." At another time," during a lunch-hour argument in the plant, Helfrich declared in the presence of several assembly depart- ment employees that "They [the leaders of the Union's organizational 19 The evidence places this incident as occurring at some time between the date of the poll and the early part of March. 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD campaign] are nothing but a bunch of racketeers and liars. All they are after is your $3 and after that they will leave you flat." About February 10, 1938, according to the testimony of Wit- tibslager, who at that time was employed as a relay adjuster under H. A. Helfrich, the latter forbade Wittibslager "to be talking union during working hours, before or at lunch periods, before or after work," under penalty of discharge, told him that his previous mem- bership in a labor organization other than the Union had resulted in the respondent's withholding his appointment to "a responsible job," and, upon Wittibslager's assuring him that he was a member of neither the Union nor the labor organization to which Helfrich referred, asserted, "We can't give men responsible jobs who are against the company." Wittibslager, who was promoted to the job of inspector on March 1, 1938, further testified that about March 9 Helfrich called him aside during working hours, charged him with discussing union matters while at work, and said that if he ever caught him "talking unionism" during working hours he would go to Wittibslager's superior, Murphy, and have him discharged. Helfrich testified that on the two occasions in question he had, in the performance of his duty to maintain discipline in the assembly department, reprimanded Wittibslager for annoying the other em- ployees by excessive conversation during working hours, but he denied that he had made any threats or statements with reference to union membership or activity. Wittibslager's testimony is con- sistent with Helfrich's admitted antagonism to the Union, other anti- union statements by him, and his participation in the initiation and circulation of an anti-union petition in the latter part of March 1938.20 Moreover, Wittibslager's version is corroborated by the testi- mony of superintendent Bernard that some time during March or tha first part of April 1938 Helfrich approached him with a request to reprimand Wittibslager for "talking unionism" during working hours. We find that Helfrich made the statements attributed to him by Wittibslager. As we have stated above, the respondent seeks to avoid responsi- bility for the anti-union acts and statements of H. A. Helfrich, Paul Helfrich, and Yeager on the ground that they are eligible to mem- bership in the Union.21 As we have noted, the respondent urges that on this account the respondent, in the absence of proof of 'specific au- thorization thereof, may not be charged with the anti-union conduct of these employees. Even apart from the fact that the record does "This incident is discussed in Section III B 3. infra. 21 The same claim is made by the respondent with respect to Spangler and Christman, who, together with the employees referred to in the text, participated in the preparation and circulation of the anti-union petition in the latter part of March. ( See infra.) The discussion in the text is equally applicable to them. THE NORTH ELECTRIC MANUFACTURING COMPANY 565 not establish that these employees are eligible to membership in the Union'22 we find no merit in the respondent's contention. While supervisory employees may elect to designate or to refrain from designating a labor organization as their bargaining agent (as by joining or not joining a labor organization), they may not use their authority and power to affect the choice of a labor organization by their subordinates. Hence we conclude, as we have in other cases, that the respondent may not escape liability for the interference of its supervisors on the ground that they are eligible to join the same union as other employees, or to vote as part of the same unit.23 The record leaves no doubt, and we find, that in making the anti- union statements referred to above Yeager, Paul Helfrich, and H. A. Helfrich did so in their capacity as supervisory employees and that. the employees so regarded them. Yeager's suggestion that Febus "change [his] mind" with respect to the Union to coincide with Has- peslagh's views was not an appeal of one employee to another, but a warning of management displeasure. Paul Helfrich's derogatory reference to the Union as "paint(ing) a pretty picture" to obtain members, and his prediction of less work if the Union succeeded in organizing the plant, occurred, as did Yeager's statement to Febus, in connection with the conduct of a poll of union sentiment con- ducted during working hours' throughout the departments under Bernard, and his subsequent statement to Bower, urging him to at- tend an anti-union gathering, must be interpreted in the light of that fact. H. A. Helfrich's warning that unionization would result in the respondent's foregoing work, and his impugning the character and motives of the union leaders, are to be considered together with the fact that at about the same time Helfrich threatened to use his supervisory position to bring about Wittibslager's discharge unless he ceased his union activities in the plant and stated that "we" 24 could not give responsible jobs to men who were "against" the respondent. On two or three occasions during the first 4 months of 1938, Skun- dor protested to Davis against various activities by H. A. Helfrich and other employees which constituted, in the opinion of the Union, unfair labor practices by the respondent. There is evidence that as a result of these protests, Davis and Bernard several times told groups of "senior workmen" that the respondent desired to maintain a position of neutrality toward the Union. McBerty, according to r, while there is testimony that Nelson retained his membership in the Union after he succeeded to Yeager's position on the day shift when the latter was transferred to the night shift, it does not appear that Nelson remained entitled to , or sought to participate actively in the Union. 22 See Matter of Theurer Wagon Works, Inc. and International Union, United Automobile Workers of America, Locals 259 and 371 , 18 N. L. R. B. 837 ; Matter of Ward Baking Company and Committee for Industrial Organization , 8 N. L. R. B. 558. 24 By his reference to "we," Helfrich clearly identified himself as part of the management. 283035-42-vol. 24-37 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his testimony, told "numbers of employees" that the respondent had no objection to their joining a union. There is also testimony that on several occasions Bernard spoke to H. A. Helfrich concerning the latter's statements upon the complaint of an employee, and that a day or two following the interchange between H. A. Helfrich and Wittib- slager on March 9, referred to above, Davis and Bernard reprimanded Helfrich for his outspoken opposition to the Union, apparently after Skundor had complained of this and other incidents to Davis. Assuming that the respondent requested its supervisory employees to maintain a neutral position with respect to the Union, it did not seek to make such instructions effective. On the contrary, shortly after the alleged reprimands were allegedly given, the respondent, though prohibiting union activity in the plant, permitted the circu- lation of an anti-union petition in the plant by supervisory em- ployees 2° Moreover, whereas unequivocal and open condemnation of the activities of the supervisory employees and vigorous action to prevent their repetition were essential in order to overcome their effect,'" Davis flatly refused Skundor's request that H. A. Helfrich be reprimanded in his presence ; and the respondent at no time notified its employees generally that the acts of the supervisory employees were contrary to its policy and that continuance thereof would result in disciplinary steps against the offenders. Finally, as we shall point out below, the respondent in its first and only meet- ing with the Union, on April 9; 2 and again by a newspaper adver- tisement on April 29,28 manifested its hostility to the organization of its employees ; thereby as well as by the poll of January 24, the respondent made plain that its professions of neutrality were not seriously intended and that the conduct of the supervisory employees was entirely consonant with its attitude toward the Union. We find that by the afore-mentioned acts and statements the respondent interfered with, restrained, and coerced its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representa- tives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining and other mutual aid and protection, as guaranteed in Section 7 of the Act 2° z See Section III B 3, infra. 21 See H. J. Heinz Co. v. N. L. R. B., 110 F. (2d) 843 (C. C. A. 3), enf'g Matter of H. J. Heinz Company and Canning and Pickle Workers, Lecal Union No. 325, 10 N. L. R. B. 963; Matter of William Randolph Hearst, et at. and American Newspaper Guild, Seattle Chapter, 2 N. L. R. B. 530, 544, enf'd in N. L. R. B. v. William Randolph Hearst, et at., 102 F. (2d) 658, 662. See also Matter of Arma Engineering Company and Committee for Industrial Organization, 14 N. L. R. B. 736, 749. 27 See Section III B 4, infra. 29 See Section III B 5, infra. 29 See Matter of Brown Shoe Company, Inc. and National Leather Workers Association .#44, affiliated with the Committee for Industrial organization, 23 N. L. It. B. 616 and cases therein cited in footnotes 28 to 33, inclusive. THE NORTH ELECTRIC MANUFACTURING COMPANY 567 3. Anti-union petition On March 17, 1938, the Union sent a letter to the respondent, at- tention of Davis, asserting that approximately 70 per cent of the respondent's employees within the Union's jurisdiction had desig- nated the Union as their representative , and requesting that the Union be recognized as the exclusive representative of all such em- ployees, and that a bargaining conference be held between repre- sentatives of the respondent and the Union by March 24 , to negotiate with respect to a proposed contract which was enclosed. On the afternoon of Saturday , March 19, 1938 , 20 employees opposed to the Union,. including H. A. Helfrich , Paul Helfrich , Brown, Lucius, and Spangler, whom we have found are supervisory employees, gathered at the office of a local attorney , who, at their instance, prepared a petition . The 20 employees affixed their signatures to the petition and subsequently about 221 other employees of the respondent signed it , including Yeager and Christman , who, as we have found , also are supervisory employees. The petition was ad- dressed to the respondent , attention of McBerty and Davis, and stated in substance that the signers had been "informed" of an at- tempt to "Unionize" the respondent's employees, and that they wished to make known to the respondent that they were opposed to "Unionization" and to the Union, and objected to the "Closed Shop," toward which they believed the Union to be a step.80 H. A. Helfrich , who suggested the name of the attorney em- ployed to draft the petition , and helped to organize the group of employees which went to the attorney 's office, testified as follows regarding the origin of the petition : "Well, there was so much argument down there about whether they had-they stated down there that it was 70% belonged to the union , and we had arguments among ourselves whether they did or not, and we decided that if they had a lot of union members to protect ourselves , we would get up a petition, see how many signers we could get. " Paul Helfrich testified : "Well, there was some of the old fellows that worked The petition declared: We the undersigned, employees of the North Electric Manufacturing Company, have been informed that an attempt is being made to Unionize the employees of this com- pany, and we as employees wish to express our views on this subject. We are opposed to Unionization because we have always found that if we had any grievances we could go to the management of this company and iron out our diffi- culties, and it seems to us that it is unnecessary for us to pay dues to a Union which at best can only do for us the things that we have been able to do for ourselves. We are opposed to the Union because we believe that it is a step towards a Closed Shop, and we believe that any man should be able to work without being compelled to join any organization. We are addressing this communication to you so that you may know how we feel about the Unionization of the employees of the North Electric Manufacturing Company, and to urge upon you our firm objection to making this shop a Closed Shop. 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD around the factory ... and we had little discussions about it, [the Union's campaign] and figured that we had not ought to let some- body come in, maybe work a month or two, and tell us what we would have to do, or we would not have to do, and someone sug- gested going up to a lawyer's office and getting papers drawed out, oh, kind of petition, I guess, as saying Whether there were as many that had joined up as what the rumors were, and quite a few of them was about ripe for something like that, and they agreed, and so we went up one Saturday afternoon and had them drawed up." Brown testified that he did not know of the proposed gathering in the lawyer's office until after the close of work on Saturday noon, when someone telephoned and told him of it. Lucius testified that he knew nothing of the'proposed petition until Saturday afternoon, when either Paul Helfrich or Brown told him of it. Bower, an employee in the lay-out department on Paul Helfrich's shift, and who attended the meeting, was told by Paul Helfrich about 3 minutes before quitting time on Saturday, that there was to be a meeting, "and maybe we can fix it so you fellows won't have to pay any big money to get in [i.e., to join the Union]." 31 Bower testified that he had "expected half the shop to be there, but when I got there there were not that many there." 82 With the exception of the 20 signatures affixed in the attorney's office, and of 10 or 15 others obtained by Lucius and Beck on Satur- day and Sunday, March 19 and 20, substantially all of the 241 sig- natures to the petition were secured at the plant on Monday, March 21, and immediately thereafter. Most of these were secured before and after work, and during the lunch periods. However, one copy which was kept in the stockroom on the second floor, where 2 of the original 20 employees were employed, was signed during working hours by a number of employees from other departments. H. A. Helfrich knew of this copy, and described its location to a number of employees who questioned him concerning the petition. Lucius secured the signatures of six of the nine other employees in the tool and die department, on the day shift, to a copy of the petition which he had; of the remaining three employees, two, signed "Bower testified that about that time he had heard members of the Union say that the employees "would have to pay big money to get in the Union, if they didn't joint then.'! 1Spangler was not a witness at the hearing. Beck and Franks also attended the meet- ing at the attorney's office. The latter testified that he did not know the origin of the petition. Beck testified : "Well, . . . after work and before work you would hear different of the employees saying that they did not care to belong to a union , and there seemed to be quite a . . . bunch of them, so that we kept talking about It, and finally quite a few of ue decided that we would circulate the petition, and if there was not a majority who signed it and who did not favor It, it would be dropped , and If a majority of them did sign it and did not favor the union , we would keep It and present it to the company." THE NORTH ELECTRIC MANUFACTURING COMPANY 569 another copy of the petition; the ninth, Charles Pfleiderer, was solicited by Lucius before work on Monday, March 21, together with other employees in the department, but refused to sign. Pfleiderer testified without contradiction, and we find, that, a few minutes after his first refusal, Lucius returned to him and said, "You better sign it [the petition]. They all signed." Paul Helfrich and Yeager had copies of the petition, and asked employees to sign. Christman passed around a copy of the petition among employees in the machine shop. Brown circulated a copy one noon hour in the inspection room on the second floor. Besides the foregoing supervisory employees, the only persons who were identi- fied at the hearing as having assisted in obtaining signatures were Beck, Franks, Myers, who, like Franks, is a stockroom clerk, and Casey, a clerical employee who works in the office of superintendents Eise and Bernard. As their circulation was concluded, the various copies of the peti- tion were turned over to Beck sometime prior to April 1 for safe keeping. Beck testified that "we" decided not to present the petitions to the respondent at that time because the respondent's staff was being increased, and it was thought that additional signatures might be obtained from new employees. Neither Beck nor anyone else, how- ever, testified to any subsequent circulation of the petition.33 As we have found above, H. A., Helfrich,, Paul Helfrich, Brown,, Spangler, Christman, Yeager, and Lucius are supervisory employees: with whose anti-union conduct the respondent is chargeable. The participation of these employees in the preparation and circulation of the anti-union petition constituted flagrant interference with the rights of employees guaranteed under the Act. By signing and cir- culating the petitions, the supervisors made clear their own hostility to the Union. They had the power, by reason of their position, to affect, for good or evil, the economic welfare of employees solicited to sign the petition. Consequently, the threat of possible unfortunate consequences to those who refused to sign was clearly implicit in the appearance of the supervisors' signatures on the petition and in their presentation of the petition to the employees, who recognized them 0 Beck testified that after April 1, an employee , whose Identity he claimed he was unable to remember, secured the petition from him in order to obtain two or three additional signatures. As we have noted above, the Union, on March 17, 1938, wrote to the respondent requesting a bargaining conference . The respondent finally met with the Union on April 9, 1938. Beck attended this meeting under circumstances which we consider below ( in Sec- tion III B 4), and had with him the various copies of the petition . The Union at that time declined to present proof of its claim of majority . Beck testified that he had no occasion to come forward then with the petition , and that he did not do so thereafter because after the meeting "everything quieted down in the shop, and everybody seemed to be getting along peaceably, and no more was said about it." 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as "bosses" and "foremen." 34 Indeed, as we have found, Lucius warned an employee that he had "better sign" the petition 35 Even apart from the absence of merit in the respondent's claim that it is not responsible for the part in the petition movement played by the afore-mentioned employees by reason of their supervisory posi- tions,.the record shows that the respondent is chargeable With the activ- ities in the plant in connection with the petition. Shortly after Lucius warned Pfleiderer that he had "better sign" the petition, Lucius notified Pfleiderer that he was discharged. For the reasons stated below we conclude that Pfleiderer's refusal to sign the petition was not a cause of his discharge. Pfleiderer, however, believed that this was the case and charged Lucius with discharging him for that reason. Later, at the end of the shift, Lucius, according to his testimony, told Haspes- lagh that Pfleiderer had accused him of discharging Pfleiderer because he would not sign "a petition." Lucius testified that he did not explain to Haspeslagh what the petition referred to, and that so far as he could recall, Haspeslagh made no inquiry and "just laughed about it." Has- peslagh testified that he had no idea at that time of what the petition said, and that he "was not much interested." We find this testimony incredible. We do not believe that upon learning of so serious an accusation Haspeslagh, Whose supervisory status the respondent con- cedes, did not ascertain the contents of the petition and the circum- stances under which Pfleiderer was asked to sign it and refused. The alleged indifference of Haspeslagh is in sharp contrast to his action in February 1938, when, on learning that May, an employee in the punch-press department, had passed out union application cards in the department, he cautioned May against such activity and told him that union activities were forbidden in the plant. Haspeslagh ad- mitted that his warning was not limited to activities during working hours, and testified that he had spoken to May because "we don't care to have any literature passed around inside the plant." We find that Haspeslagh knew the nature of the petition and that it was being circulated in the plant, as well as the fact that at least one employee had believed that refusal to sign it was made the basis of discharge. Under the circumstances, Haspeslagh's failure to halt the circulation 84 The respondent seeks to draw a distinction in the case of Brown , on the ground that the inspectors subject to his supervision are outside the jurisdiction of the Union. How- ever, the Union claimed jurisdiction over those employees and, as we point out below (in Section III B 4), employees may choose to designate as their bargaining representative a labor organization althoueh ineligible to membership therein. 85 It is to be observed that the petition was addressed to the attention of the respondent's officers. While intervening circumstances may have resulted in the abandonment of the plan to present the petition to the officers of the respondent (see footnote 33, supra), that obviously could not be anticipated by the employees approached for their signatures, nor was it claimed that they were told that the petitions were not delivered to McBerty and Davis. THE NORTH ELECTRIC MANUFACTURING COMPANY 571 of the petition in the plant and to communicate an unequivocal dis- avowal of the petition to the employees generally was tantamount to approval and ratification by the respondent of the acts of Lucius and others in circulating the petitions. We find that, by initiating and circulating the anti-union petition, the respondent interfered with, restrained, and coerced 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 pur- poses of collective bargaining and other mutual aid and protection, as guaranteed in Section 7 of the Act.36 4. The April 9, 1938, conference We have noted above that on March 17, 1938, the Union submitted to the respondent a proposed contract in which was included a provision for recognition of the Union by the respondent as the exclusive repre- sentative of all of the respondent's employees within the Union's juris- diction, and that on April 9, 1938, a meeting between the Union and the respondent was held. Appended to the proposed contract was a de- scription of the classifications of the employees in the respondent's plant for whom the Union sought to bargain collectively. The meeting was held in a plant office during working hours. The respondent was represented by McBerty, Davis, R. C. Arter, its chief engineer, and Carl J. Gugler, its attorney. The Union's representa- tives were Skundor, G. T. Britt and W. A. Smith, officers of the Union, and Wittibslager, Algire, and Mrs. P. V. Prosser, members of the Union and employees of the respondent. In addition to the repre- sentatives of the Union and of the respondent there were present, at the instance of the respondent, 11 employees attending as "observers," and other employees were enabled, by the installation of a loud-speaker system, to hear the proceedings from an adjoining office. McBerty testified that the "observers" were present as a result of instructions which he delivered to his subordinates, to select a repre- sentative group of "the older and more intelligent" employees in the plant to come to the meeting acid learn at first hand what transpired there. According to the testimony of two of the "observers," Beck, to whom we have referred above, and Swartz, an inspector in the assembly s6 See Matter of Humble Oil & Refining Company and Oil Workers International Union, Locals No. 222 and .316, 16 N. L. R. B. 112; Matter of White Swan Company and Amalga- mated Clothing Workers of America, Cleaners, Dyers and Laundry Workers, Local 308, 19 N. L. R. B. 1079. See also Matter of Model Blouse Co., etc., and Federal Labor Union, No. 21560, 15 N. L. R. B. 133; 142, 143; Matter of The Niles Fire Brick Company and United Brick Workers' L. I. U. No. 198, 1S N. L. R. B. 883; Matter of New Era Die Company and International Association of Machinists, Lodge 243, (A. F. of L.), 19 N. L. R. B. 227. 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD department, they attended upon hearing from fellow employees that the meeting was open to all. WWThile the general invitation probably referred only to attendance in the adjoining office, it is immaterial that Beck and Swartz may not have been specifically selected to be present. To all intents they were present for the same reason as the others. At the outset of the meeting, the respondent announced that it would not discuss the terms of the proposed contract until it had been presented with satisfactory proof (1) that the persons purporting to represent the Union had been empowered by the Union to act in such capacity, (2) that the Union represented a majority of the em- ployees for whom it sought to act as exclusive representative, and (3) that the Union had jurisdiction over such employees. Skundor, who acted as spokesman for the union group, indicated that the creden- tials of the latter to act as representatives would be produced, but that the membership of the Union had not authorized the presenta- tion to the respondent of documentary evidence in support of its rep- resentation claims, and that so far as jurisdiction was concerned, this subject did not concern the respondent, and its inquiry into it was improper. Skundor stated, however, that the Union was unwilling to discuss the questions raised by the respondent except at a meeting confined to representatives of the Union and the respondent, and re- quested that the 11 observers selected by the respondent be excluded from the room. This request was denied by the respondent. The meeting, which lasted about an hour and a half, was devoted in large part to argument between the respondent and the Union as to the propriety of the respondent's action in bringing in the observers. McBerty stated that the observers were present at the meeting at his instance and that other employees would be able to follow the pro-' ceedings through the loud speaker, and in substance declared that these arrangements were made in order that the employees might "learn in their own way as to what is going on." Thereupon Algire, one of the union delegation, suggested, "If you want these people to find out as to what goes on, if they are interested, let them come to the Union Meeting and find out." This evoked the following com- ment from McBerty : "We have heard a good many representations that indicate that the truth does not always come out in the Union meeting discussions." Earlier in the meeting, Gugler declared that the respondent wished to know whether the Union represented a ma- jority of its employees, and Skundor replied, "We feel we do." Mc- Berty then stated : "You say what you feel, and so forth. We don't give a hoot what you `feel.' We want*to know what the facts are." To Skundor's reply that the Union did represent a majority of the respondent's employees, but did not desire the observers to be present THE NORTH ELECTRIC MANUFACTURING COMPANY 573 at discussions between the two parties, McBerty retorted : "Go ahead then. I don't give a damn what you care or feel or think. They want to know what the facts are." At another point in the meeting, Skundor stated that the union representatives could act only in ac- cordance with the wishes of the membership of the Union. McBerty interposed, "What is the basis of that assertion-just your opinion, or have you got some basis of fact back of it?" _ Assuming that McBerty believed that the Union's representatives were not truthfully representing to employees what occurred in their meetings with the respondent's representatives '37 that fact would have afforded no justification for the respondent's selection of a group of employees to attend the conference with the Union for the purpose of observing and also, it is obvious, reporting the proceedings to their fellow employees. This action on the part of the respondent was in complete derogation of the right of employees to self-organiza- tion and to bargain collectively through representatives of their own choosing. Such interference by an employer with the exercise of rights guaranteed by the Act may not be excused on the ground of ,the allegedly beneficent motives of the employer. Moreover, the re- spondent was completely unwarranted in utilizing its meeting with the Union to undermine the confidence of the union members in their representatives and to dissuade other employees from becoming mem- hers of the Union. It is apparent, and we find, that this was the effect of and the respondent's purpose in securing and insisting upon the presence of the "observers," 33 in installing the loud-speaker sys- tem and inviting employees to listen in upon the conference, and in casting aspersions on the Union's representatives. Such conduct was expressive of -hostility toward the Union, and indicated that the respondent would not meet with the Union as party of equal dignity, status, and responsibility even if satisfied that it had been designated by a majority of the employees. 37 At the hearing McBerty testified , in explanation of his causing the "observers" to be present, that he was "pretty well satisfied that up to that date [April 9, 1938] they [the employees ] didn't know anything about what was going on between the employer and the organizer. They knew these stories that the organizer told them. The organizer told us a different story." To support this accusation , McBerty testified that "a man from the Automatic Electric Company"-the respondent's competitor-bad come to Gallon and told the employees that their wages ought to be raised "to what [would ] amount to about 30%," but that Skundor prior to April 9 told "us" that "there would not be any such raise as 30% to these people. It would be a good deal less, something that we could agree on amongst ourselves, but they had to have something to go to tell the men so that they would come into their meetings." Although Skundor, at the organizational meeting of the Union on January 21, compared the wage scales in effect at the plants of the respondent and the Automatic Electric Company , Inc., there is no suggestion in any of the testimony that any "man from the Automatic Electric Company" had sought to organize the respondent 's employees at any time prior to the meeting between the respondent and the Union on April 9, 1938. 38 Cf. Matter of Lennox Furnace Co . Inc. and Syracuse Federation of Labor, 20 N. L. R. B. 962; Matter of Jasper Blackburn Products Corporation and District No. 9, Inter- national Association of Machinists, 21 N. L. R. B. 1240. 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD- Also 'unlawful was the respondent's action in questioning the Union's jurisdiction over the employees in the respondent's plant for whom it sought to act as representative and in setting up proof of jurisdiction as a condition to collective bargaining. The Act pro- vides that representatives, including any individual or labor organ- ization, designated or selected for the purposes of collective bargain- ing by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit, and that an employer may not refuse to bargain collec- tively with such representatives. The' Act does not require that em- ployees shall become members of a labor organization in order to designate it 'as their representative. So far as designation is con- cerned, joining a labor organization is only one of the ways of evi- dencing selection thereof as representative for the purposes of col- lective bargaining.3° Moreover, since intention to choose a labor organization for such purposes is shown by membership therein, it is immaterial that because of the provisions of the constitution and bylaws of a labor organization such membership is possibly de facto rather than de jure. Under the Act, whether employees shall choose as their representative a labor organization in which their member- ship would be technically ultra wires is a matter to be decided solely by the employees themselves, and their employer may not seek to affect such choice by threatening on that ground to refuse to bargain with such a representative.40 The record leaves no doubt that the respondent knew in advance of the meeting that it would raise the issue of jurisdiction and that it intended, by the presence of "observers" and the installation of loud speakers, to assure wide-spread knowledge among the employees of the respondent's position. By such conduct the respondent neces- sarily created in the minds of the employees doubt and uncertainty as to the utility of their joining the Union or designating it as their representative. We find that the effect of the respondent's action and its intended purpose was to discourage membership in and designation of the Union as collective bargaining representative. We find that the respondent, by its above-described conduct at and in connection with the meeting on April 9, 1938, interfered with, restrained, and coerced the employees in the exercise of their 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 39 The Act expressly contemplates that the Board "may take a secret ballot of employees or utilize any other suitable method to ascertain such representatives." ( Section 9 (c).) Cf.'Matter of Chicago Casket Company and Casket Makers Union, No. 19306, affiliated with the American Federation of Labor, 21 N L. R. B. 235. 40 Cf. Matter of Pueblo Cas ct Fuel Company and International Brotherhood of Elec- trical Workers, Local Union No. 667-B, 23 N. L. R. B. 1028. THE NORTH ELECTRIC MANUFACTURING COMPANY 575 bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 5. The newspaper advertisement On April 28, 1938, Olivier, a direct representative of the American Federation of Labor, and Pusateri, an international representative of the International Brotherhood of Electrical Workers, a labor organization affiliated with the American Federation of Labor, herein called the I. B. E. W., distributed handbills among the employees of the respondent, soliciting them to join the I. B. E. W4' Included in the handbills, as an example of the I. B. E. W.'s past success in improving the wages and working conditions of employees; were descriptions of a schedule of wages and hours and a vacation plan under which, the handbills stated, 750 persons, coming under the jurisdiction of and represented by the I. B. E. W. were employed at the plant of "one of the largest manufacturers of automatic tele- phone equipment in the country." During the evening of April 28, Olivier, who was acquainted with Davis, the respondent's secretary and treasurer, introduced Davis to Pusateri at the plant and at that same time freely conceded that the unnamed manufacturer referred to in the handbills was the Automatic Electric Company, Inc., Chicago, Illinois, which, as we have previously noted, is the respondent's only competitor in the manufacture of automatic tele- phone equipment for sale to independent telephone companies in the United States. On the afternoon of April 29, 1938, the respondent published in a Galion newspaper, over the names of the respondent, McBerty, and Davis, a full-page advertisement written by McBerty, which set forth in full one of the handbills distributed by the I. B. E. W. on the previous day, and clearly and unmistakably implied that the I. B. E. W. was being employed by the Automatic Electric Company, Inc., as a tool to destroy the respondent by placing it in a disadvantageous competitive position through increases in the wages of its employees. The .respondent contends that there is no evidence that this advertisement interfered with, restrained, or co- erced any employee in the exercise of his rights under the Act, and. that in any event, it constituted no more than an expression of McBerty's opinions and, as such, is protected by the First Amend- ment of the Constitution. a Skundor testified in substance that the Union and the I. B. E. W. had reached an agreement by which duplication of the organizational efforts of these . two A. F. of L. affiliates among the respondent's employees, and jurisdictional disputes between them, would be avoided. 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As we have recently pointed out : 42 Whether the words or actions of an employer constitute interference, restraint, or coercion, within the meaning of the Act, must be judged, not as an abstract proposi- tion, but in the light of the economic realities of the employer- employee relationship. It need hardly be stressed that the dominant position of an employer, who exercises the power of economic life and death over his employees, gives to an employer's statements, whether or not ostensibly couched as argument or advice, an im- mediate and compelling effect that they would not possess if addressed to economic equals. As the Circuit Court of Appeals for the Seventh Circuit has said, "The voice of authority may.. . . provoke fear and awe quite as readily as it may bespeak fatherly advice. The position of the employer . . . carries such weight and influence that his words can be coercive when they would not be so if the relations of master and servant did not exist." 48 In the Virginian Railway case 44 the Circuit Court of Appeals for the Fourth Circuit said : It must be remembered in this connection, however, that any sort of influence exerted by an employer upon an employee, dependent upon his employment for means of livelihood, may very easily become undue, in that it will coerce the employee's will in favor of what the employer desires against his better judgment as to' what is really in the best interest of himself and his fellow employees. The advertisement of April 29 was published little more than 3 months after the Union, which, like the I. B. E. W., is an affiliate of the American Federation of Labor, had instituted a drive to organize the respondent's employees. Shortly after the beginning of that organizational campaign, a group of employees, most of them supervisory, acting upon the instructions of a superintendent and an assistant superintendent, questioned the respondent's em- ployees at the plant during working hours as to their sentiments toward the Union. In February, the respondent forbade the dis- tribution of union authorization cards in the plant. In March, supervisory employees, in order to stimulate and provide expression for opposition to the Union among the employees, actively partici- pated - in obtaining an anti-union petition and circulated it in the plant, without reproof. In April, less than 3 weeks before the ad- vertisement appeared, the respondent utilized a meeting with rep- 42 Matter of Ford Motor Company and United Automobile Workers of America Local No. 325, 23 N. L. R. B. 342. +$ N. L. R. B . v. Falk Corp., 102 F. (2d) 383 (C. C. A. 7), aff'd 308 U. S. 453. 44 Virginian Ry. Co . v. System Federation No. 40, 84 F. ( 2d) 641 (C. C. A. 4), aff'd 300 U. S. 515. THE NORTH ELECTRIC MANUFACTURING COMPANY 577 resentatives of the Union to instill in the employees distrust of the Union's leaders and doubts as to the legal capacity of the Union to represent them for the purposes of collective bargaining. Mean- while, during the period since the Union's organizational campaign began, supervisory employees had threatened and coerced employees to dissuade them from union membership and activity, and the respondent had taken no substantial action to prevent such inter- ference. Under these circumstances, the advertisement was a plain warning to the respondent's employees, to whom the advertisement was ad- mittedly directed'45 of the respondent's hostility to their affiliation with the I. B. E. W. That this was the purpose of the advertise- ment was underlined by its concluding statements, that the "financial stability" of the respondent is "based on the income which the Com- pany [respondent] can get in competition with its big competitors and the wages it must pay," and, in bold face type, that "This basis must not be dictated to us by our competitors." It is unnecessary to determine whether McBerty in fact believed that the I. B. E. W.'s campaign was begun at the instance of the Automatic Electric Company, Inc.46 Nor is it material, and we make no determination as to whether the respondent was in part motivated by a belief that its employees' interests would be disad- vantageously affected by organization by the I. B. E. W. since the latter had also organized the respondent's competitor.47 The plain 45 McBerty testified that he "thought the matter ought to be aired , and that since we 'couldn't under the Wagner Act speak directly to our employees on any such subject, It was a good thing to put it into the paper and let everybody know it." He was then asked, "And you know, of course, that a great many of your employees read the paper or get to see It?" His answer was, "Yes." 40 It may be noted that while McBerty testified that Automatic Electric Company, Inc., had "taken a number of steps through the years which jeopardized the stability" of the respondent, and that the respondent has had to "repel those efforts through them . repeat- edly," he gave no details as to the alleged "steps" and "efforts," and , moreover, advanced no explanation whatsoever for the specific charge that the I . B. E. W. was acting at the Instance of the respondent 's competitor . Manifestly, no such Inference was warranted by the evidence adduced at the hearing as to the facts at McBerty 's command when he wrote the advertisement in question , to wit, that the I . B. E. W. had cited the labor con- ditions in effect at the plant of the Chicago competitor , that one of Its organizers drove an automobile with an Illinois license plate, and that the competitor in past years had been guilty of "steps " and "efforts" against the respondent. 47 Cf, Matter of Pacific Greyhound Lines, Inc . and Brotherhood of Locomotive Firemen and Enginemen, 2 N. L., R. B . 431. In that case, the respondent had urged , persuaded, and warned its operators not to join the Brotherhood . The respondent, however, sought to explain and justify such conduct on the ground that the Brotherhood had at times endeavored to curb the development and extension of motor transportation lines by appearing before various commissions in opposition to applications for franchise and by sponsoring and supporting legislation favorable to the railroads and their employees and inimical to the motor carriers and their employees . We said, "It may be that the Brotherhood , in its dual capacity of representative for the enginemen and firemen em- ployed In the railroad industry and for motor coach operators employed in the motor carrier transportation industry, at times finds itself representing two groups of employees with conflicting interests . This cannot, however, justify the respondent's conduct toward Its operators." See also Ohio Greyhound Lines, Inc. and Amalgamated Association of 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD implication of the advertisement was that the I,. B. E. W. was trying to destroy the respondent and was not concerned with the welfare of the respondent's employees. In the light of preceding events, it was unmistakably a warning that the respondent would oppose the I. B. E. W. and throw the weight of its economic power against the efforts of its employees to form or carry on such an organiza- tion, and that affiliation of its employees with the I. B. E. W. would result in the loss or lessening of their employment. We perceive no materiality in the circumstance that McBerty employed innuendo to discredit the I. B. E. W. whereas H. A. Helfrich had sought to injure the Union by characterizing its leaders as racketeers; or in the fact that Helfrich directly and verbally communicated to em- ployees the threat of reduced work in the event of their affiliation with the Union whereas McBerty used the roundabout method of a newspaper advertisement for the purpose of warning them that such would be the consequence of their affiliating with the I. B. E. W. We find that by the publication of the advertisement of April 29, 1938, the respondent interfered with, restrained, and coerced its em- ployees in the exercise of their 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 or protection, as guaranteed in Section 7 of the Act. 6. Other alleged interference, restraint, and coercion During the hearing, evidence was adduced to prove that the respond- ent interfered with, restrained, and coerced its employees by attempt- ing to bribe a union representative to abandon his organizational efforts; by granting a wage increase to an employee in order to dis- courage him from joining the Union; by announcing and enforcing certain plant rules, or threatening to do so; by demoting one employee and subjecting another to adverse working conditions; by the at- tendance of supervisory employees at the organizational meeting of the Union on January 21, 1938; by maintaining surveillance over an organizational meeting of the Union on April 12, 1938; and by publishing, in a full-page newspaper advertisement, the contents of the amended charge and the complaint herein. We have considered Street Electric Railway and Motor Coach Employees of America and Division 1207 (A. F. L.) 21 N. L. It. B. 751., More frequent has been the contention, which we have rejected, that an employer may justify refusal to bargain with a labor organization until such time as the labor organization organizes the employer's competitors . See Matter of Samuel Youlin, Murray H. Rosenburg, and Murray Youlin, doing business as I. Youlin and Com- pany, a copartnership and International Ladies Garment Workers Union, C. I. 0., 22 N. L. It. B. 879; Matter of Pittsburgh Metallurgical Company, Inc. and Local 12,077 gas and By-Products Coke and Chemical Workers Union, District 50, United Mine Workers of America, 20 N. L. R. B. 1077, and cases cited in footnote 27 therein. THE NORTH ELECTRIC MANUFACTURING COMPANY 579 this evidence and find that it does not establish that the respondent. has engaged in unfair labor practices; and since we have found that the respondent has otherwise interfered with, restrained, and coerced employees in the exercise of rights guaranteed in the Act, we shall not review such evidence in detail. C. The discharge of Charles Pfleiderer The complaint alleges that the respondent discriminatorily dis- charged Charles Pfleiderer, an employee, for the reason that he joined and assisted the Union and engaged in concerted activities with other employees in the respondent's plant for the purposes of collective bargaining and other mutual aid and protection. Pfleiderer, a journeyman machinist, was hired by Haspeslagh on February 28, 1938, to work in the tool and die department, under Lucius, and entered upon his duties on March 2, 1938. On Monday, March 21, 1938, Lucius gave Pfleiderer notice of discharge, and on the following Saturday, March 26, Pfleiderer's employment with the respondent terminated. The respondent, in its answer, admitted discharging Pfleiderer, but alleged that it did so because Pfleiderer was unwilling and unable to carry out the duties and functions with which he was charged, and was inefficient in completing the work and duties as- signed to him. At the time Pfleiderer was hired, the respondent required the services of a skilled "bench worker" to make experimental models from blueprints prepared by the respondent's engineering staff. When Pfleiderer was interviewed by Haspeslagh he explained that he had had little experience in this type of work, and expressed doubt as to his ability to ' perform it satisfactorily. Haspeslagh decided, however, to give him a trial. Pfleiderer's first assignment, on March 2, was to make a working model of a newly developed "harmonic ringer." His work on this project during the morning was unsatis- factory to his superiors, and it was taken out of his hands and reas- signed to a new employee who was hired that day. Thereafter Pfleiderer's tasks consisted principally of "machine work," rather than bench work 48 One of Pfleiderer's first assignments at machine work was the making of a bushing to be inserted in a die block. Lucius testified without contradiction that although it is common machinists' practice, in making such a bushing, to provide "taper-ream clearance," Pfleid- erer completed the bushing without providing the necessary clear- d8 Davis testified that it was reported to him that Pfleiderer was not capable of han- dling the work for which he was hired, and that be decided to transfer Pfleiderer to other work rather than dismiss him. 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ante and admitted to Lucius , when the latter called it to his attention, that he did not know that such clearance was required. Another of Pfleiderer's early assignments was to make a "punch " from Annite tool steel, for use in a press . Lucius testified without contradiction that "any tool maker or apprentice should know" that before such a punch is ready for use it must be put through two heating operations, "hardening" and "tempering." Pfleiderer failed to "temper" the punch before installing it for use, and, when Lucius called his at- tention to this omission, stated that he "did not know you had to." Both of the foregoing incidents were reported by Lucius to Haspeslagh. A few days after Pfleiderer had been transferred from model work, Haspeslagh and Lucius explained to him that, because he was engaged in machine work, he would be paid 65 cents an hour, rather than the 70 cents at which he was hired. Lucius testified that Haspeslagh told Pfleiderer at that time that he would be discharged unless his work improved, and that Pfleiderer, in accepting the lower rate, admitted that he "didn't show much of a promise to start with." Haspeslagh corroborated Lucius' testimony. Pfleiderer testified, how- ever, that Lucius told him during this conversation that he was "a willing and loyal workman . . . willing to learn," and that he was "doing all right." During the week preceding the transmittal to Pfleiderer of notice of his discharge, Lucius assigned to Pfleiderer the job of regrinding the slender points on two small punches. Pfleiderer placed the punches in the grinding machine, without, however, taking the pre- cautions of placing them in protective pads and setting the stops on the machine so that its field of operation would be restricted to one punch at a time. A few moments later he reported to Lucius, according to the latter's uncontradicted testimony, that he had broken off the points of both punches, explaining that the point of one punch broke off upon contact with the grinding wheel because he had failed to place it in a protective pad, and that the grinder then "got away" from him and snapped off the point of the second punch before he could stop it. At the hearing, Pfleiderer testified in substance that when he started the grinding operation, the clutch of the machine slipped, and the machine moved unexpectedly. There is no evidence that he made any such statement to Lucius at the time the breakage occurred. Lucius immediately instructed Pfleiderer to make two new punches to replace those he had broken. Pfleiderer proceeded to fashion and harden two punches. Upon inspection of these two punches while they were cooling, Lucius discovered that their points were badly bent, and concluded that they were unfit for use. Lucius thereupon reprimanded Pfleiderer severely, pointing out to him that his break- THE NORTH ELECTRIC MANUFACTURING COMPANY 581 age and spoilage of punches that day had been costly to the re- spondent. That afternoon at the commencement of the night shift, Lucius reported to Haspeslagh, according to his testimony, concern- ing Pfleiderer's poor record that day, and gave Haspeslagh his opinion that Pfleiderer had shown little promise. Lucius and Haspeslagh tes- tified that, upon receiving this report, the latter decided to discharge Pfleiderer and instructed Lucius to give him 1 week's notice, with the provision, however, that he might be permitted to stay on a day or two longer to complete current assignments.'" We are satisfied by the foregoing that Pfleiderer's work during the brief period between his hiring and discharge received the unfavor- able attention of his superiors, and that his spoilage and breakage of punches, coupled with his unsatisfactory record during the preceding weeks, constituted a sufficient and reasonable basis for discharging him. We, therefore, find it unnecessary to pass upon the evidence produced by the respondent for the purpose of proving that Pfleiderer had poor records for efficiency at plants at which he worked before his employment with the respondent, and, likewise, find that the Trial Examiner's denial of the respondent's offer to prove by medical examination that Pfleiderer was unable to perform the duties assigned to him did not constitute prejudicial error. However, our conclusion that Pfleiderer's record at the respondent provided a reasonable basis for discharge does not dispose of the case. The question remains whether this was the true reason, or whether in fact Pfleiderer was, as claimed by the Union, discharged because of his refusal to sign the anti-union petition on March 21, 1938, shortly before he was given notice of discharge.60 One circumstance raises considerable doubt as to the estimony of Lucius and Haspeslagh that the decision to discharge Pfleiderer was made upon the occasion when Lucius reported as to Pfleiderer's work on the punches. Lucius testified that Pfleiderer's breakage and spoil- age of the punches took place on the afternoon of Friday, March 18, and that his report to Haspeslagh and the latter's decision to dis- charge Pfleiderer were made that same afternoon."' Haspeslagh likewise testified that he received Lucius' report on Friday, March 18, and at that time instructed him to discharge Pfleiderer, and pro- duced at the hearing a pocket diary containing a corroborating nota- ID The testimony of Lucius and Pfleiderer is in conflict as to whether Lucius followed I3aspeslagh's alleged instructions when he gave notice to Pfleiderer . Pfleiderer asserted that Lucius told him that he might continue working for "10 days or 2 weeks or more" during which period he could be seeking employment elsewhere. 60 See Section III B 3 , supra. et Lucius , in explanation of his failure to give notice to Pfleiderer until after work had commenced on Monday, March 21, testified that the subject had been driven out of his mind by an accident in the plant which it was stipulated had occurred at 10: 30 a. M. on Saturday, March 19. 283035-42-vol. 24--38 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion to that effect. However, Pfleiderer's time slips, taken from the respondent's records, and purporting to describe the nature of the work performed by Pfleiderer, hour by hour, during his employment with the respondent, disclosed, according to Lucius' interpretative testimony, that Pfleiderer made no punches at any time from Thurs- day noon, March 17, to Saturday noon, March 19. The foregoing discrepancy is a serious one. In our opinion, how- ever, it does not lead to the conclusion that Pfleiderer was discharged because of his refusal to sign the petition, particularly in view of the short period of his employment, the clear proof of his superiors' dissatisfaction prior to March 21, and the circumstances to which we now advert. While Pfleiderer joined the Union as a charter member about July 1934 and was its president in 1936, according to his testi- mony, there is no evidence that he was prominent or active in the Union subsequent to 1936, or that he attended union meetings or par- ticipated in the Union's efforts to organize the respondent's em- ployees in 1938, nor is there any other evidence that his affiliation with the Union was known to the respondent. Indeed, he told Haspe- slagh at the time he was hired, according to Haspeslagh's uncontra- dicted testimony, that the latter "needn't worry about labor trouble, he was non-union . . . he never would be a union man . . . he fought his own battles." In other words, the evidence indicates that the respondent was not only unaware that Pfleiderer was a mem- ber of the Union, but had been assured by him that he was not in sympathy with the principles of collective bargaining. Although the respondent knew a number of its employees to be members of the Union, the record does not establish that the respondent sought to discriminate against any of them. On the other hand, the record shows that many employees besides Pfleiderer refused to sign the petition, without, so far as the record discloses, suffering any dis- crimination therefor. We find that the respondent did not engage in an unfair labor practice within the meaning of Section 8 (3) of the Act by dis- charging Charles Pfleiderer. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III B 1, 2, 3, 4, and 5 above, occurring in connection with the oper- ations of the respondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE NORTH ELECTRIC MANUFACTURING COMPANY 583 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 certain activities and practices in which we have found it to be en- gaged 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. 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 necessary that they be in- formed that the respondent will no longer engage in its unfair labor practices 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 not engage in the conduct from which it is ordered to cease and desist. ' We have found that the respondent expressed hostility to the af- filiation of its employees with labor organizations. We find that the effects and consequences of that interference, restraint, and coercion constitute a continuing obstacle to the free exercise of the right. of employees to self-organization and to bargain collectively through representatives of their own choosing. Accordingly, in order to ef- fectuate the policies of the Act, we will order the respondent to include in the' notices to be posted within its premises a statement that employees are free td become or remain members of Interna- tional Association of Machinists, Local 1151, International Brother- hood of Electrical Workers, or any other labor organization. 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. International Association of Machinists, Local 1151, and Inter- national Brotherhood of Electrical Workers, affiliated with the American Federation of Labor, are labor organizations within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The respondent has not engaged in unfair labor practices within the meaning of Section 8 (3) 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 Rela- tions Act, the National Labor Relations Board hereby orders that the respondent, The North Electric Manufacturing Company, Galion, Ohio, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) In any manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted ac- tivities, for the purposes of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act : 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post immediately in conspicuous places in its plant, and main- tain for a period of at least sixty (60) consecutive days from the date of the posting, notices to its employees stating that it will not engage in the conduct from which it is ordered to cease and desist in paragraph 1 (a) of this Order; and that its employees are free to join or remain members of the International Association of Ma- chinists, Local 1151, the International Brotherhood of Electrical Workers, or any other labor organization; (b) Notify the Regional Director for the Eighth Region in writ- ing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed, in so far as it is alleged that the respondent engaged in unfair labor practices by discriminating in regard to the hire and tenure of employment of Charles Pfleiderer; by attempting to bribe a union representative; by granting a wage increase to an employee in order to discourage him from joining the Union; by announcing and enforcing certain plant rules, or threatening to do so; by demoting one employee and subjecting another to adverse working conditions; by the attendance of supervisory employees at a union meeting; by maintaining surveillance over a union meeting; and by publishing the amended charge and the complaint herein.