Condenser Corp. of America

In the Matter of CONDENSER CORPORATION OF AMERICA AND CORNELL- DuBIUER ELECTRIC CORPORATION' and UNITED ELECTRICAL AND RADIO WORKERS OF AMERICA In the Matter of CONDENSER CORPORATION OF AMERICA and UNITED ELECTRICAL & RADIO WORKERS OF AMERICA In the Matter of CORNELL-DUBILIER ELECTRIC CORPORATION 1 and UNITED ELECTRICAL & RADIO WORKERS OF AMERICA Cases Nos. C-259, R-323, and R-324, respectively.Decided March 109, 1940 Electrical Condenser Manufacturing Industry-Employer: two corporations conducting single integrated business enterprise--Jurisdiction: corporation con- ducting manufacturing operations obtaining substantially all materials from second' corporation occupying same plant, and selling substantially all its finished product to said second corporation, held subject to Board's jurisdiction where second corporation is subject to Board's jurisdiction-Procedure: evidence taken prior to service on some parties of complaint and notice of hearing, not con- sidered with respect to such parties-Company-Dominated Union: permitted to organize in plant; delegates of unaffiliated organization sent by supervisors to meet in plant council room ; use of company property by organization's executive committee ; discharge of several employees for refusal to cooperate in organizing ; production halted during working time for organizational addresses and dis- tribution of application cards ; membership recruited by supervisors ; support rendered organization by vilifying and discrediting rival union in periodical published by management and distributed among employees ; respondents ordered to refuse to recognize as agency for collective bargaining-Interference, Restraint, and Coercion: assistance rendered affiliated union prior to execution of closed- shop contract with it : assisting union by vilifying and discrediting rival in periodical published by management and distributed among employees about 4 days prior to organizational campaign of favored union ; union invited to organize employees by company-dominated organization ; executive committee of company-dominated organization determined upon affiliating that organization with union ; leaders of union drawn largely from among leaders of company- dominated organization ; early shut-down of most operations in plant to permit employees to attend union mass meeting in advance of usual quitting time ; 'The respondent Cornell-Dubiller Electric Corporation was designated in the second amended complaint as "Cornell Dubilier Corporation." It was stipulated by counsel for both respondents and for the Board that on June 21, 1937, after the commencement of the hearing, Cornell Dubilier Corporation changed its name to Cornell-Dubilier Electric Corpo- ration. Pursuant to a motion by counsel for the Board at the hearing, the complaint, the caption in this proceeding, and any reference in papers in evidence to events subsequent to June 21, 1937, were amended to conform to the altered corporate name of the respondent Cornell-Dubilier Electric Corporation. 22 N. L. R. B., No. 16. 347 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD announcement of union mass meeting by supervisors upon dismissing employees in advance of usual quitting time ; favoring of union over rival in collective bargaining negotiations during period when employer knew both labor organiza- tions represented substantial minorities of employees ; membership recruited for Brotherhood in plant during working time by supervisor and clerk of another supervisor-Contract With Assisted Organization: executed as part of campaign of illegal assistance to favored organization held invalid ; respondent ordered to cease giving effect to any extension, renewal, or successor of such contract with favored organization-assistance rendered favored union subsequent to unlawful contract : enforcement of closed shop and check-off provisions ; favored union treated as exclusive bargaining representative although contract recognized it for its members only ; recruiting membership for favored union in plant by supervisors and non-supervisors ; discriminatory discharge and threats of dis- charge of employees for attending meetings of rival and for joining and assisting rival-Remedial Order: special form of : employer to withhold recognition of favored organization as representative of any employees until after final action by Board upon petition to investigate representatives ; employer to withhold recognition of favored organization as exclusive representative of any of its employees unless and until certified as such by Board or unless and until, after final action by Board upon petition, it is duly designated by majority of em- ployees in an appropriate unit-Discrimination: discharge of 14 persons pursuant to illegal closed-shop agreement not within proviso to Section 8 (3) ; dis- crimination found in discharge of several employees who encouraged others to engage in concerted activity before organization of union ; found as to employees discharged for participating in strikes or stoppages not sponsored by a union- Reinstatement Ordered-Back Pay: computation of : amount of net back pay due for period between date of taking of last testimony and date of issuance of proposed decision, reduced by one-half because of delay ; general wage increase, effective after discriminatory discharges, taken into account-Investigation of Representatives: controversy concerning representation : rival labor organization, each claiming to represent majority in substantially overlapping bargaining units; contract made subsequent to commencement of representation proceeding, no bar to-Unit Appropriate for Collective Bargaining: production employees excluding engineers, laboratory employees, shipping and receiving department employees, watchmen, maintenance, office and clerical employees, supervisory employees and foremen, but including checkers-Election Ordered: time for and elegibility date to be fixed after effects of unfair labor practices dissipated. Mr. David A. Morse and Mr. Will Maslow, for the Board. Mr. Abraham J. Rosenblum, of New York City, for the respondent Condenser Corporation of America. Mr. Merritt Lane, by Mr. John J. Clancy and Mr. Eugene Frey, of Newark, N. J., and Lord, Day i Lord, by Mr. John H. Vincent, of New York City, for the respondent Cornell-Dubilier Electric Cor- poration. Mr. Samuel L. Rothbard, Mr. Abraham Schulman, and Mr. Peter S. Patuto, of Newark, N. J., for the United. Mr. Salvatore Diana, of Plainfield, N. J., for the Independent.2 2 Mr Salvatore Diana was denied the right to represent the Independent during the latter phase of the hearing commencing on September 2, 1937, because it was admitted that that organization had ceased to exist. CONDENSER CORPORATION OF AMERICA 349 Mr. Andrew Zazzali, of Newark, N. J., and Mr. Isaac Lobe Straus, of Baltimore, Md., for the Brotherhood. Mr. Millard L. Midonick, of counsel to the Board. DECISION ORDER AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon charges and amended charges duly filed by United Electrical and Radio Workers of America, herein called the United, the National Labor Relations Board, herein called the Board, by the Regional Director for the Second Region (New York City), issued its com- plaint dated February 1, 1937, against Condenser Corporation of America, South Plainfield, New Jersey, herein called the respondent Condenser, alleging that the respondent Condenser had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. With respect to the unfair labor practices, the complaint in substance alleged (1) that on .or about specified dates the respondent Condenser had caused the discharge of certain named employees and had caused the demotion and resignation of other named employees because they had joined and assisted the United and engaged in con- certed activities for the purpose of collective bargaining and other mutual aid and protection ; and (2) that on or about January 18, 1937, the respondent Condenser had initiated, formed, and sponsored a labor organization or plans the administration of which it had since continued to dominate and control. The complaint and accom- panying notice of hearing, and subsequently an amended notice of hearing, were duly served upon the respondent Condenser, upon the United, and upon Condenser Workers Independent Union, herein called the Independent. On February 9, 1937, the respondent Condenser filed an answer to the complaint, denying the commission of the unfair labor practices alleged, denying the jurisdiction of the Board in this proceeding, and alleging that the procedure of the Board as set forth in National Labor Relations Board Rules and Regulations-Series 1, as amended, violates "the provisions of the Constitution of the United States with reference to `due process' and deprives the respondent of an oppor- tunity for a fair trial." 3 Condenser Workers Independent Union 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to notice, a hearing, herein called the former hearing, was held in Plainfield, New Jersey, February 15, 16, 17, 18, 19, and 23, 1937, before Emmett P. Delaney, the Trial Examiner duly designated by the Board. The Board, the respondent Condenser, and the Inde- pendent were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to produce evidence bearing upon the issues was afforded to all those who were parties at that time. At the commencement of the former hearing, and pursuant to notice, a motion was made on behalf of the Board to amend paragraph 3 of the complaint by naming ad- ditional employees alleged to have been discriminatorily discharged by the respondent on or about specified dates. This motion was granted, and the respondent Condenser was given 5 days from the date of service to file an answer. The respondent Condenser answered denying the additional allegations. At the commencement of the former hearing the respondent Con- denser moved to hold the hearing in abeyance pending the first Supreme Court rulings on the constitutionality of the Act, and this motion was denied. The respondent Condenser further moved to dismiss the complaint on the grounds (1) that the Act is unconstitu- tional; (2) that the respondent Condenser is not engaged in inter- state commerce and therefore the Board is without jurisdiction; (3) that the complaint fails to state facts sufficient to constitute a viola- tion of the Act; (4) that the complaint fails to state facts sufficient to constitute unfair labor practices within the meaning of the Act; and (5) that the procedure prescribed by National Labor Relations Board Rules and Regulations-Series 1, as amended, violates the Fifth Amendment to the Constitution of the United States. The motion to dismiss was denied by the Trial Examiner with respect to the first, third, fourth, and fifth grounds advanced, and upon the second ground ruling was reserved until the evidence with respect to the business of the respondent Condenser should have been received. On February 19, 1937, the United filed two petitions with the Regional Director for the Second Region. Both petitions are identi- cal except that in one the name of the employer is alleged to be Condenser Corporation of America and in the other, Cornell Dubilier Corporation, South Plainfield, New Jersey. In each petition it is alleged that the employees in the appropriate unit work in the plant of Condenser Corporation of America, South Plainfield, New Jersey, and "are indiscriminately employees of both Cornell Dubilier Cor- poration and Condenser Corporation of America." The United al- leged in, one petition that a question affecting commerce had arisen concerning the representation of employees of Condenser Corpora- tion of America, and in the other petition that a question affecting CONDENSER CORPORATION OF AMERICA 351 commerce had arisen concerning the representation of employees of Cornell Dubilier Corporation, herein called the respondent Cornell, and requested an investigation and certification of representatives pursuant to Section 9 (c) of the Act. On February 19, 1937, the Board, acting pursuant to Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 1, as amended, or- dered investigations with respect to both petitions and authorized the Regional Director to conduct them and to provide for appropri- ate hearings upon due notice. Notice of hearing on the petitions was duly served upon the respondents, the United, the Independent, and International Brotherhood of Electrical Workers, herein called the Brotherhood, a labor organization claiming to represent employees directly affected by the investigation. On February 19, 1937, pursuant to Article III, Section 10 (c) (2), of National Labor Relations Board Rules and Regulations-Series 1, as amended, the Board issued an order that the investigations arising on the petitions be consolidated for the purpose of hearing with the proceeding then in progress on the complaint. On February 23, 1937, counsel for the Board moved, pursuant to notice, to substitute for the amended complaint an amended com- plaint as amended, adding the respondent Cornell as a party respond- ent, and alleging that both respondents had engaged and were en- gaging in the unfair labor practices set forth above. On March 2, 1937, the respondent Cornell filed an answer to the amended complaint as amended, alleging that on February 27, 1937, it had filed a bill of complaint in the United States District Court for the District of New Jersey against the Trial Examiner and the Regional Director and had obtained an order requiring them to show cause on March 8, 1937, why they and their agents and representatives should not, pending the hearing of the cause before the District Court, be restrained from proceeding with the hearing on the complaint and petitions in this case, and that the bill of complaint prayed for a permanent injunction and other relief. The answer further alleged that the Act was unconstitutional on numerous grounds and that the Board was without jurisdiction over the respondent Cornell. The answer admitted certain of the allegations concerning the business of the respondent Cornell, but denied those concerning unfair labor practices. In particular, it denied the allegations of paragraph 9 of the amended complaint as amended, referring to the domination of and interference with the formation and administration of the Independ- ent, except that it admitted that the respondent Condenser had entered into a closed-shop agreement with the Brotherhood, (nowhere referred to in the amended complaint as amended), and contended that no order could be made by the Board which would not violate the contract rights established thereby. On March 3, 1937, the 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respondent Condenser filed its answer to the amended complaint as amended, (1) stating that it did not thereby waive its rights under the order of Judge Guy L. Fake of the United States District Court for the District of New Jersey, (2) admitting certain of the allega- tions concerning the business of the respondents, and (3) denying those concerning unfair labor practices. In its answer the respondent Condenser further denied that the Board had jurisdiction over it, and alleged that the procedure adopted by the Board in its Rules and Regulations violated the provisions of the United States Consti- tution with reference) to due process of law and deprived it of an opportunity for a fair trial. The temporary restraining order issued by Judge Guy L. Fake on February 27, 1937, was dissolved on March 22, 1937, by Judge William Clark, then also of the United States District Court for the District of New Jersey, and the bills of complaint brought by the respondents against the agents of the Board were dismissed. Thereafter, upon a fourth amended charge duly filed by the United, the Board by the Regional Director issued its third amended complaint,-' dated June 11, 1937, against both respondents, following in part the allegations of the amended complaint as amended, al- leging that the respondents had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act. Spe- cifically it was alleged that all the operations of the respondent ,Condenser and the respondent Cornell, including their labor policies, "have been and are being wholly dominated, directed and controlled .by Cornell Dubilier Corporation, and form a unified and integrated enterprise for the manufacture, sale, and distribution of radio con- densers." It was further alleged that on or about specified dates both prior and subsequent to the interruption of the hearing in this proceeding by the order of the court, the respondents had caused the discharge and the resignation of certain named employees be- cause they had joined and assisted the United and engaged in con- certed activities for the purpose of collective bargaining and other mutual aid and protection. In addition to the allegations in pre- vious complaints that the respondents dominated and controlled the formation and administration of the Independent, the third amended complaint further alleged that on or about February 18, 1937, the respondents induced the Independent to affiliate with the Brotherhood and coerced a majority of their employees into accept- ing membership in the Brotherhood; that in the name of the re- spondent Condenser the respondents then entered into a closed-shop contract with the Brotherhood; that this contract is still in exist- A Referred to hereinafter either as the "complaint" or the "third amended complaint." CONDENSER CORPORATION OF AMERICA 353 ence; that by these acts the respondents interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed by Section 7 of the Act, and did thereby engage and were thereby engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act; that by such conduct the Independent and the Brotherhood were established, maintained, and assisted, within the meaning of the proviso to Section 8 (3) of the Act; and that there- fore the closed-shop contract entered into between the respondents and the Brotherhood was void and of no effect. The third amended complaint was duly served upon the respondent Condenser, upon the respondent Cornell, upon the Brotherhood, and upon the United. On June 18, 1937, the respondent Cornell filed. an answer to the third amended complaint, denying the commission of the unfair labor practices alleged. It denied the allegations that the respond- ents had dominated the Independent and had induced it to affiliate with the Brotherhood and had coerced a majority of their employees to accept membership therein, admitting, however, that the Inde- pendent, or the members thereof, did affiliate with the Brotherhood, and that the respondents entered into a closed-shop contract with the Brotherhood and that the contract is still in full force and effect. The respondent Cornell further alleged the third amended complaint failed to state facts sufficient to constitute a violation of. the Act; that the Board had no jurisdiction over the respondent Cornell; that the injection of the respondent Cornell into this pro- ceeding by an amended complaint after voluminous testimony had been taken upon the original complaint while this respondent was not a party to this proceeding would be to deprive the respondent of its property without due process of law; that the effect of grant- ing relief in accordance with the third amended complaint would be to require the respondent Condenser, and to require the respond- ent Cornell, if the Board should hold it responsible for the con- duct of the respondent Condenser, to breach the closed-shop contract entered into between the respondent Condenser and the Brother- hood on, February 19, 1937, and if so construed the Act was un- constitutional for the reason that it impaired the obligation and interferes with the liberty of contract of the respondents; that the Act was violative of numerous other specified provisions of the United States Constitution; and that the respondent Cornell' was never the employer of any of the individuals named in the com- plaint or of any labor involved in the charges of unfair labor prac- tices alleged in this proceeding. On September 7, 1937, during the course of the resumed hearing, the Brotherhood filed an answer to the third amended complaint denying the commission of the unfair labor practices alleged, and 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD alleging that the respondents could not reinstate the individuals named in paragraphs 5 and ,6 of the complaint 5 without violating the closed-shop agreement entered into between the respondent Condenser and the Brotherhood; that the said agreement effective from Feb- ruary 19, 1937, to February 18, 1939, was valid and in full operation .and effect; that the impairment, abrogation, or annulment of this agreement would deprive the Brotherhood of its constitutional liberty of contract, deprive it of its property and its contractual rights with- out due process of law, and deny to it the equal protection of the laws. On September 27, 1937, during the course of the resumed hearing, the respondent Condenser filed an answer to the third amended com- plaint, denying the commission of the unfair labor practices alleged. It denied the allegations that the respondents had dominated the Independent and had induced it to affiliate with the Brotherhood and had coerced a majority of their employees to accept membership there- in, admitting, however, that the Independent, or the members thereof, did affiliate with the Brotherhood, and that the respondent Condenser entered into a closed-shop contract with the Brotherhood and that the contract is still in full force and effect. It further alleged that the third amended complaint failed to state facts sufficient to consti- tute a violation of the Act; that the Board had no jurisdiction over the respondent Condenser ; that the effect of granting relief in ac- cordance with the third amended complaint would be to require the respondent Condenser to breach its closed-shop contract entered into with the Brotherhood on February 19, 1937, and if so construed the Act was unconstitutional for the reason that it would interfere with the liberty of contract, destroy the contract rights of the respondent Condenser, and deprive it of property without due process of law; and that the Act was violative of numerous other specified provisions of the United States Constitution. Pursuant to notice, the hearing resumed in Plainfield, New Jersey, on September 2, 1937, and extended until October 15, 1937, before William Seagle, the Trial Examiner duly designated by the Board to act in place and stead of Emmett P. Delaney who had resigned from the staff of the Board prior to the resumption of the hearing. The Board, the respondent Condenser, the respondent Cornell, the Brotherhood, and the United were represented by counsel and partici- pated in the hearing. Salvatore Diana, who had appeared in the earlier hearing for the Independent, was denied the right to appear for the Independent or to participate in the proceedings upon the resumption of the hearing when he admitted that he did not believe that the Independent was still in existence at that time. He was also These include 64 of the 66 individuals named in the complaint The remaining em- ployees, Ann Coley and Phyllis Fisk, are named in paragraph 8 of the complaint. CONDENSER CORPORATION OF AMERICA 355 denied the right to appear for the witness Frank Diana, who was not a party. We affirm the rulings of the Trial Examiner in this regard. Full opportunity to be heard, to examine and cross-examine witnesses, and to produce evidence bearing upon the issues was afforded to all parties. On October 30, 1937, pursuant to stipulation, and again on November 30, 1937, pursuant to stipulation; depositions were taken of testimony by witnesses called on behalf of the respondents. Said depositions are hereby incorporated into the record herein. At the commencement of the hearing before Trial Examiner Sea- gle, herein called the resumed hearing," counsel for the Brotherhood objected, on the ground that this was the first appearance for the Brotherhood in the case, "to the admission into evidence of anything that has taken place heretofore." The objection was overruled. Counsel for the Board agreed that if the testimony of witnesses at the former hearing were not repeated and if the respondent Cornell and the Brotherhood were not confronted by those witnesses, their testimony at the former hearing would not be binding upon these parties. Counsel for the respondent Condenser and for the Brother- hood moved to dismiss the third amended complaint particularly in so far as it seeks to set aside the contract between that respondent and the Brotherhood. The motions were denied. During the course of the resumed hearing, the Trial Examiner ruled that the evidence adduced at the former hearing would be deemed binding upon the respondent Condenser because the resumed hearing was merely a con- tinuation of the former proceeding. Counsel for the respondent Condenser excepted on the ground that (1) an amended complaint had been filed, and (2) a new Trial Examiner was conducting the resumed hearing. Again at the close of the Board's case, counsel for the respondent Condenser moved to strike from the record all testimony taken at the former hearing on February 15 to February 19, 1937, inclusive, on the ground that the testimony was taken before another Trial Examiner. The Trial Examiner denied this motion. We affirm these rulings of the Trial Examiner in this re- gard. The third amended complaint did not alter the identity of this proceeding-but merely purported to alter the allegations of the amended complaint as amended to conform to the events which had transpired since its issuance. There is no merit in the contention that the evidence taken at the former hearing must be disregarded be- cause the Trial Examiner who conducted it did not also conduct the resumed hearing. Neither of the Trial Examiners filed an Interme- diate Report and therefore the findings of fact made by us, in the case of both the former and resumed hearings, -are equally without e As distinguished from the portion of the hearing held before Trial Examiner Delaney, herein called the former hearing 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD' the benefit of observation of the demeanor of the witnesses, and are similarly based upon the recorded stenographic transcript and ex- hibits in both hearings. At the close of the Board's case, and again at the close of the hearing, counsel for both respondents made numerous motions, some of which are here set forth. They moved to dismiss the complaint with respect to the alleged violations of Section 8 (1) and (3) as to 20 individuals 7 named therein who had failed to appear or give testimony in this proceeding. Counsel for the Board joined in the motion in the cases of Emily Raczyniski and Margaret Pipick. The motion was granted with respect to 17 of these individuals and denied with respect to Katherine Dolce, Arthur Chippendale, and John Di Vico. Counsel for the respondents excepted to that portion of the ruling denying the motion to dismiss, and counsel for the Board took exception to that portion of the ruling granting the motion except in so far as it related to the cases of Emily Raczyniski and Margaret Pipick. Counsel for the respondent Condenser then moved to dismiss the complaint with respect to Katherine Dolce, Arthur Chippendale, and John Di Vico on the ground that there was no evidence to sustain the charges as to them. Counsel for the Board opposed the motion on the ground that these three persons were discharged because they had been suspended from the Brotherhood. The Trial Examiner reserved decision on those motions. We hereby deny those motions for reasons indicated below. Counsel for the respondents moved to dismiss the complaint with respect to 14 individuals named in the complaint 8 on the ground that since they had been suspended from the Brotherhood, the respondent Condenser was merely performing the terms of its agreement with the Brotherhood in discharging them'. Counsel for the Board opposed the motion on the ground, inter alia, that the closed-shop contract relied upon had been entered into in violation of the Act. The motions were denied with leave to renew at the close of the respondents' cases, and exceptions were taken by counsel for the respondents. When the motions were renewed, the Trial Examiner reserved decision, and exceptions were taken. We hereby deny these motions for reasons indicated below. Counsel for the respondents moved to dismiss the complaint with respect to seven 7 Joseph Morelli , Charles Longo , Lou Faigle, Michael Jankowy, Norman Hinkle, Joseph J Bruzdowski , Vito Morelia, Mike Mazza, Dominio Ventrello , John Serido, Arvella Grove (named in the complaint as, "Pat Grove" and amended on motion ), Katherine Dolce, Louis De Fillipo, Arthur Chippendale, John Di Vico, Emily Raczyniski , Margaret Pipick, Joseph Elk, Thomas D'Amico, and Carmen Ferris!. 8 Michael Santoro, Fred Vitto, Katherine Dolce, John Sedon, Mary Schumacher , Arthur Chippendale, John D1 Vico, Ann Jacobs , Caroline Callecchio , Tessie Appezzatio , Michael Sabino, Herbert Rydberg, Katherine Fedoruk, and Frances Prohodka. CONDENSER CORPORATION OF AMERICA 357 persons 9 named therein stating that the record shows that they have been reinstated to membership in the Brotherhood and to the employ of the respondent Condenser and arguing that the Board has no authority under the Act to order back pay when employees have been previously reinstated. This motion, was denied by the Trial Examiner and exception taken. We hereby affirm. this ruling of the Trial Examiner. Counsel for the respondent Condenser moved to dismiss the complaint on the ground that there was no proof that the corporation was, engaged in interstate commerce. The Trial Examiner denied the motion. For reasons indicated below, we hereby affirm this ruling. Counsel for the respondent Condenser moved to dismiss the complaint and the petition on the ground that the United has never represented a majority of the employees in the plant. The Trial Examiner denied this motion, and we hereby affirm his ruling for the reason that it is not a condition under the Act to the relief to be ordered by the Board in this proceeding that the union filing charges or a petition prove that it represents a majority of employees. Counsel for the respondent Condenser moved to dismiss the com- plaint with respect to Cono Morello. This motion was granted by the Trial Examiner. Counsel for the Board consented to the dis- missal of the complaint in so far as it concerned Section 8 (3) charges with respect to this individual but excepted to the ruling of the Trial Examiner dismissing the Section 8 (1) allegation with respect to this individual as well. Upon a consideration of the en- tire record, we hereby affirm this ruling. Numerous other motions to dismiss part or all of the complaint were made by counsel for the respondent Condenser for want of proof and on other grounds. Each of these motions was denied by the Trial Examiner and exceptions were taken. We have considered these motions in connection with the record and we find no merit in them. We hereby affirm these rulings. One of the motions to which reference has just been made was based upon the ground that this respondent had been denied a fair and just trial. In the briefs filed by the respondents and the Brotherhood in support of excep- tions to the proposed findings of fact, proposed conclusions of law, and proposed order, this contention is reiterated. On page 6 of the brief for the respondent Condenser, counsel calls attention in this connection to "the last day's testimony, on which occasion he [the Trial Examiner] overrules every objection made by respondent's at- torneys and sustained almost every objection made by the Board's 9 Fred Vitto , Tessie Appezzatio, Katherine Fedoruk (erroneously spelled Feodorik in the complaint), John Spisso, Vincent Binicasso , John Mazza, Carmen Ferrisi ( erroneously transcribed as "Martin Sarissi"). 283033-41-vol. 22-24 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD attorney." While a proper determination of whether a fair hearing has been accorded generally requires reference to the entire record, we must note that counsel's quoted statement concerning the tran- script of one day of the hearing, presumably the portion of the tran- script best supporting his contention, is not in accordance with the facts. On the day referred to, counsel for the respondent Condenser was sustained in an objection on at least one occasion and the ob- jections of counsel for the Board were overruled on at least five oc- casions, and a motion on the part of counsel for the Board to strike certain testimony was denied. Aside from this reference, no specific instances of unfair treatment are cited by any party. No reference is made to any point in the transcript of the resumed hearing where the Trial Examiner is alleged to have rejected proferred exhibits and to have refused to permit such rejected exhibits to be included with the record for review of his ruling. At no time, including the occasion of the oral argument held February 15, 1940, has any party offered us any documents allegedly thus treated by the Trial Exam- iner so that we might rectify any error on his part. We have care- fully considered the entire record in this proceeding. We conclude that all parties were accorded a fair and just hearing, and we there- fore affirm the rulings of the Trial Examiner in this regard. At the close of the Board's case and at the close of the hearing, counsel for the respondent Cornell made numerous motions. A mo- tion was made to dismiss the complaint as to this respondent for lack of evidence that it is or was the employer of any of the persons named in the third amended complaint, and for want of proof that it committed either alone or in conjunction with the respondent Condenser any of the unfair labor practices alleged. The Trial Examiner denied these motions and exceptions were taken. For reasons indicated below, we hold that with respect to unfair labor practices shown to have been committed upon the basis of evidence adduced at the resumed hearing, the respondent Cornell and the respondent Condenser are equally responsible, and we therefore af- firm this ruling. Counsel for the respondent Cornell thereupon moved to dismiss the allegations in the third amended complaint in so far as they related to all persons who had testified or who had been named in the testimony taken during the former portion of this proceeding on the ground that during that portion of the pro- ceeding this respondent was not a party and that the testimony then taken was not binding upon it because it had been denied an oppor- tunity of cross-examining those witnesses during the period when it had been a party to the proceeding. This motion was granted by the Trial Examiner and an exception was taken by counsel for the Board. We hereby affirm the ruling of the Trial Examiner. We will disregard, moreover, with respect to the respondent Cornell, all CONDENSER CORPORATION OF AMERICA 359 evidence adduced at the former hearing. On the merits of the pro- ceeding, counsel for the respondent Cornell joined in the motions made by counsel for the respondent Condenser in so far as they related to employees of the respondent Condenser named in the com- plaint who had testified since the respondent Cornell has appeared in this proceeding. The Trial Examiner ruled and reserved ruling in the same planner as he had in passing upon the respective motions made in behalf of the respondent Condenser, and exceptions were taken. We hereby rule with respect to the respondent Cornell in the manner we have ruled in regard to the respective motions of the respondent Condenser. At the close of the Board's case and at the close of the hearing, counsel for the Brotherhood moved to strike from the record all testimony taken prior to its intervention in the proceeding at the time of the resumption of the hearing. The Trial Examiner granted this motion to the extent of ruling that no findings with respect to the Brotherhood would be made except on the basis of •evidence in- troduced since the resumption of the hearing. We affirm this ruling of the Trial Examiner. Counsel for the Brotherhood then moved to dismiss the third amended complaint on the ground that the Board was without power to set aside the contract entered into between the Brotherhood and the respondent Condenser on February 19, 1937. This motion was denied by the Trial Examiner. We hereby affirm this ruling. Counsel for the Brotherhood made various other mo- tions to dismiss the third amended complaint or portions of the third amended complaint on the ground of the insufficiency of proof and upon other grounds. These motions were denied by the Trial Exam- iner. We have considered these motions in connection with the record, and we find no merit in them. We hereby affirm these rulings. During the course of the resumed hearing, counsel for the Board moved to dismiss the allegation of the third amended complaint with respect to six individuals named therein 10 These motions were granted by the Trial Examiner. We hereby affirm these rulings for the reasons set forth below. A motion by counsel for the Board at the conclusion of the Board's case to amend the pleadings to conform to the proof was granted. At the close of the hearing, counsel for the respondent Condenser moved to dismiss the petition in the representation proceeding on the ground that the evidence shows that the Brotherhood represented a majority in the plant on February 19, 1937, when the closed-shop 10 John Huyler, John Holden, May Boland , Victoria Howell, Margie Dimuria , and Mar- garet Pipick with respect to the latter employees , as well as Emily Raczyniski , we have noted above that counsel for the Board joined in a motion to dismiss made by counsel for the respondents. 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contract was executed. We affirm the Trial Examiner's ruling deny- ing the motion for reasons indicated below. By order of the Board, dated October 18, 1937, the proceeding was transferred to and continued before the Board in accordance with Article II, Section 37, of the Rules and Regulations. On December 9, 1937, upon due notice to the United and to the respondent Conden- ser, and on June 28, 1938, upon due notice to the United, the respond- ents, the Brotherhood, and the Independent, hearings for the purpose of oral argument were held before the Board. On December 9, 1937, the United and the respondent were represented and participated. On June 28, 1938, the United, the respondents, and the Brotherhood were represented and participated. Counsel for the respondent Condenser and for the Board have filed briefs which have been fully considered by the Board. The Board has reviewed the rulings of the Trial Examiners on motions and on objections to the admission of evidence and finds that no prejudicial errors were committed. The rulings are hereby affirmed. An- order of the Board, dated September 3, 1938, directed issuance of proposed findings of fact, proposed conclusions of law, and pro- posed order, and the right was granted to all parties to file exceptions, to request oral argument and to file briefs upon the receipt thereof. It was further directed that no Trial Examiner's Intermediate Re- port should be issued. On December 2, 1939, the Board issued and duly served upon the parties proposed findings of fact, proposed con- clusions of law, and proposed order herein. Exceptions thereto and further briefs thereon were filed by the respondent Condenser, the respondent Cornell, and the Brotherhood. On February 15, 1940, upon due notice to the United, the respondents, and the Brotherhood, hearings for the purpose of oral argument were held before the Board. The United, the respondents, and the Brotherhood were represented and participated. At the hearings for the purpose of oral argument held before the Board on February 15, 1940, motions were made by the respondents and the Brotherhood, in accordance with written notices of motion theretofore filed, that the record be reopened. to take evidence as to the existence and validity of a certain collective agreement made in 1939 by the respondent Condenser and the Brotherhood, as to the circumstances surrounding the execution of this agreement which is now in effect, and generally with respect to labor relations in the respondents' plant since the date of the execution of the original contract of February 19, 1937. For reasons hereinafter set forth these motions are denied. The Board has considered the exceptions, filed by the respondents and by the Brotherhood to the proposed findings of fact, proposed CONDENSER CORPORATION OF AMERICA 361 conclusions of law and proposed order herein, and the briefs filed and oral arguments made on behalf of the parties in connection therewith, and, in so far as they are inconsistent with the findings, conclusions, and order set forth below, finds them to be without merit. Upon the entire record in the cases, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENTS A. Corporate structure On May 22, 1933, Dubilier Condenser Corporation and Cornell Electric Manufacturing Company, Incorporated, organized Cornell Dubilier Corporation under the laws of the State of New York. The new company took over the manufacturing business of those two companies and surrendered its entire capital stock to be equally divided between them. The two old companies, herein called the holding companies, have not since engaged in manufacturing opera- tions. The same stock ownership was preserved when Cornell Dubilier Corporation of New York was succeeded on October 31, 1936, by Cornell Dubilier Corporation of Delaware, herein called the respondent Cornell. The latter, incorporated on October 22, 1936, under the laws of the State of Delaware, altered its name on June 23, 1937, to Cornell-Dubilier Electric Corporation, the present form. All the outstanding voting stock of the respondent Cornell • has been deposited under a voting trust agreement dated October 23, 1936, its term to extend until October 22, 1946, unless sooner termi- nated either by the unanimous action of the voting trustees or by the holders of voting trust certificates representing 75 per cent of the shares of stock deposited thereunder. The voting trustees are Octave Blake, director and president of the respondent Cornell, Buell Hollister, director and chairman of the board of the respondent Cornell, and Herbert H. Maass, a person with no other formal con- nection with the corporation. Condenser Corporation of America, the other respondent in this proceeding, was incorporated on August 18, 1927, under the laws of the State of New York. Since February 23, 1937, one-half of the stock of the respondent Condenser was owned by each of the above- mentioned holding companies, each of which at that time was the beneficial owner of one-half of the voting stock of the respondent Cornell. On August 28, 1937, shortly before the resumption of the hearing, the respondent Cornell issued and sold 62,328 new shares of its com- 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mon stock, and with part of the proceeds purchased all of the out- standing capital stock of the respondent Condenser; the respondent Condenser has since been a wholly owned subsidiary of the respond- ent Cornell. Both respondents are now under the control of the voting trustees who hold the stock of the respondent Cornell. B. Business relationship between the respondents and the nature of their business Commencing in August 1936, some months prior to the unfair labor practices alleged in the complaint, both respondents moved to South Plainfield, New Jersey, into one large plant leased by the respondent Cornell. There both respondents now maintain all their offices, laboratories, and factory buildings, and conduct all manu- facturing operations. The respondent Cornell does not alone directly perform manufacturing operations at the South Plainfield plant or elsewhere. This function is supplied by the respondent Condenser as described below. Together the respondents are engaged in the manufacture and sale of various types of capacitors, known also as fixed electrical condensers. Capacitors are devices for storing electrical energy between two or more conducting surfaces separated by a non-con- ductor, and are for use in radio, electrical communications, automo- tive, X-ray, and other equipment; for use in electrical household appliances of many kinds, in rectifying devices, in power factor correction in public utility lines and industrial plants, and in many other miscellaneous devices. The respondent Cornell is one of the two leading corporations in the capacitor industry, which industry in 1936 had a total output valued at about $12,000,000. In 1936, the sales of the respondent Cornell, together with the small quantity of sales by the respondent Condenser, amounted approximately to $2,750,000. All manufacturing operations are directly performed by the respondent Condenser alone, and all production workers in the plant, varying in number from 1250 to 1600, are directly employed by it. The respondent Cornell purchases practically all of the raw ma- terials used by the respondent Condenser in its operations, sells these materials to the respondent Condenser, and except for small quan- tities sold by the respondent Condenser to certain customers, pur- chases from the respondent Condenser all of the respondent Con- denser's finished products. All the capacitors sold by the respondent Cornell are manufactured for, it by the respondent Condenser. Under an arrangement between the respondents, the respondent Cornell furnishes the respondent Condenser manufacturing facilities and CONDENSER CORPORATION OF AMERICA 363 materials and advances funds to meet costs of labor and labor super- vision. Intercorporation charges between the respondents, including the price paid by the respondent Cornell for finished products, are made at substantially the costs to the respective corporations, the transactions being adjusted by bookkeeping entries. The costs, upon which such charges are based, include the cost of labor. C. Relations to convmerce The principal raw materials used in the manufacture of capacitors are mica, glass, foil, aluminum, wire, and paper. About 90 per cent of the raw materials purchased by the respondent Cornell are shipped to its plant in South Plainfield, New Jersey, where the respondent Condenser is also located, from points outside the State of New Jersey. The respondent Cornell sells its capacitors through more than 40 commission sales representatives who operate throughout the United States. It also sells to jobbers. It has an arrangement with an exporting firm for the sale and distribution of its products in several foreign countries. About 90 per cent of the capacitors sold by the respondent Cornell are shipped by it, from the South Plainfield plant where they have been manufactured by the respondent Condenser, to customers and points outside the State of New Jersey. Its capaci- tors are advertised nationally in 24 electrical and radio journals as well as through distribution of a house organ to more than 25,000 radio and electrical appliance service and repair men. II. THE UNIONS United Electrical and Radio Workers of America is a labor organi- zation affiliated with the Committee for Industrial Organization." It admits to membership all the production employees and checkers at the South Plainfield plant of the respondents. Local No. 1041-B, International Brotherhood of Electrical Work- ers, is a labor organization affiliated with the American Federation of Labor. It admits to membership all the production employees at the South Plainfield plant of the respondents. Condenser Workers Independent Union was an unaffiliated labor organization formed to admit to membership employees of the re- spondents on and after January 20, 1937, but disbanded during the week of February 15, 1937. 11 Now the Congress of Industrial Organizations. 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. The Borough of South Plainfield In 1929, Spicer Corporation, the owner of the plant now leased by the respondent Cornell, moved from South Plainfield, leaving the town's population of approximately 5000 persons without its principal source of income. Faced with severe conditions of unemployment and consequent loss of purchasing power in the community sufficient to support local business, the Chamber of Commerce in 1931 or 1939, appointed an Industrial Committee of three men including William Thornton and Frank Diana, a salesman of insurance and automobile club memberships. The function of the Industrial Committee was to induce industries to move into South Plainfield. In July 1936 , after the tax assessor had reduced the taxes on the plant at Diana's request , and after the respondents had satisfied them- selves about the local labor situation , they decided to move. Com- mencing in August 1936, the respondents transferred their operations over a period of months to South Plainfield. During July 1936, Diana voluntarily aided the respondents to recruit their staff , largely from among the residents of South Plainfield . During September 1936, Diana was employed for 3 weeks by the respondents to aid in reconditioning the plant . By December 1936 or January 1937 , all the moving had been completed . Both respondents were located in the South Plainfield plant prior to the commencement of any and during the commission of all of the unfair labor practices described below. B. Background of organization of the United, and the respondents' reaction to it From August to December 14, 1936, there was no move to organize the employees of the respondents in South Plainfield. Low wages and difficult plant conditions gave rise to increasing dissatisfaction during this period. On December 16, 1936, Edward Hughes, em- ployed in the South Plainfield plant as head checker, was discharged. On December 17, 1936, the checkers , a group numbering between 10 and 15, met by arrangement at the home of Herbert Peterson, one of their number, to protest Hughes' discharge. One checker present at this meeting was an employee named Mitchell Zieborak . Zieborak was also in the employ of S. H. Connors, Inc., a detective agency whose services are utilized by the respondents. At the meeting, it was planned to approach the management and to communicate with the Committee for Industrial Organization for the purpose of or- ganizing a permanent labor union in the respondents ' plant. Within the next few days, according to the testimony of Zieborak , all the checkers were discharged except himself and another . On January CONDENSER CORPORATION OF AMERICA 365 8, 1937, a committee of the discharged checkers headed by Joseph Russo visited James B. Carey, president of the United, in his New York City headquarters. On January 14, 1937, the first mass meeting of the United was held at the International Ladies Garment Workers Union hall in Plainfield, a nearby town. On January 18, 1937, a second mass meeting was held at which the United installed its local charter and elected its local officers. On January 19, 1937, Carey dispatched a letter to Octave Blake, president of the respondent Cornell, asserting that the United repre- sented a majority of employees in the plant, demanding recognition of the United as a bargaining agent for these employees, and re- questing a conference with Blake. On January 25, 1937, the requested conference took place, but before further describing the experiences of the United and its members, we will turn our attention to the organization of the Independent. C. The rise of the Independent Diana sent word to those of the discharged checkers who resided in South Plainfield that he would aid in their reinstatement if they would meet him on the night of January 20,1937, at the Silver Moon, a nearby night club. At the meeting, Diana arranged to meet the South Plainfield checkers again on the next morning and to inter- cede then with Blake for their reinstatement. He also suggested that an independent labor organization be formed to engage in social activities and to bargain with the respondents for the purpose of adjusting in the future such "grievances" as had arisen in the case of the checkers. He stated that his services were available for the advancement of such a project. On the morning of January 21, 1937, Diana obtained an appointment with Blake at the plant for himself and approximately nine checkers. Haim Beyer, secretary and treasurer of the respondent Cornell, was also present. We find that the testimony of Diana, a ,witness hostile to the Board, accurately portrays what happened at the meeting. He testified at the resumed hearing : A. I told Mr. Blake at the time we were putting these boys back to work, that these boys wanted to have an organization there, and were going to organize the workers in the plant. Q. Did Mr. Blake say anything when you said that? A. No; he says he had no objection. Q. (By Mr. Maslow.) Did you ask for permission to distribute cards in the plant at that time? 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. We didn't talk about cards at that time, we asked him permission to organize. Q. And, he said you could have that? A. Yes. Q. And, did you attempt to organize in the plant the next few days after January 21st? A. We did. He gave me permission to go ahead with the organization. Diana further testified that Blake gave him permission to use the plant telephone for the purpose of informing the various department heads or other persons in authority that each department was to select representatives for the purpose of forming an executive com- mittee for the Independent. Diana directed the department heads to send the representatives of each department to the council room. Diana testified also that he received permission from Blake, Beyer, and Arnold,12 to use the property of the companies, and meetings of the Independent execu- tive committee were in fact held in the conference room of the plant from time to time commencing shortly thereafter. Carmine Guili- ana, departmental representative on the Independent executive com- mittee, testified that the first meeting was held during working hours and that he asked and received permission to attend it from his foreman, Jimmy Morris. Harold Brafman, foreman in charge of department 8, testified that Max Bleich, treasurer and production superintendent of the respondent Condenser, gave him the following information with respect to the Independent: A. Just that we have an independent union and try to work with delegates. Q. Try what? A. Try to work with the members, rather the delegates of each department. Q. Did you work the delegates? A. I worked with them. Diana further testified that he obtained permission from either Blake or Beyer to distribute the white membership application cards 13 of the Independent in the plant, and that he informed the members of the Independent committee that he had received per- mission to distribute the cards in the plant. The executive com- mittee proceeded to distribute the cards both in and out of the plant. Diana himself distributed the cards in the plant, and he William F. Arnold was president of the respondent Condenser. is Board Exhibit No. 5. CONDENSER CORPORATION OF AMERICA 367 disseminated at the same time the information concerning his per- mission from the management. He testified : I told the workers when I went in the plant with the cards, that I had permission to come in the plant and pass out these cards, and they didn't have to worry whether they signed them or not, and I think that is the word I told them. Among the departmental representatives who served on the In- dependent executive committee was Lena Sinisgali, clerk of Manny Sanchez, foreman in charge of department 11 of the South Plain- field plant. While the Independent was thus being formed, the respondent took steps to impede the progress of the United. Diana requested the checkers for whom he had succeeded in obtaining reinstatement on January 21, 1937, to meet him in a pool room opposite the plant on January 27, 1937, for the purpose of furthering the projected independent labor organization. The checkers appeared at the ap- pointed time but did not find Diana, who had been delayed. They left a written message for Diana indicating that they had decided not to cooperate in the furtherance of his project. Diana testified that he received this communication and that he could not recall whether the message also stated that the checkers intended to proceed with the organization of the United. Diana further testified at the resumed hearing that he was unable to remember whether he reported this turn of affairs to Blake. On January 28, 1937, the day after Diana had received word that they were not in sympathy with the Independent, the checkers who had been reinstated on January 21, 1937, to various positions in several departments of the plant, were discharged. This time Diana took no further, interest in reinstating the checkers. It is obvious that all these discharges were not fortui- tous, and we can only infer that Diana informed the management of the sentiment displayed by the checkers. About February 1, 1937, Diana delivered addresses in the plant to the employees of at least six or seven of the departments. The ad- dresses were made in behalf of the Independent as part of its organ- izational drive. The employees in each successive department were ordered by the respective department heads to stop operations during working hours and to gather to hear Diana. We find these facts on the basis of the testimony of numerous employees who heard the speeches, of Diana himself, of several foremen in charge of depart- ments where Diana spoke, and of Max Bleich, treasurer of the respondent Condenser and production superintendent of the plant. Bleich himself admitted that he happened upon one of Diana's audi- ences during a speech which was being delivered during working hours, and that he allowed Ed Munn, foreman in charge of that 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD department, to keep the employees from resuming production until Diana concluded. Harold Brafman, foreman in charge of approxi- mately 125 employees who composed the personnel of department 8, testified that he ordered production stopped for Diana's address only after consulting Bleich. Tangney, foreman in charge of department 14, testified that he consulted Bleich during the course of a speech in his department and that Bleich gave his approval. Bleich testified that an order to stop production for the speeches could have come only from him and that he gave none. To the extent that Bleich's testimony is inconsistent with that of the foremen, we find it not worthy of credence. Upon the basis of the evidence set forth above it is obvious that the respondents rendered invaluable service to the Independent in its organizational drive. Diana himself admitted on the witness stand that the Independent application cards were dis- tributed among the employees while he spoke. We credit the testi- mony of Ann Jacobs, a production employee in department 9, indi- cating that during and after Diana's speech in department 9, two supervisory employees known as "Gertie" 14 and "Mary K." distrib- uted Independent cards among the employees in the plant during working hours. Alin Jacobs testified that "Mary K." told her and several others within her hearing that "if we did not sign them we would be sorry." We credit the testimony of Augusta Kane, a pro- duction employee in department 8, who disclosed that the following persons distributed Independent cards through her department dur- ing working hours on the morning of February 1, 1937: (1) the witness' immediate supervisor, Gertie Frankel; (2) Henrietta Schaef- fer, secretary to Greenberg, who was the foreman in charge of depart- ment 9; and (3) Walter Deutsch, assistant head foreman of depart- ment 9. On the afternoon of the same day, Deutsch returned to Augusta Kane's table in the company of Schaeffer and Gertie. Augusta Kane described in her testimony the conversation which ensued : Well, about 2:30 on February 1 he came around to me and he asked me where my card was. I said "Well, I am not handing in my card, I am not signing this card, at all." He said, "Why aren't you?" I said, "First of all, what are these cards for?" He said, "Well, it's going to be an inside union." Q. What else did Mr. Deutch 15 say? A. Mr. Deutch said to me, he said-it was going to be an inside union and I said all right and he said that this inside union, well, he said it was going to give us recreation such as ball games and dances. And I said, "We are not going to be 11 Gertie Frankel. 15 So in transcript ; Deutsch is the correct spelling CONDENSER CORPORATION OF AMERICA 369 foolish and sign up just for recreation." I said, "We are inter- ested in wages." I said that the C. I. O. guaranteed us more wages, so he looked at me and he said, "Oh, you're one of them?" I didn't know what he meant by that and this Miss Schaeffer, she said, well she said "If this C. I. O. gets in here" she said, "We are going to pack up and get out of town." She said, "That's what we did in New York." Q. Just a minute. Was Miss Schaeffer standing alongside of Mr. Deutch when the statement was made? A. Yes; there were three of us, Mr. Deutch, Miss Schaeffer, and Gertie. Deutsch's silence during Schaeffer's remarks conveyed the impression of acquiescence. Early in February 1938 Margaret Gibbs, production employee in department 7, was approached during working hours while in the company of several other employees by Sarah Martin, supervisor in charge of the presses in department 7. We find that the following testimony of Gibbs accurately indicates the nature of Martin's state- ments at that time concerning application cards of the Independent :16 A. She told us if we did not sign those cards to join the union, she said, "Either you sign those cards or else." When we asked her if we had to sign them, she said that. Q. What did she say? A. She said, "Either you sign the cards or else." As early as January 27, 1937, John Higgins, production employee, observed the distribution of Independent cards in the plant, although not during working time, by Rose Kemp, supervisor on the initial test bench in department 13. On or about the night of February 1, 1937, the Independent con- ducted a mass meeting at Park Theater, South Plainfield. Tempo- rary officers were elected, among them being Andrew Cvetko, chair- man. Thereafter, a'series of meetings of the Independent executive committee and the Independent officers were held in the plant con- ference room. The meetings were generally held during the working hours by some of the representatives who were present. Diana was present at all meetings as an honorary member. Cvetko, the chair- man, testified that he would allow Diana to conduct the meetings because he, Cvetko, was without experience or knowledge in these matters. When the executive committee desired to negotiate with the management, Blake would be called in, and if he was unavail- able, Beyer. It is important to note that the former was president and the latter secretary and treasurer of the respondent Cornell, "Board Exhibit No. 5. 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and that neither was officially connected with the respondent Con- denser, which the respondents argue was the only employer of virtually all the workers in the South Plainfield plant. Cvetko testified that in view of the executive committee's inexperience, Diana was appointed to the committee and given the full power to negotiate with-the management. After a few days of negotiations, the management agreed early in February 1937 to grant a general increase of 3 cents an hour in the basic wage rate to take effect on February 15, 1937. Notices were posted in the plant reading in part: The Management is very pleased to announce that as a result of negotiations with a committee of the Condenser Workers In- dependent Union, representing a majority of the workers in the Condenser Corporation plant, an increased pay of three cents per hour was negotiated. The increased wages will in no way reduce the bonus plan, which will continue along on the same allowed-hour basis as previously, but with the new increased base. Starting February 15, 1937, . . . the increase will become effective .. . We find that it was not shown to the respondents at any time that the Independent represented a majority of their employees, either generally or in any unit appropriate for the purposes of collective bargaining. On February 11, 1937, there was published an issue of a periodical called "The C-D Condenser." Both the news and editorial columns of this issue were largely given over to a thoroughgoing attack upon the United through propaganda vilifying Carey, its president, and John L. Lewis, chairman of the Committee for Industrial Organiza- tion. It was reported that activities of the United and of other affili- ates of the Committee for Industrial Organization in other plants had had disastrous effects upon the welfare of the workers involved, and employees of the respondents were urged to heed in this connection : A FEW WORDS TO THE WISE DON'T LET THAT HAPPEN HERE! In a box prominently displayed on the front page of 'the same issue was a statement signed "Frank A. Diana" and addressed "To C. C. A. Workers from the C. W. I. U." In the statement , Diana said he was CONDENSER CORPORATION OF AMERICA 371 ready to fight on the side of the employees for the betterment of conditions, and concluded : I an friendly with both the executives of the Company and the workers and I am going to look into both sides and see that everyone gets a fair deal , and that everyone will be happy in the Borough. Clara S. Leary, director of personnel for the respondent Con- denser, testified that "The C-D Condenser" "was a plant organ pub- lished by the factory and distributed in the plant among its em- ployees." Blake, president of the respondent Cornell, testified that since August 28, 1937, when the respondent Condenser became a wholly owned subsidiary of the respondent Cornell , the respondent Cornell has paid the expenses of publishing "The C-D Condenser." Since the respondent Cornell assumed the expenses of publication upon assuming control of the respondent Condenser, it is clear that previously, and at the time that the issue in question was published, those expenses were borne by the respondent Condenser . The ex- penses of publication to which Blake referred included the salary of the editor, Joseph Calcaterra , whose name appeared as editor upon the February 11, 1937 , issue. Upon the masthead of that issue it is set forth that the paper is "Published to Promote the Mutual Inter- ests of the Cornell -Dubilier Corporation and Its Employees." It is obvious that "The C-D Condenser" was being published and distrib- uted on February 11, 1937, by the respondent Condenser with the approval of the respondent Cornell, and that it was and is regarded by the employees 'generally as expressing the views of the manage- ments of both respondents. Upon the basis of the evidence , introduced during the resumed hearing, it is clear that the Independent was formed at the instiga- tion of the respondents , in order to destroy the United. We find that the respondents, and each of them, have dominated and inter- fered with the formation and administration of the Independent, and that they have contributed support to it. The respondents have thereby interfered with their employees in the exercise of the rights guaranteed by Section 7 of the Act. D. The organization of the Brotherhood prior to the execution of the February 19, 1937, contract 1. The relationship between the Independent and the Brotherhood By January 25, 1937, the respondents had had their first conference with representatives of the United and were attempting to discourage its development by the series of discharges mentioned above and by 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other means discussed hereafter. On February 1, 1937, the Board issued its original complaint and served it shortly thereafter upon the respondent Condenser and upon the Independent. This com- plaint, referring to the Independent by description, alleged that it was a labor organization dominated by the respondents. The evi- dence indicates that thereupon the respondents relinquished the hope of establishing the Independent as a permanent organization, and that they sought instead to evade the provisions of the Act by assist- ing the Brotherhood. The third amended complaint alleges that "On or about February 18, 1937, respondents, by their officers and agents, induced said Con- denser Workers Independent Union to affiliate with the International Brotherhood of Electrical Workers, a labor organization within the meaning of Section 2 (5) of said Act." Shortly prior to February 11, 1937, it was first suggested at a meeting of the Independent executive committee that it would be politic to "affiliate" with the American Federation of Labor. The success of the Independent in obtaining, within the space of a few days, recognition and a greater wage increase than it had in the first instance demanded 17 might have been expected to encourage it to resist the Brotherhood as it had the United. Nevertheless, Cvetko, although knowing so little of union affairs that he, as chairman, was unable to conduct meetings of the Independent executive committee, testified that he was the first to suggest to the Independent execu- tive committee an "affiliation" with the American Federation of Labor. On the other hand, Charlotte Van Nest, member of the Independent executive committee, testified that she had requested Diana to communicate with the Brotherhood for the purpose of bringing that organization into South Plainfield, without consulting the Independent executive committee at all. She testified that she "wanted to give them stronger than the inside union," although she admitted that the inside union had shown no signs of weakness whatever. It is noteworthy, however, that on February 1, 1937, the complaint had been issued by the Board which alleged that the Independent was company dominated. Diana testified that on February 11, 1937, he called William Beedie, international representative of the Brotherhood, and requested him on behalf of the Independent to visit South Plainfield for the purpose of establishing the Brotherhood. Beedie arrived in South Plainfield on February 12, 1937. He testified that he met Diana opposite the 17 The Independent had first demanded a 10-per cent basic wage rate increase. This would have amounted approximately to an average increase of 2% cents an hour. When the respondents seemed disposed to accede , the Independent increased its demand to a flat increase of 5 cents an hour. A compromise was reached at 3 cents an hour. CONDENSER CORPORATION OF AMERICA 373 plant and that Diana informed him that the Independent was not faring well and that its members desired to "affiliate" with the Brotherhood. Charlotte Van Nest testified that both Diana and Beedie appeared before the Independent executive committee in the plant conference room and that she had on the day of that meeting obtained from Beyer permission to use the room. We credit the testimony of Van Nest on this point. It is necessary here to observe that the testimony of Diana, Cvetko, Van Nest, and Beedie, with respect to the relations between the Independent and the Brother- hood is a maze of contradictions and inconsistencies. It is evident that the complete story was withheld and that much was fabricated. Diana testified that he discontinued acting on behalf of the Inde- pendent and turned over all organizing to Beedie after his arrival in South Plainfield on February 12, 1937. After this date,- Diana maintained that the Independent executive committee, and with it the entire Independent organization, informally disappeared : "Just dissolved, didn't see no more of it." On the other hand, Diana testi- fied concerning the events of February 15, 1937, particularly with reference to the Brotherhood mass meeting in the Grant School of the afternoon of that day, as follows: Q.... Did you tell this Committee of Twenty-three [the Independent executive committee] ... there was going to be a meeting in the school [Grant School, South Plainfield] at 4: 30 that afternoon? A. Yes. I told them there would be arrangements made as they instructed and the meeting would be held at night. Q. You made the arrangements yourself, didn't you? A. They asked me to make it -to make the arrangements . . . Q. Now did you tell this Committee of Twenty-three to notify their fellow workers about the meeting to be held in the school room that night? A. Yes. Q. Do you remember whether they did so or not? A. Well, they must have. In his brief, counsel for the respondent Condenser admitted that members of the Independent executive committee assisted the organi- zational drive of the Brotherhood, which commenced on February 15, 1937, but argued that they engaged in such activities as individ- uals and not as representatives of the Independent."' In contrast to the position of the counsel for respondent Condenser on this point, the record contains the testimony of Cvetko, chairman of the Inde- pendent executive committee, and we find the facts on the basis of is See brief in behalf of the respondent Condenser, page 2. 283033-41-vol. 22-25 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this ,evidence. Cvetko testified that the Independent executive com- mittee requested Diana to bring a representative of the Brotherhood to South, Plainfield; that he passed word around of the Brotherhood meeting of February 15, 1937; that the rest of the executive com- mittee "may have" done the same; and that at the meeting in the Grant School that night application cards of the Brotherhood were distributed, by the members of the Independent executive committee, as well as by others.19 Cvetko continued to distribute Brotherhood cards in the plant next morning before his work began. With ref- erence to the same day, February 16, 1937, he testified : ... the day after the meeting, well, we started to get the cards together,;. •.. _ ,Q.' You say "we," who do you mean? A. The committee itself., Q. How did' you get them together? A. Well, they, all met 'at twelve o'clock, ... we got together and we got all the cards and found out how many we had and we brought them to Frank.20 Q. Well, you received all the cards that were signed, isn't that right ? A. That's right. Q. Those were the cards signed that morning, is that right? A. That morning and the night before at the meeting. Mr. Maslow : Now, when you saw the cards Monday night, they weren't turned in until the next day? The Witness : Some were turned in that night , those were defi- nitely sure signed it. Q. (By Mr. Maslow ) Some the next morning? A. Yes. Q. Each member of the committee went around ... A. Each member of the committee went around and collected the cards from the people. Between February 16 and February 18, 1937 , the Independent, through action of its executive committee , transferred its organization to the Brotherhood . The following testimony by Cvetko indicates 19 Q. And your committee passed around the cards? A. Well, at the meeting, yes, they passed them on around . also the people themselves, I mean even the people that weren't on the committee grabbed a handful of cards. Q Your committee helped to pass these cards around , is that right? ' A Yes. •. ° Frank Diana CONDENSER CORPORATION OF AMERICA 375 that the Independent executive committee determined officially to take this step, and by the same token that the leaders of the Independent, in aiding the Brotherhood, were not acting merely as individuals : Q. . . . Did your committee take a formal vote on the ques- tion of whether they should affiliate with an outside organization, was there an actual vote taken? A. Well, it was unanimous. Q. Was there a vote taken? A. We didn't need a vote, everybody spoke. Moreover, we find that at least four of the leaders of the Independ- ent become leaders of the Brotherhood as soon as the transfer, affil- iation, or merger was effected. Diana, who had been originator, guiding spirit, and an honorary member of the executive committee of the Independent, was elected business agent of the Brotherhood and continued to take, in the absence of Beedie, the leading role in its affairs. Cvetko, who had been chairman of the Independent ex- ecutive committee, became treasurer of the Brotherhood. Joseph Fitzgerald, who had been a member of the Independent executive committee, became president of the Brotherhood. Van Nest, who had been a member of the Independent executive committee, became a member of the executive board of the Brotherhood. 2. The attitude of the respondents toward the Brotherhood The respondents took measures to reenforce the impression that they desired the Brotherhood's organizing campaign to be successful and thereby to assure this outcome. Beedie arrived in South Plainfield on February 12, 1937. Active organization in behalf of the Brotherhood extended from Monday to Friday, February 15 to 19, 1937, and by the latter date, the Brotherhood had obtained upon its cards 21 the signatures of a ma- jority of the employees at the South Plainfield plant. On February 15, 1937, a mass meeting was conducted at the Grant School, a public school situated close to the respondents' plant. Upon the basis of the testimony given by Diana during the resumed hear- ing in this proceeding, we find that the February 15, 1937, mass meeting commenced no later than 5 p. m. From the testimony of other witnesses, it_appears that the_ meeting commenced at approxi- mately 4:30 p. m. Upon the basis of a tabulation of approximately 5,000 daily time slips for the week of February 15, 1937, it appears that a large majority of the employees in the plant were dismissed by the respondents prior to 4: 15 p. m. on February 15, 1937. The tabulation for the 4 remaining days of the- same week, during which = Similar to Board Exhibit No. 17. 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ,time the Brotherhood conducted no afternoon mass meeting, discloses that a majority of the employees were regularly dismissed subsequent oto 5:15 p. m. The results of the tabulation 22 point so clearly to the conclusion that the respondents, by dismissing the employees un- usually early on February 15, 1937, were acting in pursuance of a conspiracy to assist the Brotherhood in its first mass meeting, that we must disregard the attempts of the respondents to assign as the reason that operations were curtailed on that day for business reasons. Hundreds of employees, finding themselves at liberty in advance of their usual quitting time, and knowing of a much publicized mass meeting of the newly arrived Brotherhood to be held at a nearby schoolhouse at a time also in advance of their usual quitting time, `could have arrived at no other conclusion but that the respondents were in sympathy with the Brotherhood and intended that their em- ployees attend the meeting. ' Moreover, the respondents did not leave the matter to the em ployees' inference alone. We find that additional and open assistance -was rendered the Brotherhood in support of the February 15, 1937, mass meeting. Katherine Fedoruk'23 production employee in department 9, testified that Gertrude Frankl,23a her supervisor and forelady in that department, made the following statement on Feb- ruary 15, 1937; to a group of 100 employees in her department : "Girls, I am dismissing you to go to a union meeting at the Grant School." Ann Mae Therney and Mary Lane, both production em- ployees in department 7, testified that Catherine Heslin, forelady in charge of that department, announced the Brotherhood meeting at the Grant School on February 15, 1937, and invited the employees to attend. Therney testified that "Heslin told a group of about 75 employees that there would be a meeting in the Grant School, to go if we wanted to." Therney, Fedoruk, and Lane left work at approx- imately 3: 50 p. m. on February 15, 1937. Therney testified that on that date the whole personnel of department 7 left work with n Following tabulation represents a close approximation of information gathered from approximately 5,000 daily time slips comprising Board Exhibit No. 68: Number of Proportion of ' Proportion of employees dis- Date employees employees dis- missed between on the day missed prior to 15 and 5 45 5 shift to 4 15 p. m. . p. M. Percent Percent February 15, 1937----------------------------------- 983 80 8.5 February 16, 1937______________ ____________________ 1,012 15 5 58 February 17, 1937---------------- ------------------ 1,081 14 8 60 7 February 18, 1937___________________________________ 880 11 61 5 February 19,1937__________________________ ________ 971 12.5 60.5 23 In the complaint this name is erroneously spelled Katherin Feodorik. =8 Referred to in the transcript as Gertie Frankel CONDENSER CORPORATION OF AMERICA 377 her, and Lane testified that she attended the meeting and saw all the other girls in department 7 on their way to it. This testimony is denied by Catherine Heslin in her testimony and by Gertrude Frankl in her deposition taken, on November 30, 1937 . Pursuant to requests made in briefs filed and at the hearings held for the purpose of oral argument on February 15, 1940 , we have considered again the testimony given by these five witnesses at the resumed hearing. The testimony of Fedoruk, Therney, and Lane appears to be honest and worthy of credence. In weighing the conflicting testimony of Heslin, we take into account that we find her testimony to be unreliable in other connections as set forth below in Section III G 1, under the discussion to be found concerning the discharges of Mary Lane, Margaret Gibbs, and Ann Mae Therney. We find that the testimony of Fedoruk , Therney, and Lane, above, accurately portrays the events which occurred. Heslin was the forelady of an entire department. Clara S. Leary, personnel director for the respondent Condenser with authority to hire and discharge employees, testified, and we find, that it was her practice to consult with foremen or executives before making dis- charges, and that foremen made requests of her when they desired that employees be discharged . We also find, on the basis of Leary's testimony, that foremen selected on their own authority, which employees were to be laid off. Bleich , production superintendent of the respondent Condenser , testified that whenever a person applied for reemployment with the respondent Condenser , the persons who had had anything to do with the previous discharge would be con- sulted. It is clear that foremen, foreladies, and lesser supervisors regularly recommended discharge and reemployment in the course of their duties, and it is also clear that foremen and foreladies had authority to select which employees were to be laid off and which were to be reinstated after having been laid off. We find that further direct assistance was afforded by the respond- ents to the Brotherhood before February 19, 1937 , by means of the personal efforts, on plant premises, of a supervisory employee of the respondent Condenser and those of the secretary to another super- visor. We credit the testimony of Ann Mae Therney, a production employee and a member of the executive committee of the United, who disclosed that she signed a Brotherhood card 24 on February 16, 17, or 18, 1937 , when ordered to do so while at work by her supervisor, Sarah Martin. Sarah Martin was the supervisor of the presses in department 7. Therney observed Sarah Martin approach at least five other girls at work one of whom was stationed beside the witness. The testimony of Paul Desjardins, an operative of the Connors u Similar to Board Exhibit No. 17. 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD detective agency employed at the respondents' plant, disclosed that the Brotherhood card which he signed was given to him in the plant, prior to, February 19, 1937, by Lena Sinisgali. Desjardins identified Sinisgali as. a .non-supervisory employee who worked as the "clerk" of Manny Sanchez, foreman in charge of department 11, the depart- ment in which Desjardins worked. We do not accept that part o-O Desjardins' testimony in which he stated that Sinisgali's organizing activities in the plant were not conducted during working hours since he seemed uncertain and evasive in his answers. On February 18, 1937, Lena Sinisgali became the recording secretary of the Brother- hood. The fact, known to Desjardins and presumably to the employ- ees generally, that Sinisgali was a "clerk" or secretary of a depart- ment head 25 must have been taken by the employees to mean that she was acting under the foremen's directions and, by the same token, that she was soliciting with the approval of the respondents. Sanchez must have known of these activities of his secretary carried on within his department in the plant, but there is no evidence that he sought to prevent them. In addition to the acts of assistance rendered to it, the respondents further encouraged the Brotherhood in its membership drive by dis- playing hostility to the United prior to February 19, 1937. The vigorous attacks upon the United published in "The C-D Condenser" of February 11, 1937, and set forth above, were having their effect in weakening the United as an effective rival of the Brotherhood during the campaign of February 15 to 19, 1937. There is no evi- dence of any activity on the part of any supervisor in the South Plainfield plant in behalf of the United at any time. The respondents rendered further aid and assistance to the Brother- hood prior to February 19, 1937, by virtue of the discriminatory manner in which the bargaining negotiations were conducted. a. The bargaining negotiations with the United In his letter of January 19, 1937, to Blake, Carey asserted that the United represented a majority, demanded recognition and re- quested a conference for the purpose of bargaining. Blake met with Carey at the plant on January 25, 1937. At that meeting, Blake admitted knowing that the United had "done very well here at my plant." Moreover, Blake did not question a claim made at that conference by Carey that the United represented a majority. We further find, on the basis of Blake's own testimony regarding that conference, that Carey indicated that his immediate desire was merely for recognition and that demands for wage increases would 25 Desjardins testified : " She seemed to be the clerk of Manny Sanchez." CONDENSER CORPORATION OF AMERICA 379 not outstrip organization in the rest of the industry on a comparable basis. Blake requested time until January 27, 1937, to consult with certain members of the board of directors, and Carey agreed. Mutual oral promises were made to maintain the status quo until further negotiations; specifically, there were to be no strikes, lock- outs, or discharges, and former discharges which the United claimed were discriminatory were to be taken up and adjusted. Blake neglected to fulfill his promise to communicate with Carey or with any other representative of the United on, January 27, 1937. The records of the New York Telephone Company reveal that on Jan- uary 29, 1937, a call was made from Carey's office to Blake's office. Blake was not reached, but a message was left requesting him to call Carey. Neither Blake nor any other representative of the re- spondents communicated or attempted to communicate with Carey at any time between February 2, 1937, and February 23, 1937. An additional attempt to communicate was made by Carey in the form of a registered special delivery letter mailed to Blake on February 18, 1937. The letter again stated that the United represented a majority and asked that its representatives might meet with rep- resentatives of the management of the respondent Condenser. Al- though this letter arrived at the plant on February 19, 1937, the day on which the agreement with the Brotherhood was executed, Blake testified that he was not in the plant on that date and that he received it on February 20, 1937. On February 23, 1937, a reply to Carey's letter was sent by Arnold indicating that on February 19, 1937, a contract had been executed with the Brotherhood and that there was, therefore, no occasion for further dealings with the United. We find that no representative of either respondent in- formed any representative of the United prior to the letter of Feb- ruary 23, 1937, that Blake was an officer of the respondent Cornell and not of the respondent Condenser. b. The bargaining negotiations with the Brotherhood In contrast to the dilatory and hostile attitude evinced toward the United, the Brotherhood experienced no evasiveness. Although the Brotherhood had begun organizing only on February 15, 1937, con- ferences between its representatives and those of the respondents were held from February 16 to 19, 1937. Representatives of the re- spondents counted and checked the Brotherhood application cards during each conference. On each occasion prior to February 19, 1937, it was observed that the Brotherhood had not yet obtained a majority. Nevertheless, negotiations with regard to the substantive terms of a contract between the respondents and Brotherhood were in progress 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from the time of the first conference. Arnold and Blake, presi- dents of each of the respondents, engaged seriously in discussions concerning a closed-shop clause and a check-off clause for the Brotherhood. At a conference on February 17 or 18, when the mem- bership of the Brotherhood admittedly still numbered a minority of employees in the unit claimed appropriate by the Brotherhood, a complete agreement including the closed-shop and check-off clauses, was in fact drafted and discussed. The news of the proposed agree- ment was announced to an assemblage of the employees at a mass meeting of the Brotherhood on the evening of February 18, 1937, and a copy of the afore-mentioned draft was on exhibition. At the same mass meeting, the charter of the Brotherhood was installed and its officers elected. On February 19, 1937, after it had been determined that the Brotherhood had secured the membership of a majority, the contract was executed by the respondent Condenser and the Brotherhood in substantially the same form as had previously been submitted when the Brotherhood's membership still comprised a minority. Arnold himself testified that nothing of consequence was changed. The agreement purports to be effective for 2 years from the date of its execution and contains a renewal clause dis- cussed bellow in Section V. It contains provisions not only for a closed shop but also for a check-off of dues for the Brotherhood from the wages of all individual employees coming within the collective- bargaining unit defined therein. The check-off is made uncondi- tional; no exception is expressed for employees not members of the Brotherhood either during the 2-week period of grace allowed by the contract before they are required to become members, or after that period. It is common knowledge that labor organizations which have had contractual relations with employers for long periods have frequently been unable to obtain the privilege of a check-off. The system of check-off has been traditionally one of the last con- cessions which employers have been willing to make in their dealings with labor organizations. Yet, the check-off was granted by the re- spondent to the Brotherhood without any hesitation. The apparent willingness to make this concession, at a time when the Brother- hood's eventual ostensible majority was still prospective, is a par- ticularly strong indication of the respondents' desire to support the Brotherhood, in view of the manner in which the respondents were avoiding negotiations with the United during the negotiations for the Brotherhood's agreement. Employees were made aware of these proposed contractual provisions at the Brotherhood's mass meeting of February 18, 1937. The attitude of the respondents in their negotiations with the Brotherhood made it appear a foregone conclusion from the start CONDENSER CORPORATION OF AMERICA 381 that some agreement would be reached and a contract executed as soon as the Brotherhood should obtain a majority. "Arnold testi- fied that the negotiations with-respect to the substantive terms of the agreement were carried on in advance of the majority because it appeared inevitable that the Brotherhood would represent a ma- jority before long. It is not surprising that the majority appeared inevitable in view of the respondents' dual activities on behalf of the Brotherhood. On the one hand, they were responsible, as we have already indicated,, for various practices by which employees were coerced to join the Brotherhood and discouraged from join- ing the United. On the other, we find that in their dealings with the United and with the Brotherhood, they .revealed a strong dis- position to favor the Brotherhood. By this discrimination, the respondents caused membership in the Brotherhood to appear to employees essential to their job security even prior to the time when its members comprised a majority. We take into consideration, moreover, that the marked preference in bargaining relations was shown the Brotherhood by the respond- ents from February 16 to February 18, 1937, a period when (1) both the United and the Brotherhood were claiming to represent a majority; (2) the respondents knew from their own tabulations that the Brotherhood represented only a minority of their employees; and (3) the United did in fact represent a substantial minority. Blake was aware as early as January 25, 1937, that the United represented a substantial number of the employees in the South Plainfield plant. Although the contract of February 19, 1937, purports to be made with the Brotherhood as representative only of its members; e the request of the United dated February 18, 1937, for a meeting with the management of the respondent Condenser for the purpose of bargain- ing collectively was answered by Arnold in his letter of February 23, 1937, as follows : For your information, I desire to advise you that on February 19, 1937 I executed, on behalf of this corporation 2T an agreement with Local # B 1041, Electrical Condenser Workers Union, International Brotherhood of Electrical Workers, affiliated with the American Federation of Labor. '()The contract provides : Agreement entered into this 19th day of February. 1937. between the Electrical Condenser Worker Union Local # B 1041 , the International Brotherhood of Electri- cal Workers , American Federation of Labor, hereinafter designated as the Union, for and in behalf of the said Union, and for and in behalf of its members thereof (sic) now employed or hereinafter employed by the Employer and collectively designated as the Employees. First : The Union hereby agrees that its members employed by the Employer will work for the Employer upon the terms and conditions set forth in this agreement. 117 The respondent Condenser. 382 DECISIONS OF, NATIONAL LABOR, RELATIONS,-)BOARD In view of the fact that we have entered into this agreement, I do not suppose that there will be any occasion for holding the meeting which you suggested in your letter. Moreover the contract of February 19, 1937, although it fails to -provide formally for the exclusive recognition of the Brotherhood, provides in its second paragraph that "all workers in the production departments will become members" of the Brotherhood. To condi- tion employment upon membership in a labor organization is un- lawful under the Act if the labor organization benefited by such a closed-shop agreement is not the exclusive representative of the em- ployees in the appropriate collective bargaining unit covered by such agreement when made.28 Finally, it is noteworthy that the 5 days of active organization and bargaining conducted by the Brotherhood covered February 15 to February 19, 1937, a period coextensive with the first 5 days of the former hearing in this matter. E. Conclusions as to the respondents' relations with the Brotherhood prior to the execution o l the February 19, 1937, contract We conclude that respondents have pursued an unlawful course of conduct calculated to foster and dominate the Independent and then to establish, maintain, and assist the Brotherhood by interference, restraint, and coercion. On the other hand, the respondents, by the coercive and discriminatory measures described above, discouraged and weakened the United, a labor organization which they opposed from its inception. We find that the respondents, and each of them, by this conduct have interfered with, restrained, and coerced their employees in the exercise of rights guaranteed in Section 7 of the Act. By their own deliberate conduct, the respondents, and each of them, assisted the Brotherhood in obtaining its majority in the plant, and imposed the Brotherhood upon their employees as bargaining repre- sentative,' exclusive in fact if not in form. In view of the acts of interference, restraint, and coercion on the part of the respondent s, we find that the Brotherhood" was not on February 19, 1937, freely designated by a majority of the respondents' employees in the collec- tive bargaining unit covered by the agreement of February 19, 1937, whether that unit was appropriate or not. We find that the granting of the closed-shop contract to the Brotherhood was a part of the respondents' unlawful course of conduct and that it was calculated to consummate and perpetuate their unlawful plan to deal with the Brotherhood alone to the exclusion of the United and thus to continue 23 See Section G 2, below. CONDENSER CORPORATION OF AMERICA 383 to interfere with, restrain, and coerce their employees in the exercise of the rights guaranteed to them under Section 7 of the Act. The proviso in Section 8 (3) of the Act provides that: ... nothing in this Act . . . shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in this Act as an unfair labor practice) to require ' as a condition of employment membership therein, if such labor organization is the representa- tive of the employees as provided in section 9 (a), in the appro- priate collective bargaining unit covered by such agreement when made. Since the contract of February 19, 1937, was entered into with a labor organization which had been established, maintained, and assisted by the respondents' unfair labor practices and which was not a repre- sentative of employees freely designated by a majority thereof, it is not within the proviso of Section 8 (3) of the Act and is, there- fore, as a part of an unlawful course of conduct which we have found to constitute interference, restraint, and coercion, clearly invalid and unlawful under Section 8 (1) of the Act 29 F. The assistance rendered the Brotherhood subsequent to the execution of the February 19, 1937, contract 1. Assistance rendered the Brotherhood pursuant to the terms of the February 19, 1937, contract After February 19, 1937, and pursuant to the unlawful contract executed on that date, the respondents further assisted the Brother- hood in various ways, thereby continuing to interfere with, restrain, and coerce their employees in the exercise of the rights guaranteed to them under Section 7 of the Act. In the latter part of February 1937, a notice signed by Beedie was posted in the plant stating that a contract had been obtained from the respondent Condenser by the Brotherhood and that: On or before March 1st, 1937, all employees engaged in produc- tion work must, if they have not already done so, fill out enroll- ment cards with the Local B-1041 Electrical Condenser Workers' 29 Matter of' National Electric Products Corporation and United Electrical and Radio Workers of America, Local No 609, 3 N. L. R B. 475 ; Matter of Lenox Shoe Company, Inc. and United Shoe Workers of America, affiliated with the Committee for Industrial Organi- zation, 4 N. L R 13. 372 ; Matter of Missouri-Arkansas Coach Lines , Inc and The Brother- hood of Railroad Trainmen, 7 N. L R. B. 186; Matter of Mt Vernon Car Manufacturing Company, a corporation, and Local No. 1756, Amalgamated Association of Iron, Steel & Tin Workers of North America, affiliated with the Committee for Industrial Oigasnzatlon, 11 N. L R. B. 500. 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union of the International Brotherhood of the Electrical Workers. After March 1st, 1937, an initiation fee of $2.00 for all new members will be required, and none but union members can be employed in the plants of Condenser Corporation of America. A foreman named Mario threatened John Sedon, a production employee, with the loss of his job if he did not join the Brotherhood. During March and April 1937, the respondents discharged 14 em- ployees named in the third amended complaint.3° These employees were discharged under the closed-shop provision of the February 19, 1937, contract for the reason that they were suspended from member- ship in the Brotherhood. We will discuss these discharges more fully below in Section III, G, 2, in connection with Section 8 (3) of the Act. We find that these discharges, giving effect as they do to condi- tions upon employment imposed by the invalid contract, constitute further interference, restraint, and coercion of employees in the exer- cise of the rights guaranteed in Section 7 of the Act. The contract signed by the Brotherhood and the respondent Con- denser on February 19, 1937, in addition to the closed-shop provision referred to above, contained the following paragraph providing for a check-off of dues for the Brotherhood : TWENTIETH. The Employers agree to forward to the. Union on or before the fifteenth of each month a check covering One ($1.00) Dollar, monthly dues to be deducted from pay of employees coming under the terms of this Agreement. The Employer shall deduct these dues in weekly installments from the pay of the Employees. The employees covered by the Brotherhood's contract of February 19, 1937, are described in that document as follows : NINETEENTH. This agreement shall apply to workers in pro- duction departments and shall not apply to engineering, labora- tory, shipping, receiving departments, watchmen, maintenance, office, foremen, supervisors, and clerical. On March 15, 1937, the respondent Condenser commenced to remit dues deducted from the wages of employees covered to the Brother- hood pursuant to the contract of February 19, 1937. Since we have found that the execution of the contract itself was calculated to con- summate and perpetuate the respondents' illegal plan to interfere with, restrain, and coerce their employees in the exercise of the rights guaranteed to them under Section 7 of the Act, we find that by giving 80 John Sedon, Michael Santore, Fred Vitto, Katherine Dolce, Mary Schumacher, Arthur Chippendale, John Di Vico, Ann Jacobs, Caroline Callecchio, Tessie Appezzatio, Michael Sabino, Herbert Rydberg, Katherine Fedoruk, and Frances Prohodka. CONDENSER CORPORATION OF AMERICA 385, effect to the check-off provisions of that contract the respondents con- tinued to render the Brotherhood unlawful assistance by acts which interfered with, restrained, and coerced their employees in the exer- cise of the rights guaranteed to them in Section 7 of the Act. We find that by the various means described above the respondents have interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed to them in Section 7 of the Act. 2. Assistance rendered to the Brotherhood apart from giving effect to the February 19, 1937, contract Subsequent to the execution of the contract on February 19, 1937, the respondents continued to render direct assistance to the Brother- hood as well as indirect assistance by impeding and hindering the progress of the United as an effective rival. . We have already indicated that upon receiving a request for bar- gaining negotiations made by the United in a letter dated February 18, 1937, Arnold replied on February 23, 1937, declining to partici- pate in such negotiation on the ground that the February 19, 1937, agreement with the Brotherhood removed the occasion for bargaining with, the United. It is apparent, on the basis of Arnold's letter, that the Brotherhood was treated as the exclusive bargaining representa- tive after February 19, 1937, of the class of employees covered by the aforesaid agreement despite. the provisions therein set forth above limiting its application to members of the Brotherhood. Since, how- ever, its membership had been obtained with assistance.of the re- spondents which we have found to be unlawful under the Act, it is clear that the Brotherhood was not entitled to be treated as the exclusive bargaining representative of the respondents' employees. Brotherhood membership cards were distributed in the plant after February 19, 1937, by supervisory and non-supervisory employees. In March. 1937, Brotherhood. cards were distributed to employees by Virginia Connors, the supervisor of the inspection tables in department .7. - During March 1937, Catherine Heslin, head forelady in charge of department 7, threatened Mary Lane, a production employee in that department with discharge for membership in the United. On March 30, 1937, Mary Lane ,was discriminatorily discharged by Heslin for attending the mass meeting of March 29, 1937, conducted by the United, and for other assistance rendered. that labor organization. The circumstances surrounding the discharge are discussed more fully, below in Section III, H, 1. .. Also during March 1937, Ann Mae Therney,_ employed as a mica cutter in department' 7, was.approached while at work by Sarah Martin, her supervisor. , Martin inquired whether she had attended 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD one of the mass meetings conducted by the United. Therney replied that it was none of her business . Martin then said, If you don't stop attending those meetings, you'll be fired." Therney continued to attend the meetings of the United, and she was discharged for this and other assistance rendered the United . The circumstances surrounding this discharge, as well as those of Frank La Vecchia and Margaret Gibbs, are discussed fully below in Section III, H, 1. We have found that the February 19, 1937, contract was invalid and that the Brotherhood was not the exclusive representative of employees of the respondents subsequent to that date . It is unneces- sary to decide, therefore, whether the assistance here discussed would have been permissible if the Brotherhood had obtained majority status without the assistance of the respondents and had then become the beneficiary of a closed -shop contract . We think not, however, for the Act guarantees to employees the freedom to choose repre- sentatives, and this freedom involves the liberty to change representa- tives. Clearly, an employer may not lawfully recruit membership among his employees for any labor organization , save indirectly through a closed-shop contract which falls within the proviso of Section 8 (3) of the Act. We find that by permitting supervisory employees to recruit them- bers for the Brotherhood as described above and by discharging Mary Lane, Ann Mae Therney, Frank La Vecchia, and Margaret Gibbs for joining and assisting the United, the respondents, and each of them ; have interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed to them in Section 7 of the Act. G. The discharges 1. The discharges unconnected with the contract of February 19, 1937 During the initial period of operations in South ' Plainfield in August 1936, no labor organization attempted to organize the em- ployees of the respondents. When in December 1936 , the right to self-organization and to engage in concerted activities was first exer- cised, six of the employees involved were discharged for such activi- ties within the space of a few days. It is alleged in the third amended complaint that these discharges were discriminatory and in violation of the Act. • Edward Hughes. Edward Hughes was discharged on December 16, 1936. He had been employed as head checker shortly after the commencement of the South Plainfield operations. The other check- ers were employed subsequently and were supervised by Hughes. During several weeks prior 'to his'discharge, Hughes engaged in conversations relative to pay scales with Reynolds, his immediate CONDENSER CORPORATION OF AMERICA 387 superior, who was in charge of the purchase and sales department of the respondent Condenser. Hughes maintained that the checkers could not be held for competent work if their rate of pay was not increased. Approximately 2 weeks prior to his discharge, Hughes submitted his proposals in the form of 'a pay scale. In connection with his particular interest in the problem of the checkers, Hughes also reported to Reynolds that there was general, unrest among the employees, and he discussed labor organizations with Reynolds several times during the 3 weeks prior to his discharge. The checkers who had been under Hughes' supervision met with Hughes shortly after his discharge, and they invited the United early in January 1937 to establish a local in' South Plainfield. Hughes participated in these activities of the checkers, joined the United, and on January 18, 1937, he was elected president of the local. On -December 16, 1936, the day of his discharge, Hughes was sum- moned from his work by Reynolds. Reynolds and Beyer 31 together informed Hughes of his discharge. At the' time, Reynolds asserted that the reasons for the discharge were irregularities in the checking department. Hughes requested to know the nature of the irregular- ities. Reynolds cited Hughes' failure to punch his own time card.- ' It is true that after his first week Hughes neglected to punch his time card. He explained that 'since he was in charge of recording time for the entire production staff, he felt that he could omit to punch his own card, particularly since his duties required, and in effect proved, his presence at work through the day. Hughes was a supervisory employee paid on an hourly basis. No position in the plant was parallel to Hughes' position, although some other super- visors were also paid on an hourly basis. While other supervisory employees on salary did not punch time cards, there seems to be no custom in the plant exempting hourly paid supervisors similar to Hughes from this duty. Nevertheless, it is not contended that Hughes 'profited or sought to profit from the absence of mechanical records of the time spent by him at work. Prior to the announcement of his discharge, it had never been brought to Hughes' attention that he was neglecting to punch a card, and he, had not been warned that he would be discharged for omitting to do so. Moreover, the employment records of respondent Condenser do not record an irregularity as the cause for discharge. It was stipulated that an employment record of the respondent Condenser lists the reason for Hughes' discharge as "inaccurate records." ,Almost all of the production employees in the plant were paid on an•incentive or bonus plan in addition to a minimum hourly wage. 81 Haim Beyer was the secretary and treasurer of the respondent Cornell ; his chief duty was to act as inspector , for the respondent Cornell, of the respondent Condenser's production. 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A' piece-work standard of production was set up by time-study methods. Employees were paid varying bonus or incentive rates for production exceeding the standard. It was the 'duty of the checkers to record for each employee both his working time and the quantity of his production. Complaints of errors were regularly received in the pay-roll department from employees. Hughes testi- fied that numerous complaints arose from the complexity of the method of wage computation and the consequent failure on the part of many employees to understand it. That the respondent Con- denser recognized this to be so is indicated by the change to a similar but simplified system in February 1937. Instructions to em- ployees on the use of this simplified method occupied more than three columns in The C-D Condenser of February 11, 1937. Investigation of the complaints indicated that some had merit and that errors, called "shortages," were attributable to the checking department. In such cases the employees received the additional compensation to which they were entitled. There is no evidence and apparently no contention that the checkers ever erred on the side of over-compen- sating employees. There was no criticism or warning from the man- agement to Hughes. Because of the difficulty of measuring the varied and multifarious output on many of the operations, there seems little reason to believe that the management was dissatisfied with the services of Hughes or of his staff on this score. The discharge of Hughes occurred at a time when he was seeking an increase in the wages of the men he supervised. He had re- ported to his superior that the employees generally were dissatisfied with conditions, and he had forecast the possibility of the appear- ance of a labor organization. Hughes' discharge appears to have been an attempt by the respondent to prevent the inception of organized and concerted activities on the part of its employees. The failure of some of the employees to heed the warning of Hughes' discharge led the respondent Condenser to fight at every turn their subse- quent exercise of the right to organize. We cannot give credence to the contentions of the respondent Condenser as to the reason for the discharge of Hughes. The sole reason offered Hughes at the time of his dismissal was his failure to punch his time card. Except for his first week, Hughes had not punched the card, and had re- ceived no warning, for a period of approximately 3 months. Since there was no claim that Hughes thereby obtained any undeserved compensation, it would appear that a warning or other less drastic mode of discipline would have sufficed if the respondent Condenser had been interested merely in correcting the irregularity. Further doubt is cast upon the respondent Condenser's contention that this- irregularity 'was the reason for the discharge by the presence of a different reason for discharge on the employment record, viz, in- CONDENSER CORPORATION OF AMERICA 389 accuracies in the records. We do not believe that these inaccuracies in the records were the reason for Hughes' discharge. Hughes was not confronted with this alleged reason at the time of his discharge, and he had never been previously criticized, disciplined, or warned in any way. We are left with only one reason for the discharge of Hughes. By eliminating him and several others next to be dis- cussed, the respondent Condenser inaugurated its campaign against free and unhampered concerted activity, and its attitude soon de- veloped into the struggle against the United which has been described above. We therefore find that Edward Hughes was discharged by the re- spondents because of his action in attempting to obtain increased wages for the checkers. By discharging Hughes because he participated in concerted activity for the purpose of collective bargaining, the respondent Con- denser has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act.32 In addition, a discharge for that reason discourages concerted activity for the purpose of collective bargaining, and has the effect of dis- couraging the formation of and membership in a labor organiza- tion, which is the customary instrument utilized by employees to achieve collective bargaining.33 When the checkers under Hughes' supervision learned of his dis- charge, they arranged the protest meeting, to which we have re- ferred, at the home of Herbert Peterson, one of their number. On December 17, 1936, this meeting took place. Among the checkers present was Mitchell Zieborak, an industrial detective supplied by S. H. Connors, Inc., as referred to above. Plans were made at the meeting to approach the management and to contact the Committee for Industrial Organization for the purpose of forming a permanent labor organization with outside affiliation. Within the next few days, according to the testimony of Zieborak, all the checkers were discharged except himself and another.34 It is alleged in the third amended complaint that on various dates in December 1936 the re- spondents discriminatorily discharged the following checkers : Lawrence Dowling, Joseph Russo, John Spisso, Joseph De Sepio, and Herbert Peterson. It is also alleged that Arnold Dowling, who was not a checker, was discharged for union activities during this month. We will now discuss these discharges separately. 32 utter of Indianapolis Glove Company and Amalgamated Clothing Workers of Amer- sca, Local No 145, 5 N. L. R. B. 231. 33 Matter of Stehli and Co, Inc and Textile Workers Union of Lancaster, Pennsylvania and Vicinity. Local #133, 11 N. L. It. B. 1397 34 Theodore D'Addario, who was one of the checkers at that time, is alleged to have been disciimmatorily discharged on or about January 8 , 1937. His case is discussed below. 283033-41-vol. 22-26 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lawyenee Dowling. Since approximately the middle of October 1936, the date of his employment, Lawrence Dowling had been as- signed as head checker of department 9 where he recorded the time and output of production employees. Lawrence Dowling was dis- charged on December 18, 1936, the day following his attendance at the checkers' first meeting. At that meeting, in the presence of Zieborak, Dowling had been appointed a member of a committee of four to contact an outside labor organization. At about 6: 15 p. m. on the date of his discharge, Harry Chait, the new head checker hired to replace Hughes, requested Dowling to report to him as soon as he had finished work. Chait had been head checker for 2 days previous to this time. What happened be- tween Dowling and Chait is to be found in the testimony of Dowling. Although it was stipulated that if called by the respondents, Chait would deny the statements attributed to him by Dowling, we are convinced by the straightforward and competent appearance of Dowling's entire testimony that his account is trustworthy. Dowling testified that Chait said: I am sorry to do this, but we no longer need your services, .. . Dowling then inquired of him the reason : I says, "Is there anything wrong with my work?" and he says, "No, there is nothing wrong with your work, in fact, I don't even know why they are doing this. I just got orders to do it." So he handed me my check and Mrs. Leary 35 called me over to her desk and told me to give her my button. Thornton, the general caretaker in the plant, came into the personnel office, put his arm around Dowling and told him to come along without making any fuss. Then Thornton and Munn 36 walked with Dowling to the door. With respect to the reasons of the respondent Condenser for dis- charging Lawrence Dowling, it was stipulated by counsel for the respondents and for the Board that "the employment record shows that . . . the reason was unsatisfactory work, and it is marked `No re-hire'." Leary testified that her own confidential records of the reasons for discharges made at the time of the various discharges, revealed nothing about Dowling except that "shortages" were reported to her by operators. Walter Deutsch, assistant foreman of depart- ment 9, testified that quite a few complaints had been lodged with him against Dowling by employees, some as early as the month in which Dowling was first employed. Deutsch testified that upon in- " Clara S Leary was the personnel manager of the respondent Condenser as Ed Munn was head supervisor of several departments in the plant CONDENSER CORPORATION OF AMERICA 391 vestigation he found quite a number of "shortages," and that Hughes verified these by independent inspection. Dowling readily admitted that many complaints were made to supervisors by employees con- cerning his work. There are many indications, however, which negate the contention that this was the reason for the discharge. No attempt was made to bring out whether the complaints concerning Dowling were relatively few or numerous compared, for example, with complaints concerning Zieborak, a checker who was not dis- charged ; 37 there is no evidence of a reprimand from his superiors at any time; neither Reynolds, Chait, nor Leary mentioned the "shortages" to Dowling at the time of his discharge; and no one informed Dowling of this, or any other, alleged reason for his dis- charge. On the contrary, Chait informed Dowling at the time of the discharge that he did not know the reason. At the hearing, several questions were put to Dowling by counsel for the respondent Condenser concerning his failure on one occasion to punch the time card on his way in, and on another occasion on his way out, and the absence of any record for lunch periods. The irregularities were never called to Dowling's attention at any time, and they were not recorded upon the records or advanced by any witnesses as a reason for the discharge. We do not consider these the true reason for the discharge. Under the circumstances, we are satisfied, and find, that Dowling was discharged on December 18, 1936, for his attendance at the meet- ing of the checkers held on December 17, 1936. We cannot believe that the proximity of the discharge to the concerted activity was merely fortuitous and that the true reason can be laid to the "shortages" which had commenced in October 1936. We find therefore that Lawrence Dowling was discharged by the respondent Condenser because of his part in the concerted activity of the checkers for the purposes of protesting Hughes' discharge, of bargaining collectively for increases in wages, and of inviting and aiding the Committee for Industrial Organization to establish the United in the respondents' plant. I3y discharging Dowling because he participated in concerted activity for the purposes of collective bargaining and other mutual aid and protection, the respondent Condenser has interfered with, restrained, and 'coerced its employees. in the exercise of the rights guaranteed by Section 7 of the Act. In addition, his discharge dis- couraged concerted activity for the purpose of collective bargaining, 37At one point, Munn , head foreman in charge of several of the departments, testified .there were so many that came to me with shortages that that was the regular pro- cedure , to fill out a form, the checker to take that upstairs and investigate it, trace it all the-way back." 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and had the effect of discouraging the formation of and membership in the United, a labor organization intended by employees to achieve collective bargaining, which shortly after this discharge did attempt to organize employees in the respondent's plant with the assistance of the checkers.38 Joseph Russo. Joseph Russo was also discharged on December 18, 1936. He too attended the checkers' protest and organizational meeting on December 17, 1936. At that meeting, in the presence of Zieborak, Russo had been elected chairman of the recruiting com- mittee and had been appointed a member of the committee of four to contact outside labor organizations. Previous to December 17, 1936, Russo had discussed labor organization with various employees in and outside the plant. Russo had been hired by Leary on Decem- ber 2, 1936, and worked as a checker during the period of his employment. At 5: 30 p. m. of the day on which he was discharged, Chait, the new head checker, told Russo to report to him before leaving. Russo found Chait in the personnel office. Chait told Russo he was dis- charged and handed him his pay checks . Russo asked for the reason. Chait's reply, and the ensuing conversation, according to Russo's testimony, was as follows : "Well, for inefficiency." He says that was the reason and I says, "Well, Mr. Chait, how do you know that I am inefficient, you have only been here 2 days and you can't very well know whether my work has been inefficient in that time." He says, "Well, it is for economic reasons." I says, "Mr. Chait, I am going to be replaced, am I not?" And he says, "Yes, you are going to be replaced." I said, "Well, does the economic reason fit in there?" And he says, "Well, for a thousand and one reasons." I said, "Please, Mr. Chait, just give me one reason and then I will be satisfied." He says, "Well, beat it." Although Beyer, the secretary and treasurer of the respondent Cornell, was present as Russo was escorted from the plant, Beyer refused upon request to advance a reason for the discharge and told Russo to leave the plant. It was stipulated by counsel for the parties at the resumed hear- ing that if Chait were called by the respondents, he would deny the statements attributed to them by Russo, and he would testify that he "did not in any way do anything or say anything which would tend to indicate any hostility to the rights of the employees under the 33 Matter of Indianapolis Glove Company and Amalgamated Clothing Workers of Amer- ica, Local No. 145, 5 N. L. R. B. 231; Matter of Stehli and Co., Inc. and Textile Workers Union of Lancaster, Pennsylvania and Vicinity, Local #133, 11 N. L. R. B. 1397. Y CONDENSER CORPORATION OF AMERICA 393 Wagner Act, and would particularly deny any acts or conduct which would tend to violate any provisions of that Act ." Nevertheless, the .testimony of Russo appears to be straightforward and convincing, and his account is substantially in agreement with the testimony of John Spisso and Joseph De Sepio, discussed hereafter . We find the facts in this respect to be in accordance with the testimony of Russo as stated above. It was stipulated by counsel for the respondents and for the Board that the employment record shows that the reason for discharge was "Unsatisfactory work," and that it was marked "No rehire." Nicholas Tangney, head foreman in charge of departments 14, 15, and 16, testified that although Russo's checking duties were confined to department 14, he was constantly to be found wandering through deparments 15 and 16 in the company of Joseph De Sepio and John Spisso, the checkers for those departments . He also testified that he saw these men smoking in the men's room several times. Tangney testified that he cautioned the three men about smoking , and asked Russo to keep out of departments 15 and 16. He also testified that he received from operators six or seven complaints of mistakes in Russo's checking. Asked whether he ever talked to Russo about his work, he replied : "Once or twice, I believe." Although Tangney testified that he observed Russo wandering from his department from the time Russo first began to work, he also admitted that he had never complained to Hughes although Hughes was Russo's superior until replaced by Chait 2 days before Russo's discharge. Although Tangney admitted that he made no complaint to Hughes at any time in respect to any of the alleged unsatisfactory behavior of the checkers, he testified that he did inform Chait of the alleged delinquencies of Russo, De Sepio, and Spisso. In the case of Russo, Tangney testified that he complained to Chait that Russo was wandering from the department where he belonged, and was making too many errors, and that this complaint was indirectly responsible for Russo's discharge. Chait took up his duties at South Plainfield on December 17, 1936, the day before Russo was discharged. Harold Schaefer , who was during the time under discussion the chief inspector of the electrolytics test department , covering depart- ments 14, 15, and 16, also testified that he observed Russo, De Sepio, and Spisso roaming about and smoking in the men's room. He testified that he reported this to Hughes at least four or five times and later to Chait. Schaefer stated that the chief complaint against Russo was that he conversed with the girls who were testing and thereby interfered with their work. Schaefer testified that Hughes promised that he would attend to the matter which was the subject 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the complaint, but that Hughes took no action. Since Hughes did, not see fit to take any action in the premises, it seems strange that Chait, his successor, should have adopted, 2 days after assuming his duties at South Plainfield, and apparently without warning, the most drastic sanction at his command. If Schaefer's testimony con- cerning complaints made to Hughes is to be credited, 'therefore, it merely served to confirm a finding, based upon the circumstances of Russo's assistance of the checkers' labor organization and the circumstances surrounding his discharge, that the reason for the dis- charge was not Russo's alleged unsatisfactory work or misconduct. We are further impressed with Russo's testimony that prior to the date of his discharge no superior at any time called inefficiency to his attention; on the contrary, Hughes, his superior for all but the last 2 days of employment, complimented him on his work. We are also satisfied that Russo's failure to punch his ,time card on 2 mornings and at 3 lunch times was not the reason for his discharge. These omissions were-not recorded on the employment record or advanced in the testimony of any of Russo's superiors as the reason for his discharge. It was not contended that Russo profited by these omissions. The fact that Russo's discharge followed so closely upon his attend- ance at the checkers' meeting of December 17, 1936, the conversa- tions with Chait and Beyer at the time of the discharge, together with the circumstances surrounding the discharges of Hughes, De Sepio, and Spisso,39 all convince us that Russo's discharge was due to his participation in concerted activities with the other checkers on December 17, 1936, and negate the contention that Russo was discharged for unsatisfactory work or misconduct. We therefore find that Joseph Russo was discharged by the respondent Condenser because of his participation in the concerted activity of the checkers. By discharging Russo because he partici- pated in concerted activity for the purposes of collective bargaining and other mutual aid and protection, the respondent Condenser has interfered with, restrained, and coerced the employees in the exercise of the rights guaranteed by Section 7 of the Act. In addition, his discharge discouraged concerted activity for the purposes of collec- tive bargaining, and had the effect of discouraging the formation of and membership in the United, a labor organization intended by employees to achieve collective bargaining, which shortly after this discharge did attempt to organize employees in the respondents' plant with the assistance of the checkers.40 89 The latter two are more fully discussed below 40 Matter of Indianapolis Glove Company and Amalgamated Clothing Workers of Amer- ica, Local No. 1115, 5 N. L. R. B. 231;, Matter of Stehli and Co, Inc and Textile Workers Union of Lancaster, Pennsylvania and Vicinity, Local #133, 11 N L R B. 1397. CONDENSER CORPORATION OF AMERICA 395 The money Russo has made at odd jobs since his discharge will be deducted in computing the back pay to which he is entitled. How- ever, his activities as voluntary organizer for the United, for which he was reimbursed only to the extent of expenses incurred, will not be considered in computing his back pay. JohnSpisso and Joseph De Sepio. Both Spisso and De Sepio-were also discharged on December 18, 1936, the day following their at- tendance at the checkers' meeting. Zieborak was present at the meeting and observed their participation. Spisso and De Sepio were both subsequently reinstated by the intervention of Diana on January 21, 1937, and they were again discharged on January 28, 1937. It is alleged in the third amended complaint that both discharges of both men were discriminatory. Spisso was in charge of checking for departments 15, 16, and 19, and De Sepio was his helper. On December 18, 1936, the day of the dis- charge, Spisso conducted Chait, the new head checker, on a tour of inspection. Chait expressed himself as well satisfied with the way Spisso was handling his job, told him that he would get a second helper, and stated that he would obtain an increase for Spisso be- cause of the length of his service. Chait and Spisso separated at 5 o'clock on December 18, 1937. At about half past five, Chait told Spisso to complete his work before leaving for home and to report to him. Spisso found Chait in Leary's personnel office. De Sepio, Russo, and Lawrence Dowling were also present. According to the testimony of Spisso, Chait addressed De Sepio, Russo, and him as follows : "I don't know how to do this . . . I really don't know you fellows, I was just beginning to know you, I only knew you a few days, but your services aren't needed here any more." Russo re- quested to know the reason for the discharges, and Chait said : "I really don't know . . . I believe it was inefficiency." De Sepio, whose account of the circumstances of the discharge was substantially the same as Spisso's, testified that Chait also said that he "had or- ders" to discharge them. De Sepio then asked Beyer the reason for his discharge. Beyer did not answer. Leary then took the identifica- tion buttons of De Sepio and Russo, and they were escorted out of the building. Spisso then sought an explanation from Beyer. Beyer referred him to Reynolds. Spisso told Reynolds that he had been discharged. Spisso testified : He thought a minute and he said, "I believe it was ineffi- ciency," so I talked to Mr. Reynolds every bit of half an hour and I think, in fact I know, I proved that it was not inefficiency. 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Specifically, Spisso indicated to Reynolds that there were relatively very few "shortages" attributed to him. Reynolds revealed to Spisso neither a recorded nor oral description of the alleged inefficiency. So Mr. Reynolds just thought a minute and he said "I don't know," he said, "The whole checking system is not what it should be in this place." When Spisso pointed out that the checkers were not responsible for the system employed, Reynolds, according to Spisso, "just did not say anything, he said, `Well, I am sorry ..."' This conversa- tion took place in the presence of Beyer and Leary. In February 1937, the management in fact altered and simplified the bonus or incentive system which had proved difficult for the checkers to handle. It was stipulated at the resumed hearing by counsel for the parties that if Chait were called by the respondents, he would deny the statements attributed to him by Spisso, and as we have noted above in the discussion of Russo's discharge, that he would testify that he did not violate in any way the rights of the employees under the Act. Nevertheless, the testimony of Spisso and De Sepio appears to be straightforward and convincing, and it is in large part mutually corroboratory and substantially in- agreement with Russo's testi- mony. We are convinced that the testimony of these men is en- titled to greater weight than that of Chait, and we find it worthy of credence. The employment records of both Spisso and De Sepio show that they were discharged on December 18, 1936, for a -reason given as unsatisfactory work, and the comment recorded was "No re-hire." Tangney, head foreman in charge of departments 14, 15, and 16, testified that from about December 1, 1936, and thereafter, he noticed that Spisso and De Sepio were loafers and were violating company rules. He testified that he complained to Chait, but never to Hughes, of the alleged difficulties with Spisso, De Sepio, and Russo. We have already discussed, in relation to Russo's discharge the testimony of Harold Schaefer that he observed Russo, De Sepio, and Spisso roaming about and smoking in the men's room. He testi- fied that Spisso was not at his desk when needed for checking. He further testified that he reported these matters to Hughes several times and later to Chait. Schaefer further testified that Hughes informed him that he would attend to the matter which was the subject of the complaint, but that Hughes took no action. We have already observed that since Hughes did not see fit to take any action, it seems strange that Chait, his successor, should have adopted, 2 days after assuming his duties, and apparently without warning, the most drastic sanction at his disposal. If Schaefer's testimony CONDENSER CORPORATION OF AMERICA 397 concerning his complaints to Hughes is to be credited, therefore, it merely serves to confirm a finding, based upon the circumstances of Spisso's and De Sepio's assistance of the checkers' labor organization and the circumstances surrounding their discharge, that the reason for these discharges was not their alleged unsatisfactory work or misconduct. It is also noteworthy that although both Tangney and Schaefer testified that they made complaints to Chait about Spisso's and De Sepio's alleged loafing and smoking, Chait could not give any details when he discharged Russo, Spisso, and De Sepio for "inefficiency." Leary, on the other hand, testified that the reason for De Sepio's discharge on December 18, 1936, was for inaccuracies in his records in the form of "shortages," and for failure to punch his time card. Leary did not testify that these alleged shortcomings of De Sepio's were called to his attention, or that his inaccuracies were relatively numerous. At the time of De Sepio's discharge, Chait merely stated without explanation that the reason was inefficiency. Although Leary was present, she does not assert that she advanced an explana- tion. There is no evidence that any explanation was given. We are satisfied that the alleged shortages and failure to'punch his time card were not the reason for De Sepio's discharge.- Moreover, the fact that only these reasons were advanced by Leary for De Sepio's discharge of December 18, 1936, casts further doubt upon the asser- tions of Tangney and Schaefer that the true reason was loafing and smoking. Subsequent to their first discharge on December 18, 1936, both Spisso and De Sepio maintained an active interest in the checkers' labor organization. As a representative of that organization, Spisso met one of the representatives of the United for the purpose of effect- ing an affiliation. Spisso joined the United during the first half of January 1937 when its organizational campaign began. At the mass meeting of the United on January 18, 1937, Spisso was elected treas- urer of the South Plainfield local. The fact of Spisso's election was published on January 19, 1937, in the Plainfield Courier-News, a newspaper widely read in South Plainfield. De Sepio had also joined the United during the first half of Janu- ary 1937, and prior to the election of officers of the local. At the meeting of January 18, 1937, De Sepio was nominated for the offices of vice president and treasurer of the United, but he was defeated. Between January 18 and January 20, 1937, De Sepio was approached by a man named Spinelli, a special policeman for the Borough of South Plainfied, who told him if he wanted to go back to work "to see Frank Diana and to forget about this union, so we would not have any more trouble in town." De Sepio then informed Spisso 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Diana wanted to see all the South Plainfield employees who had been discharged. On the night of January 20, 1937, as stated above, Diana met with such a group of employees at a nearby night club called the Silver Moon. Theodore D'Addario, one of the South Plainfield employees present, testified that at this meeting Diana "said he would give us our jobs back." He further testified: And he also wanted to know why a person outside of South Plainfield should come into town and try to organize the Con- denser Corporation of America Union when we ourselves couldn't do it. Well, I didn't see any harm in that, but he said it would be our own local, not saying anything about company unions. The next day we were supposed to meet him in front of the Condenser Corporation to see Mr. Blake, trying to get reinstatements. De Sepio, who was also present at the Silver Moon meeting, testified that D'Addario's testimony was substantially in accordance with his own recollection of the meeting. Spisso also testified to the same effect, adding that Diana stated that his purpose in starting an inde- pendent union was to obtain increases in pay and to participate in social activities. We find that these accounts accurately present the facts. On the morning of January 21, 1937, Diana ushered the discharged South Plainfield workers into the plant for an interview with Blake and Beyer. As we have indicated in Section III C, above, at this conference Diana received permission to organize in the plant. An account of the subsequent rise of the Independent, from the beginnings here set forth, to the status of a company-dominated and supported labor organization is set forth in Section III C, above. It is enough to indicate here that it appears from the circumstances surrounding the reinstatements that Blake, representing the respond- ent Condenser, supposed that the men he was reinstating would thereafter support the Independent and cease their active interest in the United. In this he and Diana were disappointed. The respondent Condenser reinstated all of the South Plainfield checkers whom Diana had presented on January 21, 1937. None, however, was reinstated as a checker, although several testified they expressed their preference for continuing in their former positions. As a result Spisso and De Sepio were placed in the stock or inventory room. Although the respondent Condenser contends that this fact is indicative of its judgment that these men had not performed their checking duties satisfactorily, we are convinced on the basis of the evidence that its purpose was to break up the closely knit group of union-minded checkers and to place them in positions which would not necessitate as much movement and contact with employees as CONDENSER CORPORATION OF AMERICA 399 checking and w hich' would consequently diminish their union activi- ties 41 except such as could be performed with the respondent's permission. During the week between January 21 and January 28, Spisso continued to be active as treasurer of the United. De Sepio continued his active membership between January 21 and January 28, 1937, by attending the mass meeting of the United on January 26, 1937. He also served actively and effectively on a com- mittee of the United charged with the function of obtaining new members from among the employees of the respondent Condenser. On January 27, 1937, the day preceding the second discharge of Spisso, De Sepio, and others of those who had been reinstated 6 days before, Diana called four or five of the former checkers into the poolroom across the street from the plant during the lunch hour. Spisso and De Sepio were among this group. Diana appeared to be angry. He said that he had been through the plant that morning with blanks in an attempt to sign the men up for the Independent, and that while in the factory : . .. somebody told me that you fellows turned against me .. . When I met you at the Silver Moon I took it for granted that you were going to stick with me and when I walked into the place this morning I found out differently . . . Now I want to know just what is what, either you are going to stay with the other, or you are going to be with us .. . Diana requested that they meet with others in the poolroom at 5: 30 that night for the purpose of giving him their decision. He then turned to De Sepio and said: "You, of all people, I never expected it from you." Spisso, De Sepio, D'Addario, and others were present at the poolroom at 5: 30 p. in., January 27, 1937. Diana had not arrived, and they decided not to wait but to leave a message on the back of a cardboard poster. D'Addario wrote the following agreed statement : We, the undersigned, wish to remain with the other group. This was signed by all those present, including Spisso and De Sepio, and it was left for Diana in the poolroom. At 2 or 3 o'clock on the afternoon of January 28, 1937, there was all announcement in the plant through the public-address system to the effect that Diana wished to see Beyer. At 5: 30 on the same af- ternoon, Joseph Chasm, supervisor in charge of the stock or inven- 41 Cf. Matter of Fansteel Metallurgical Corporation and Amalgamated Association of Iron, Steel and Tin Workers of North America , Local 66, 5 N. L R. B 930, affirmed, so far as material here, in National Labor Relations Board Y. Fansteel Metallurgical Corporation, 306 U. S. 240. 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tory room where Spisso , De Sepio, and D'Addario had been put to work upon their reinstatement on January 21, 1937, discharged all three of them. De Sepio testified as follows in describing Chasm's remarks : "You fellows are discharged"; so he turned to me and he said, "I am sorry to see you go, Joe," he said, "You were doing very nice work and I like your work and I want to keep you ..." So I said, "What are you firing me for? " "Well," he said, "I have my orders." Then he stated something to Spisso and D'Addario. Spisso testified that Chasm told him that although his work was very promising, "I will have to fire you. " Chasm gave Spisso no reason for the discharge . This testimony was corroborated by D'Addario. Counsel for the respondents and for the Board stipulated that if Chasm were called as a witness by the respondents he would deny the statements attributed to him by Spisso , De Sepio, and D'Addario, and he would testify that he "did not in any way do anything or say anything which would tend to indicate any hostility to the rights of the employees under the Wagner Act, and would particularly deny any acts or conduct which would tend to violate any provisions of that Act." Nevertheless, the testimony of Spisso , De Sepio, and D'Addario appears to be straightforward , convincing, and mutually corroboratory. The actions which they attributed to Chasm seem to fit easily into the pattern of events leading up to the discharges. We therefore find the circumstances of the discharges to have oc- curred in accordance with the testimony of Spisso, De Sepio, and D'Addario discussed above. For each employee discharged or laid off, the respondent Con- denser customarily made out a pay order or discharge slip on which was recorded the date of the dismissal , the reason, the name of the supervisory employee making the discharge or lay-off, and further remarks concerning rehiring the employee dismissed. Board Ex- hibit No. 51 represents a compilation of the pay orders of the various employees named in the complaint . The compilation was made by Clara S: Leary, personnel director of the respondent Condenser, from the original records of this respondent . Pay orders or discharge slips for Spisso and De Sepio each list a dismissal on January 28, 1937, for the reason : "Loafing , wandering around." They are signed "J. Chasm," and in the column concerning rehiring there is to be found in each case the word "No." Leary further testified that her private records revealed that De Sepio's second discharge was "for loafing and wandering around the plant where he had no business to be. " But during the week in CONDENSER CORPORATION OF AMERICA 401 which De Sepio worked in the stockroom no complaints were made to him that he was loitering. Moreover, we have found that Chasm did not advance any reason at the time of the discharge; on the contrary, he stated that he liked De Sepio's work but had orders to let him go. During the week in the stockroom Spisso was compli- mented by Chasm for the way he performed his work and particu- larly for the manner in which he supervised the two manual workers tinder him. Although Spisso was questioned by counsel for the respondent Condenser upon his omission on several occasions to punch his time card, no contention was made by witnesses or on the basis of the Company records that this was the reason for the second discharge. Spisso's time card did contain three unpunched spaces. This card, however, was dated for the week ending December '12, 1936. Spisso was subsequently reinstated on January 21, 1937, despite this defect, and it seems unlikely, therefore, especially since no mention was made of the failures to punch at the time of either discharge, that this was the reason for his second discharge. The discharges of Spisso and De Sepio on December 18, 1936, fol- lowing so closely upon their concerted activity of December 17, 1936, and the significant tone of the conversations with Chait and Rey- nolds at the time of the discharges, taken together with the circum- stances of the subsequent reinstatements made for the purpose of aiding Diana's organization of the Independent, the break with Diana. on January 27, 1937, and the circumstances of the second dis- charges of January 28, 1937, all considered in connection with the discharges of Hughes, Lawrence Dowling, D'Addario, and others, lead us to the conclusion that the discharges of Spisso and De Sepio on December 18, 1936, and again on January 28, 1937, were effected because of their participation in concerted activity with other check- ers and because of their subsequent activities in support of the United. .We find that they were in pursuance of a sustained campaign of the respondent Condenser first to interfere with and restrain the concerted activity of the checkers, and by the time of the second discharges to discourage membership in the United and to encourage membership in the dominated Independent. By discharging Spisso and De Sepio on December 18, ' 1936, be- cause they participated in concerted activity for the purpose of collective bargaining and other mutual aid and protection, the re- spondent Condenser has interfered, with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. In addition, these discharges discouraged, concerted activity for the purpose of collective bargaining, and had* the effect of dis- couraging the formation of and membership in the United, a labor organization intended by employees to achieve collective bargaining, 402 DECISIONS OF NATIONAL LABOR' RELATIONS'BOARD which shortly after this discharge did attempt to organize employees in the respondent's plant with the assistance of the checkers.42 We further find that these employees were discharged for the second time on January 28, 1937, because of their refusal to support the Independent and because of their former participation in the concerted activities of the checkers and their continued activities in support of the United. By these discharges on January 28, 1937, the respondent Condenser has discriminated in regard to their hire and tenure of employment, thereby discouraging membership in the United, and encouraging membership in the Independent. By these discharges on January 28, 1937, the respondent Condenser has inter- fered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. Spisso prefers to be reinstated to his former position as a checker rather than as a stockman, and we will so order. In order to effectuate the policies of the Act, we will order the respondent Condenser to offer De Sepio a choice of reinstatement to his former position as a checker, of reinstatement to his subsequent position as a stockman, or of continued employment in his present position. Theodore D'Addario. Theodore D'Addario was discharged on January 8, 1937, was reinstated on January 21, 1937, and was dis- charged again on January 28, 1937. It is alleged in the third amended complaint that both discharges were discriminatory. D'Addario was a clock checker. His duty was to check cards punched by the time clock against the time sheets kept by the rest of the checkers and correct all discrepancies. D'Addario attended three or four meetings of the checkers. Zieborak attended the first of these meetings on December 17, 1936. At one meeting, on Tuesday, January 5, 1937, a representative of the United was present to confer with the checkers concerning organiza- tion of the plant by the United. On Friday morning, January 8, 1937, Chait said he wanted to speak with D'Addario. D'Addario testified, and we find, that the following conversation took place : ... he started to hem and haw, and so on, and I said, "What is the matter, Mr. Chait?" "Can't you talk?" He said, "I have bad news for you." I says, "I know. I am through." He said, "That's right," and I asked him is there any reason for it and he didn't give me any reason, so I said, "Well, let's go and see .Mr., Beyers.411 I want to know why I am fired. I don't see any reason for it." 42 See footnote 40 above. 13 Beyer. CONDENSER CORPORATION OF AMERICA 403 D'Addario found Beyer. D'Addario testified, and we find, that the following conversation took place : I asked him for a reason for my dismissal and he said, "Probably inefficiency." I said, "Mr. Beyers 43 there is no in- efficiency about me. I have all my records of all discrepancies I found and proof of all corrections in my little red book which is in the record desk up in the office." And he says, "Well, I haven't anything to do with your dismissal. Go and see Mr. Reynolds." D'Addario obtained an interview with Reynolds. D'Addario testified, and we find, that the following conversation took place : I told him, "I understand from Mr. Chait and Mr. Beyers 48 that it is through you that I am being discharged. Have you any reason for it?" . . . He informed me that there were too many shortages. He said there were thirty of them. I told him I could account for eighteen of those shortages, which I can, and he admitted, "Although it was not your fault, you in turn should have caught these shortages," and I told him, "Is there any chance for reinstatement?" He then said, "Well we are going to leave your job open for a week and try it without you." I then said, I asked him if it doesn't run right without a man would I be reinstated and he said "no." The next day I found out there was a man in my position. At the resumed hearing, it was stipulated by counsel for the re- spondents and for the Board that the employment record lists as the reason for D'Addario's January 8, 1937, discharge the word "unsatis- factory," and that the record was marked "No re-hire." D'Addario was not responsible for 18 of the 30 "shortages" 44 because these were caused by the failure of the maintenance-depart- ment checker to send up the labor time sheets necessary for D'Addario to check against. As for the remaining 12 of the 30, D'Addario was not confronted with a written record of these alleged discrepancies nor was he given an opportunity to look into or discuss them. Again, no evidence is presented to show that even if D'Addario was respon- sible for the alleged shortages, his record was relatively poor as compared with the rest of the checkers or his successor. Hughes had called only one mistake to his attention. He had never been warned about or disciplined for his mistakes. Hughes had complimented him on his work. Moreover, in spite of his allegedly unsatisfactory work, D'Addario was reinstated with the group sponsored by Diana on January 21, 1937. As in the cases of Spisso and De Sepio, D'Ad- 41 Beyer. "Insufficient pay checks 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dario was assigned to work as a stockman although he requested to be returned to his former checking position. We find that the refusal to reinstate D'Addario to his former position as a checker was due, as in the case of the other checkers discussed above, to a desire to place the former checkers in positions circumscribing their previous widespread contacts with employees in the course of their duties. The stockroom particularly was fenced off from all other rooms and could not conveniently be left.45 Prior to his reinstatement on January 21, 1937, D'Addario had joined the United. He was constantly active and successful in re- cruiting members for that organization. He attended the mass meet- ing of the United held on January 26, 1937. We have already discussed the circumstances surrounding the short period of employment of the group thus reinstated by Diana, their break with Diana on January 27, 1937, when he requested support for the Independent , and their discharge on January 28, 1937. It was D'Addario who wrote the note in the poolroom on January 27, 1937, which he and other reinstated employees signed, informing Diana in effect that they would not cooperate in supporting the Independent but would continue to support the United. D'Addario was discharged by Chait on January 28, 1937, together with Spisso and De Sepio. Chait gave no reason for the discharge except that he had "orders" from his superiors. Chait did say to D'Addario : ". . . and as for you, Ted, you fool around too much." We are satisfied with D'Addario's testimony explaining that this remark was in the nature of a jest. We have already discussed, in connection with the cases of Spisso and De Sepio above, the stipulation regarding what Chait would testify if called as a witness. The circumstances of D'Addario's discharge of January 28, 1937, have been more fully discussed above in connection with the discharges of Spisso and De Sepio. D'Addario's discharge slip listed as the reason for the discharge of January 28, 1937, "Loafing in men's room." It was signed "J. Chait," and the comment in the column for remarks respecting rehir- ing was, "No." We are convinced that Chait was instructed by his superiors to fill out the discharge slip in the manner described. The discharge of D'Addario on January 8, 1937, following his sustained activity in concert with the checkers, the inability of his immediate superior, Chait, the head of the checking department, to give a reason for the discharge , and the unconvincing reason advanced by Chait's superior, Reynolds, taken together with the subsequent reinstatement made for the purpose of aiding Diana's organization 45 See footnote 41, above. CONDENSER CORPORATION OF AMERICA 405 of the Independent, the break with Diana on January 27, 1937, and the circumstances of the second discharge of January 28, 1937, all considered in connection with the discharges of Hughes, Lawrence Dowling, Peterson, Spisso, De Sepio, and others, lead us to the con- elusion that the discharges of D'Addario on January 8, 1937, and on January 28, 1937, were the result of his participation in the concerted activity of the checkers and of his support of the United. These discharges were in pursuance of a campaign of the respondent Con- denser to interfere with and restrain the United which it opposed, and, by the time of the second discharge, to aid and encourage membership in the dominated Independent. We therefore find that Theodore D'Addario was discharged on January 8, 1937, because of his participation in the concerted activi- ties of the checkers. By discharging D'Addario on January 8, 1937, because he participated in concerted activity for the purposes of col- lective bargaining and other mutual aid and protection, the respondent Condenser has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. In addition, his discharge discouraged concerted activity for the purpose of collective bargaining, and had the effect of discouraging the forma- tion of and membership in the United, a labor organization intended by employees to achieve collective bargaining, which shortly after this discharge did attempt to organize employees in the respondent's plant with _the assistance of the checkers.46 ` D'Addario was discharged for the second time on January 28, 1937, for declining to support the Independent and because of his former participation in the concerted activities of the checkers and his con- tinuing activities in support of the United. By discharging D'Ad- dario on January 28, 1937, the respondent Condenser has discriminated in regard to his hire and tenure of employment, thereby discouraging membership in the United and encouraging membership in the Inde- pendent. By the discharge of January 28, 1937, the respondent Condenser,has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. D'Addario prefers to be reinstated to his original position as a clock checker rather than as a stockman, and we will order the respondent Condenser to offer him reinstatement to the original position. Herbert Peterson. Herbert Peterson, a checker in department 11, was discharged on December 23, 1936. The day of Peterson's dis- charge followed his attendance at the second meeting of the checkers on the previous night. The first and second checker's, meetings were held at Peterson's home. Zieborak was present at the first meeting. 96 See footnote 40, above 253013-41-vol 22-27 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In addition to his attendance at the checkers' meetings at his own home, Peterson's efforts in furtherance of concerted activity had been proceeding for about a month prior to his discharge. He had used prevalent grievances, such as the lack of adequate water fountains and the presence of smoke and fumes, as talking points in advocating organization among the numerous employees with whom his check- ing brought him in contact. During the week preceding his dis- charge and between the first and-second checkers' meeting, -Peterson had complained several times to Manny Sanchez, foreman in charge of department 11, about the level of wages. Peterson's interest in organizing the workers sprang from the same motive to benefit the Borough of South Plainfield as Diana's interest in organizing the Independent and aiding the Brotherhood. The means adopted by the two men, however, were antithetic. Peterson testified : I did not think that the people in the plant were getting fair play, they were being worked to death and they were only being paid a very limited sum for their labor. I, too, am somewhat interested in the town, due to the fact that my folks are heavy taxpayers and this company wasn't bringing anything very ma- terial to the town and with wages of that sort you don't build up a town'very much and I personally think that . . . it is a sweat shop. At 5 o'clock on the afternoon of December 23, 1936, Chait, who had become Hughes' successor as head checker, came to Peterson's desk. Peterson testified that Chait waited until he had finished his work and then said: It is funny to leave all the dirty work to me . . . I am sorry, but I have to discharge you . . . They are forcing me to do it ... I have tried to keep you but they will not allow me to do so .. . it is too bad they are letting you go because . . . I like your work . . . This is a funny company . . . I don't know' why you are being fired. Peterson further testified : Mr. Chait told me that he was very sorry that he had not made my acquaintance at an earlier date because if he had he would have told me to who to speak and to whom not to speak and what to say and what not to say. It was stipulated at the resumed hearing by counsel for the parties that if Chait were called by the respondents, he would deny the state- ments attributed to him by Peterson, and, as we have noted above in the discussion of Spisso's discharge, he would testify that he did not violate in any way the rights of the employees under the Act. CONDENSER CORPORATION OF AMERICA 407 Nevertheless, we are persuaded by the candid and convincing nature of Peterson's testimony, and the similarity it bears to the circum- stances surrounding Lawrence Dowling's discharge by Chait, that it is entitled to greater weight than Chait's testimony and we find it worthy of credence. It was stipulated at the resumed hearing that Peterson's employ- ment record listed the reason for the discharge as "unsatisfactory" and that it was marked with a notation "Never re-hire." - Bleich, treasurer and plant superintendent of the respondent Condenser, tes- tified that he caused Peterson's discharge by recommending such action to Peterson's superior because of numerous complaints from employees about his checking. We find this testimony to be untrust- worthy. The questions put to Bleich concerning this point by coun- sel for the respondent Condenser were leading ; moreover, it seems highly unlikely that a ranking official like Bleich should feel called upon to take a part in the discharge of a checker not immediately under his supervision for a routine cause and whose alleged short- comings would customarily have been reported by the employees to the foreman in charge of their department rather than to the plant superintendent. Munn, the foreman in charge of a group of depart- ments of which Peterson's department was one, testified that he received complaints about Peterson's shortages quite often. Specifi- cally, however, Munn could recall only one case in which a shortage complaint respecting Peterson's checking had been sustained. More- over, Munn's testimony indicates that by the nature of the checking system complaints and shortages were to be expected regularly. Munn testified : . . . there were so many that came to me with shortages that that was the regular procedure, to fill out a form, the checker to take that upstairs and investigate it, trace it all the way back. We are impressed, moreover, with Peterson's testimony concerning the difficulties of accurately checking unit production by scale weight, the method employed in the plant. Errors were caused by the lack of uniformity in the amounts of glue and windings on condensers, by the sensitivity of the platform scale to drafts on windy days, and by the fact that the scale was affected when other employees passed it. Peterson complained to Chait several times about this condition. It appears, therefore, that errors of calculation made by Peterson were caused by equipment rather than by inefficiency. Moreover, Peterson was not criticized for his work by Sanchez, foreman in charge of the department in which Peterson checked production, or any others. , Despite complaints as to shortages, we are convinced that Peterson's work was not inferior and was not considered inferior either by-Sanchez, Munn, Bleich,_or Chait. Despite the complaints, 408 DECISIONS OF NATIONAI. LABOR RELATIONS BOARD Chait told Peterson lie did not know why Peterson was being fired, and Peterson's record was not compared with that of Zieborak, a checker who was not discharged. We find that the alleged inefficiency was not the reason for Peterson's discharge. Peterson was not later reinstated on January 21, 1937, when Diana secured the reinstatement of the other South Plainfield checkers. This was because Peterson was notified too late about Diana's desire to see him. When he subsequently met Diana on the street, Diana asked him if he would like to return to work for the respondent Condenser. Peterson said he would first like to know the reason for his discharge. Diana replied : "Well, they had their reason." Peter- son,then informed Diana that a Plainfield lawyer had been instructed to initiate proceedings before the Board in behalf of the checkers: Diana replied that the Board could not help Peterson, and told Peter- son to get in touch with him during the subsequent week. Peterson did not attempt to see Diana. Although Peterson desired to return to work, he did not care to cooperate with Diana because he did not know Diana's status and he believed Diana's representations were "a trick." As the facts brought out by the evidence indicate, Peterson was entirely correct in his suspicions of Diana. Under the circumstances, we are satisfied, and find, that Peterson's activities in furthering from the beginning the cause of free collec- tive action and organization among the employees, and his participa- tion in at least two organizational meetings of the checkers' labor organization held in his home, were the reasons for his discharge. The circumstances surrounding his discharge, taken together with the fact that his alleged inefficiency was not the cause of the dis- charge, and considered in connection with the discharge of Hughes, Lawrence Dowling, D'Addario, Spisso, and De Sepio, all lead us inescapably to the conclusion that Peterson's discharge was but another part of the campaign of the respondent Condenser to destroy the labor organization of the checkers before it attained size or power. We therefore find that Herbert Peterson was discharged by the respondent Condenser on December 23,'1936, because he participated in concerted activity with the checkers. By discharging Peterson because he participated in concerted activity for the purpose of col- lective bargaining and other mutual aid and protection, the respond- ent Condenser, has interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed by Section 7 of the Act. In addition, his discharge discouraged concerted activity for the purpose of collective bargaining, and had the effect of discourag- ing the formation of and membership in the United, a labor organiza- tion intended by employees to achieve collective bargaining, which CONDENSER CORPORATION OF AMERICA 409 shortly after this discharge did attempt to organize employees in the respondent's plant with the assistance of the checkers.47 Arnold-Dowling. Arnold Dowling was discharged on Deco ibeir .22, 1936. Lawrence Dowling, the checker who was discriminatorily discharged on December 18, 1936, is his brother. Arnold Dowling was not a checker. Prior to his discharge, he did not attend any organizational meetings of the checkers or of any other labor organi- zation. He discussed matters concerning the United only with his brother, Lawrence, and he did not in any way lend assistance to Lawrence in connection with union activities. The only semblance of participation in concerted activities on his part appears in Arnold Dowling's testimony concerning several conversations relating to working conditions which he had with two or three of the super- visors. Iii these conversations, which took place largely in Novem= her 1936, Arnold Dowling testified that he requested the supervisors to remedy the cold and wet conditions under which some of the employees, who had complained to him, were working. However, Arnold Dowling personally knew of no word or act on the part of any supervisor or person connected with the management indicating hostility to his rights under the Act. With respect to two of the supervisors referred to, it was stipulated at the resumed hearing that if called to testify they would deny any acts or conduct which would tend to violate any provisions of the Act. Arnold Dowling joined the United at its first mass meeting on January 14, 1937, 3 weeks after his discharge. Approximately 1 week before he was laid off, Arnold Dowling was transferred from his position as solution mixer for the assembly line in department 14 to a position as a packer of capacitors in de- partment 8. This transfer occurred prior to his brother's labor activities and discharge. It is clear, and Arnold Dowling himself admitted, that his transfer was due in part to slack conditions in department 14. It is probable that Dowling was selected for trans- fer because of a suspicion on the part of Blake and Tangney 48 that Dowling had deposited rubber bands in a solution he was mixing which was required to be virtually without foreign impurities. Arnold Dowling testified that after his brother's discharge, Harold Brafman, head foreman of department 8, continually watched him. Brafman denied that he was watching Dowling. He explained that his desk was situated 6 feet behind the packing bench on which Dowling was working. Arnold Dowling testified that Brafman dismissed him on December 22, 1936, saying that he would have to lay him off because there was not enough work left for him. This 47 See footnote 40, above. 'B Tangoey eras head foreman of department 14. 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reason, given at the time of the discharge, is in conformity with the testimony of Brafman who explained that he hired Dowling merely to work on a temporary 10-day job of packing a certain order for shipment. Thereafter, on December 22, 1936, he sent Dowling to Leary with instructions either to find him other work or lay, him off. Arnold Dowling's discharge slip also listed that he was laid off. Although Harold Brafman's name appeared on the slip, he testified that he had nothing to do with placing the word "No" in the rehire column. This, however, may be attributed to Leary who knew of the rubber-band incident. She testified that her private records revealed that Dowling's transfer even prior to the lay-off or dis- charge was a precautionary measure taken because Blake believed that Dowling was guilty of deliberately destroying the utility of the solution he was mixing. Dowling was in fact never rehired. Upon the basis of this evidence, it is not clear that Arnold Dowling's lay-off or discharge was the. result of union activity. The allega- tions of the complaint with respect to the discharge of Arnold Dowling will therefore be dismissed. Vincent Binicasso, William Wolf, Harry Burr, and John Mazza. Vincent Binicasso was discharged on January 13, 1937, reinstated with Diana's group of checkers on January 21, 1937, again discharged with the group on January 28, 1937, and again reinstated on June 22, 1937. William Wolf was discharged on January 13, 1937, and never reinstated. Harry Burr was discharged January 13, 1937, reinstated with Diana's group on January 21, 1937, and again discharged with the group on January 28, 1937. John Mazza was discharged on January 14, 1937, reinstated with Diana's group on January 21, 1937, again discharged with the same group on January 28, 1937. It is alleged in the third amended complaint that each of these discharges was discriminatory. Of the four men, Wolf was the only checker. He attended several of the meetings of the checkers which have been described above. Wolf joined the United on January 11, 1937, the date which marked the beginning of active organization on the part of the-United. ' Wolf immediately became active in recruiting members for the United. On January 12, 1937, Wolf approached Binicasso immediately before Binicasso started work for the day and handed him several application cards of the United. Binicasso left some of the cards in his coat which hung in the stockroom. Beginning at about 11 o'clock in the morning and continuing during the afternoon, Harold Braf- man, head foreman of department 8, remained in the department constantly, contrary to his custom, and followed Binicasso closely and watched him. He was aided in watching Binicasso by Catherine 11 CONDENSER CORPORATION OF AMERICA 411 Heslin,'13 forelady in charge of departments 7 and 8. In the after- noon of the next day after Binicasso had handed Burr a United application , Binicasso and Wolf arrived together at the men's room. Wolf had just lighted a cigarette and Binicasso was about to light a cigarette when Harold Brafman, who was close behind them, said: I gave you fellows warning, I am afraid we will have to let you go, .. . Binicasso testified, and we find, that the following conversation ensued between him and Brafman : "What am I being discharged for?," and he did not answer, so I said, "I am pretty sure it is not for smoking," . . . so he just shrugged his shoulders , so he said, "Punch your card," and I went to punch my card .. . Brafman spoke to Reynolds , head of the purchase and sales depart- ment, and Reynolds called Wolf shortly after this incident. Wolf testified,'and we find, that the following conversation ensued between them: "I am sorry, I will have to let you go ..." I said, "What for?" He says, "You were smoking." I said: "How about the other members of the Company?" and he says: "Well, we will take care of them later." I said : "There is no sign up there," and he says, "No" and we talked and then he said, "Go up to Mrs. Leary and get your check and get what belongs to you and then leave. That is all." Both Leary and Harold Brafman testified that Binicasso's dis- charge was occasioned by his smoking in the men's room. Seymour Brafman, Harold's brother and a supervisor on the transmitting bench, added that another reason for his discharge was his ineffi- ciency. We cannot accept Seymour Brafman's testimony to this effect. The value of Binicasso's services were recognized by two pro- motions to positions of increased responsibility in his first 2 or 3 weeks with the respondent Condenser. At the time of his discharge on January 13, 1937, Binicasso was in charge of the returned-mate- rials department. Moreover , Binicasso's alleged inefficiency could not have been known to the respondent Condenser prior to this dis- charge because Seymour Brafman testified that the inspection of his books from which he drew his conclusion was made subsequent to Binicasso's discharge of January 13, 1937. There was a rule against smoking in the plant, and the employees were aware of it. It was rarely if ever enforced except by orders 49 Mistakenly spelled Heffler from time to time in the transcript 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to cease and by warnings . Supervisory employees and non-super- visory employees alike were accustomed to smoke regularly in the men's room. Yet Harold Brafman testified that out of the 120 men in his department, he discharged only Wolf and Binicasso for smok- ing. About a week previous to his discharge, Harold Brafman found a group of about 12 smoking in the men's room . This group included the supervisor , Seymour Brafman . At that time, Harold Brafman ordered Binicasso to extinguish his cigarette . At no other time, except that of the discharge, had Harold Brafman spoken to Binicasso about smoking. We cannot believe, on the basis of all the evidence, that either Wolf or Binicasso was discharged for smoking. As mentioned above, at 1 : 30 in the afternoon of January 13, 1937, Binicasso handed Burr, while he was in the plant and on his job, an application card for membership in the United. Burr signed the card, put it in his pocket , and turned it in to Binicasso at the head- quarters of the United on the same day. This, apparently, was the extent of Burr 's union activity prior to his first discharge on Jan- uary 13, 1937. Since October 1936, Burr had been foreman of the whole stock and receiving department with 22 men under him. On January 13, 1937, after Burr had received the United application from Binicasso , Chasm, his supervisor, called D'Amico, one of Burr's subordinates , and informed him that the respondent Condenser de- sired D'Amico's immediate dismissal . Burr testified, and we find, that the following conversation took place: [Chasm said,] "That goes for you too , Burr." I says, "What do you mean ?" "Well," he says, "just that. They asked your immediate dismissal." "Well," I says, "What is the reason for it?" "Well,"' he said, "They claim that you are inetl'icient;'' with- the same breath he told me that, "You did a very good job." Burr asked Beyer for an explanation the next morning , and Beyer refused to give the reason for the discharge. Beyer admitted to to Burr that it was the general policy of the respondent Condenser to change the work of a person not suited for a particular job rather than to discharge him, but he told Burr, "Not in your particular case." Bleich, treasurer and production superintendent of the re- spondent Condenser, testified that this was indeed the general policy of the respondent Condenser. Although it was stipulated that Chasm, if called as a witness, would deny the statements attributed to him by Burr and would further testify as noted above in the discussion of Spisso 's discharge, we are convinced that Burr's testimony is entitled to credence not only be- cause of its own nature but also because of the surrounding events and because , as we have already found , Chasm's stipulated testimony appears unreliable in the cases of Spisso , De Sepio, and D'Addario. I CONDENSER CORPORATION OF AMERICA 413 As for the allegation of Burr's inefficiency, although advanced by Chasm to Burr as the reason he was ordered to discharge him, and supported by the testimony of Mrs. Harold Brafman, we find no record of the respondent Condenser in evidence advancing this, or any other, lawful reason for Burr's discharge. At the hearing, Burr} denied making the errors upon the existence of which rests the claim that he was inefficient, and denied that any errors were brought to his attention. It is clear that Burr was an exceptionally valu- able employee who in his first 3 weeks of employment corrected, a badly disorganized receiving department and was thereupon rewarded by Chasm with the foremanship of the entire stock and receiving department. In this position, Burr supervised 22 employees, and he was placed on a salary. Upon the basis of all the evidence, we find that Burr was not inefficient, and that on the contrary his work was highly valued by the management. The reason for his discharge on January 13, 1937, is not to be found in the alleged inefficiency or irregularities. Mazza joined the United during the week prior to his first discharge on January 14, 1937. Prior to this discharge, he was very active in organizational work and succeeded in recruiting many members for the United. Employees were constantly solicited by him about the plant before and after work and during lunch hour. At about 11: 35 in the morning of January 14, 1937, Jimmy Morris, Mazza's supervisor, told him that he had bad news and that he would have to let Mazza go. We find, despite the stipulation to the effect that if Morris were called to testify he would deny the statements attributed to him, that the following testimony by Mazza accurately presents the circumstances surrounding his discharge : I said, "What's the idea ?" He said, "I don't know. Don't ask me no questions." I said, "What is the matter with these new fellows? Why don't you let them go instead of me? I have more experience than they have." And Jimmy Morris told me to go see Mr. Greenberg and see what it is all about, so I did, .. . When Mazza questioned Greenberg, the head foreman in charge of his department, about the reason for his discharge, Greenberg said, "We are getting slow now." There is conflicting evidence as to whether Mazza's molding section of department 9 was suffering a slack period. Assuming that a lay- off was necessary on January 14, 1937, for business reasons, it is curious that Mazza was selected despite the fact that he was the molder third in seniority and that 11 junior molders remained on the job. There is no intimation that the reason for this discharge was unsatisfactory work. On the contrary, Mazza had been designated previously by Morris as an assistant supervisor and his duties in this 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD capacity were primarily to train other men for work as molders. Moreover, since Leary demanded Mazza's employee's identification button, it is apparent that his dismissal was intended as a discharge rather than a lay-off. Wolf,has never been reinstated. Binicasso, Burr, and Mazza were reinstated by Blake with Diana's group of checkers on January 21, 1937, under circumstances fully described above. On January 18, 1937, Burr was elected vice president and Bini- casso, financial secretary and trustee , of the United at the mass meet- ing of that date. These results were published in the Plainfield Courier-News, the local newspaper; on January 19, 1937. Mazza was appointed chairman of recruiting-for department 9, and many girls aided him in systematic solicitation. Upon the basis of evidence dis- cussed above , we believe that the subsequent reinstatement on Janu- ary 21, 1937, pursuant to the discussion had at the Silver Moon meeting with Diana, was motivated by the desire to discourage mem- bership in the United by attracting certain of its recently elected leaders to the newly launched Independent . On January 26, Burr, Binicasso , and Mazza attended the mass meeting of the United. On January 27, 1937, Diana discovered that the reinstated men could not be won over to, the support of the Independent. The reinstated men were thereupon discharged on January 28, 1937. Burr, Binicasso, and Mazza were among the group thus discharged. We will now discuss the circumstances surrounding the second discharges. On the afternooon of January 28, 1937, as Binicasso was leaving the plant for the day, he saw Harold Brafman, Thornton, and Ten Eyck, the latter being the lieutenant of the South Plainfield police department. Brafman asked Binicasso for his identification and key. Binicasso then said, "What am I getting fired for?" Brafman re- plied, "I don't know anything about it, . . ." While Binicasso was attempting to determine why he had been discharged , Ten Eyck sig- nalled him to leave the plant. Harold Brafman testified that he discharged Binicasso on January 28, 1937, "for not keeping his records in the stockroom accurate." He noted on Binicasso's discharge slip that he should not be rehired. Despite this proscription , Leary nevertheless reinstated Binicasso on June 22, 1937, without consulting Brafman, a fact which is con- sistent with the theory that Binicasso's employment was dependent on reasons within the knowledge of the management as represented by the head of the personnel department 50 and wholly apart from the opinion of his supervising foreman who had information con- cerning Binicasso's value as a worker. Moreover, at the time of the 60 Leary 4 CONDENSER CORPORATION OF AMERICA 415 discharge, Brafman stated that he did not know the reason. Bini- casso's discharge slip listed the reason for the January 28, 1937, discharge as "Smoking," a notation which Brafman could not explain at the hearing. We believe that Binicasso, as he testified, was not warned of his alleged inaccuracy. Brafman admitted at the hear- ing that the alleged inaccuracy consisted of "several small mis- takes . . . that did not amount to very much, ...." We do not believe that Binicasso was at fault or that inaccuracy was the reason for his discharge. Burr had been reinstated on January 21, 1937, to service purchase orders in the purchasing department. His job was to follow up purchase orders in order to remind vendors in a systematic fashion of their obligations with regard to dates of shipment. On January 28, 1937, he, was discharged by Parry, an assistant in the purchasing department. Parry followed Burr into the men's room after work and informed him that the "Company" desired his discharge. Burr testified, and it was apparently not denied, that "the reason given was that they wanted to cut down expenses in that department." No other reason was given Burr at the time of the discharge. Burr's foreman during the interval from January 21 to January 28, 1937, was one Dawson, and his work was directly under the super- vision of Mrs. Harold Brafman, wife of the foreman, and assistant head of the purchasing department. She testified that in the absence of Dawson, who was in charge of hiring and firing, she asked Parry to discharge Burr because Burr was older than she. Mrs. Brafman testified that she recommended Burr's discharge because of irregu- larities in following up delayed shipments. She testified that accord- ing to an inspection, on the day previous to her appearance at the hearing, of 25 to 50 out of perhaps 200 orders serviced by Burr, she found 4 of Burr's orders which were serviced 1 day or more late. In view of the fact that Mrs. Brafman told Burr during the week of January 21 to January 28, 1937, that he "was fitting in there in fine shape," that no criticisms were made of his work that week, and that Parry did not state the alleged reason at the time of the discharge, we cannot believe that Burr's delay in servicing orders was the'reason for his discharge on January 28, 1937. In view of Burr's promotions, it is significant that Mrs. Brafman not only allegedly found him unsatisfactory, but also allegedly thought him unfitted for work in the plant and therefore did not suggest a transfer to another department in preference to discharge. It was, as we have noted, the general policy of the respondent Condenser to transfer an employee rather than lay him off or discharge him. Mazza was reinstated on January 21, 1937, to his former position. On January 28, 1937, Greenberg instructed Mazza to follow him. 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD When they entered Leary's office, Mazza realized that he was about to be discharged, and he handed in his identification button and re- ceived his pay. We find that the following testimony by Mazza accu- rately presents the remaining circumstances surrounding the discharge. Mazza said to Greenberg : "What the hell is this getting to be? A game?" He said, "Please don't ask me no questions. I have nothing to say. Do as you are told, . . ." He said he had no reasons , he doesn't know what it is all about himself. Virtually no reason is advanced by the respondent Condenser for Mazza's second discharge . His discharge slip, signed by Greenberg, lists "Unsatisfactory," and with respect to reinstatement , "No." In addition to Mazza's promotion to quasi-supervisory duty as evidence that his work was highly satisfactory, we find that he has never been criticized but has instead been complimented on his work by six super- visors including Greenberg and Morris . We can only conclude that Mazza's services were not unsatisfactory and that the listed reason was not the real reason for his second discharge . There is no evidence that Mazza was offered a transfer on January 28, 1937, and we find that this is a suspicious circumstance in view of the respondent Condenser's policy in this regard. Taking into consideration the circumstances surrounding the first discharges of Wolf, Binicasso, Burr, and Mazza, following upon Wolf's participation in the concerted activities of the checkers and the activities of all four in support of the United, and taking into consideration also the respondent Condenser 's animus toward; those activities as evidenced by its numerous discharges previously discussed, and upon a thorough consideration of all the evidence discussed above, it is apparent, and we find, that those discharges were due to the union activities of the four employees . The reinstatements of Burr, Binicasso , and Mazza on January 21, 1937, were, as we have found in connection with the simultaneous reinstatements of Spisso, De Sepio, and D'Addario , motivated by a desire to aid in the formation of and encourage membership in the Independent , and at the same time to discourage membership in and support of the United. The discharge of Burr and Binicasso on January 28, 1937 , following the publication of their election to office in the United, and their refusal to desert the United in order to cooperate with Diana in support of the Independent, parallel the discriminatory discharge of Spisso, discussed above. The fact that the discharge of Mazza fol- lowed his intensive recruiting drive as chairman of such activities in department 9, and his refusal to cooperate with Diana in sup- port of the Independent , leads us to find that he too was discharged for his stand with respect to these labor organizations. CONDENSER CORPORATION OF AMERICA 417 We therefore find that William Wolf, Vincent Binicasso, and Harry Burr were discharged by the respondent Condenser on January 13, 1937, and John Mazza on January 14, 1937, because they joined and assisted the United, and, in the case of Wolf, also because of his former participation in the concerted activities of the checkers. We further find that Binicasso, Burr, and Mazza were discharged for, the second time on January 28, 1937, because of their refusal to support the Independent and because of their continued activities in support of the United. By discharging Wolf, Binicasso, Burr, and Mazza, the respondent Condenser has discriminated in regard to their hire and tenure of employment, thereby discouraging member- ship in the United, and in the cases of the latter three, thereby en- couraging membership in the Independent. By these discharges, the respondent Condenser has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7, of the Act. In order to effectuate the policies of the Act we will order the respondent Condenser to offer Burr a choice of reinstatement to either of his former positions. Binicasso was-reinstated to the employ of the respondent Conden- ser on June 22, 1937. In order to effectuate the policies of the Act, we will ordel the respondent Condenser to offer Binicasso, in addi- tion to the amount of back pay lost, a choice of reinstatement to his former position or of continued employment in his present position. Mazza was reinstated to the employ of the respondent Condenser on April 26, 1937. In order to effectuate the policies of the Act, we will order the respondent Condenser to offer to Mazza the back pay which he would have earned had he not been discriminatorily discharged. Joseph Zsamba. Joseph Zsamba was discharged on January 14, 1937. Prior to his discharge, he did not participate in the concerted activities of the checkers. He testified first that he joined the United at its first mass meeting on January 14, 1937, and later asserted that he joined a week previous to that date, and was active in recruiting members before his discharge. He testified that on January 13, 1937, he approached an employee outside the factory during lunch hour. This employee he identified only as "Bill." He further testified that upon the following day, "Bill" disappeared during lunch hour and refused to reveal where he had been. Subsequently that day, he testified that Brafman reprimanded him for talking and for "fooling around." Both Brafman and Leary testified that they observed Zsamba. roaming about and wandering away from his bench. This is cor- roborated,by the evidence of Zsamba's discharge slip which Brafman signed and on which there is the notation : "Laid off, roaming around." 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of evidence, it does not appear that Joseph Zsamba's lay-off or discharge was the result of union activity. The allegations of the complaint with respect to the discharge of Joseph Zsamba will be dismissed. Esther Locke. Esther Locke was discharged on January 20, 1937. She had joined the United at the first mass meeting of January 14, 1937. She became active, prior to her discharge, in recruiting mem- bership outside the plant during lunch hours. She kept application cards with her in the plant but did not distribute them there except when she signed up members in the ladies' room of the plant. Locke -also attended the mass meeting of the United on January 18, 1937. At about 2: 30 in the afternoon of January 19, 1937, Locke, in speak- ing to another employee in the ladies' room, stated that she was a member of the United. Sarah Martin, a supervisor or sub-super- visor in department 7, happened to be present at that time, and she overheard the conversation. She said: "Yes? Well, you want to keep it under your hat." Locke was a mica cutter in department 7. Catherine Heslin was the forelady in charge of that department. There is substantial agreement in the testimony of these two witnesses with respect to the circumstances surrounding the discharge. Heslin told Locke that the reasons for the discharge were decrease in' her average quantity of production and the fact that she was quarreling with another employee. Locke admitted that Heslin had reprimanded her at 5:30 in the afternoon of the day previous to the discharge for stirring up a personal quarrel with an employee named Troliam. Locke further testified that she rejected Heslin's suggestion to bring such matters to her, and that she asserted that she could fight her own battles. Heslin testified that Troliam had reported to her that she had been threatened, and that in the course of the morn- ing she heard loud talking in the ladies' room and upon investigation found Troliam and Locke and observed that Troliam was crying. This quarrel apparently did not concern union affairs since Locke testified it was the result of rumors about herself being spread by Troliam. Heslin testified that a third reason for the discharge was the poor quality of Locke's work. Locke's discharge slip signed by Heslin, also lists "Poor Work" as the reason for the discharge. Heslin testi- fied that she had spoken to Locke several times about the quality of her work. Although Locke denies having been criticized by Heslin with regard to her work, we find that Heslin's testimony in this regard, corroborated as it is by the stipulated testimony of Sarah Martin, and by the testimony of Leary based upon her own records, appears to be worthy of credence. We find that the reason for CONDENSER CORPORATION OF AMERICA 419 Locke's discharge was the poor quality of her work, her quarrel, and the 2-per cent decrease in the quantity of her production. Upon the basis of this evidence, it is clear that Esther Locke's discharge was not the result of union activity. The allegations of the complaint with respect to the discharge of Esther Locke will there- fore be dismissed. Ann Coley and Phyllis Fisk. Coley and Fisk were regularly employed as calibraters in department 9, known as the mica depart- ment. It is alleged that the respondents discriminatorily ordered them to undertake onerous tasks and duties for the purpose of dis- couraging them in their employment, thus compelling them to leave their-positions with the respondents on or about January 22, 1937. We do not believe that the evidence sustains these allegations. Coley and Fisk did quit work in the South Plainfield plant on January 22, 1937. Several days before January 22, 1937,'the volume of calibrating work decreased. Coley and Fisk were given other work in their department until January 21, 1937. On, January 21, 1937, they were transferred over their protest to soldering :%vork• in department 13. Soldering, particularly under the conditions existing in department 13, was exceedingly disagreeable work. After work- ing at soldering for part of January 22, 1937, Coley and Fisk requested retransfer to department 9. This 'request was refused because no work was available for them in department 9. Thereupon, they, quit work. 'During the week before Coley and Fisk quit, many other employees in department 9 were laid off because work was currently slack in that department. Coley and Fisk were given other work first in de- partment 9 and thereafter in department 13. Although they had been recruiting membership for the United since prior to January 14, 1937, we conclude, upon the basis of all the evidence, that this activity was not a reason for the transfers of either of these em- ployees. The allegations of the complaint with respect to Coley and Fisk will therefore be dismissed. Lucy Dell'Olio. Lucy Dell'Olio was discharged on January 19, 1937, the day following her election as secretary of the United. The information concerning her election to office was made public on the day of her discharge by the Plainfield Courier-News. She was not present at the first meeting of the checkers on December 17, 1936. She was, however, elected by the checkers to act as a member of the nucleus prior to her connection with the United. She joined the United January 15, 1937, 4 days prior to her discharge. Deutsch, assistant foreman of department 9, saw her as she was returning from the mass meeting of the United on the evening of January 14, 1937, in the company of Gladys Del Pappa, another employee. Ac- 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cording to Deutsch's own testimony he asked whether they had been to the union meeting and was answered by Del Pappa in the affirma- tive. Deutsch's remarks to these employees at that time are dis- cussed below in connection with the discharge of Del Pappa. On January 18, 1937, the following incident took place as described in the testimony of Dell'Olio : The day before I was discharged, why this Mr. Reddey,," called another girl and myself over to one of the tables and asked us if we were told we had to join the uni01152 in order to keep our jobs. So I told him that we were asked to join the union but we were not told we had to do so, so he told us we did not have to join the union to hold our jobs, so he said the company was very bitter about it and that they would fire anyone who would join the union, so when we told him they couldn't do that, he said, the company would find a good excuse to do that. At the mass meeting on the night of January 18, 1937, 1 day prior to her discharge, Dell'Olio was elected secretary of the United., The Plainfield Courier-News published her name and the fact of her elec- tion in all editions on January 19, 1937. The first edition was dis- tributed in South Plainfield between 3 and 4 o'clock in the afternoon. Dell'Olio was discharged at 5:30 on the same afternoon. At that time, Reddey told Dell'Olio to report to Leary. Dell'Olio testified as follows : ... she 53 was speaking to someone in there and I waited awhile, then she picked up this check from the desk and she asked me if I was waiting for it and I said I didn't know, so they handed me the check and asked me if I had trouble with the foreman, and I said no, not that I knew of, except that I had been reproved for a mistake I had made about 4:30, and she said she didn't know anything about it. She asked me for my button. She asked me to sign for it. She said she would have to find out what it was all about,, that she didn't know why I was being fired. She gave me no reason. We find that Dell'Olio's testimony accurately presents the circum- stances surrounding the discharge. Dell'Olio's job was to stamp various information on condensers and containers; she was the only employee who performed that type of work. On each order, there was a specification listed from which she would obtain the correct stamp. Tangney, foreman in charge 61 Hack Reddey , or Ready, was the assistant foreman of department 14 In which Dell'Olio worked. Tangney was the foreman in charge of this department. "The only union active in the plant on January 18, 1937, was the United. Is Leary. CONDENSER CORPORATION OF AMERICA 421 of the department in which Dell'Olio worked, testified that he contin- ually received complaints from customers and inspectors about incor- rect stamping. He testified that one incorrect stamping job, causing a delay of 5 or 6 hours necessary to rub off and replace the stamp, was the basis for his recommendation of dismissal. He made out a dis- charge slip stating the reason as "Inefficiency, too many errors." He signed his name and added in the rehire column the notation "No." Leary testified that Tangney showed her the misstamping job which allegedly caused the dismissal and explained that the error was made because Dell'Olio did not look up the specification to see that the number had been changed. Dell'Olio testified concerning this mis- stamping that she had been given a specification number, had looked for the proper stamp in the specification sheet in a book kept for that purpose, and had stamped the order accordingly. Ten minutes after handing in the stamped condensers, she was called to Tangney's 54 desk and told she had misstamped them. This occurred at 4:30 in the afternoon, approximately an hour after the publication of Dell'Olio's name in the Plainfield Courier-News as an officer of the United. Dell'Olio referred back to the specification book and dis- covered that another specification sheet indicating a different stamp had been slipped into the book under the sheet she had first used. There had never before been an instance where two sheets, one of which superseded the other, had been in the book together. No one, except foremen, places sheets in the specification book. We con- clude, upon the basis of Dell'O1io's testimony and all the remaining evidence concerning her union activities and discharge, that the mis- stamping of the order in question was induced by Tangney and Reddey in order to find an excuse for discharging her. Previous to the "error" which resulted in her discharge, Dell'Olio had never been criticized by her superiors, nor had she been disciplined for improper work. We find that she was not inefficient, and that her alleged inefficiency was not the reason for her discharge. The fact that Dell'Olio's discharge on January 19, 1937, followed so closely after she joined the United and had become an officer of that union, the threatening conversation with Reddey, the previous encounter with Deutsch on the night of the United mass meeting, and the circumstances surrounding her misstamping and discharge, con- sidered in connection with the campaign of the respondent Condenser against the United as evidenced by the numerous discriminatory dis- charges previous to January 19, 1937, all lead us to the conclusion that Dell'Olio was discharged on that date because she joined and assisted the United, and we so find. a, Misspelled Tangenni from time to time in the transcript. 283033-41-vol 22-28 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD By this discharge, the respondent Condenser discriminated in re- gard to hire and tenure of employment, thereby discouraging member- ship in the United, and interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. Gladys Del Pappa.55 Gladys Del Pappa was discharged on Janu- ary 21, 1937. She joined the United at the first mass meeting on Janu- ary 14, 1937, in Plainfield. She left the meeting in the company of Dell'Olio, and in a store four blocks distant she found Deutsch, the assistant foreman of department 9, in which she then worked. Del Pappa testified that when they entered the store, the following conversation ensued : [Deutsch asked,] "Oh, Gladys, have you been to the meeting?" and- I said, "Yes, Mr. Deutsch," and lie kept arguing with me he said it wouldn't do me any good . . . and he said, "Well, if you have your job you had better stay away, if you value your job you had better stay away from those meetings," and we kept talking and then, oh, I was about to leave and he ... said, "Oh, Gladys, do you know how to pray," and I said "Yes," and he says, "Well pray that no one saw you there," so we went home. Deutsch admitted that he asked whether these girls had been to the meeting of the United, and did not deny the expressed warnings attributed to him. He testified that he asked about their attendance at the meeting out of mere curiosity, and he claimed that he told no one of Del Pappa's attendance. The nature of the circumstances, the testimony of Deutsch and Del Pappa, and the subsequent events con- vince us that Del Pappa's version of the conversation accurately presents what happened. On January 15, 1937, the day following the encounter with Deutsch in the candy store, Del Pappa was transferred from her work as a foil separator in department 9 to department 12. The occasion for her transfer was the acquisition of an automatic machine which made Del Pappa's machine obsolete. Deutsch testified that she was stack- ing in department 9 for a week before her transfer, but that he desired the transfer because she did not know how to do the work. Although approximately 100 to 150 employees were transferred from department 9, only 10 were sent to work in department 12, and of these, only 2, including Del Pappa, were given soldering work to do. Del Pappa found that soldering was unpleasant work. She burned her hand, and smoke caused her face to break into a rash which has since left marks. She was therefore anxious to return to depart- i ' The name of this individual was spelled in the complaint as "Gladys Del Capa " It was amended to its present form during the hearing on motion of counsel tom the Board. CONDENSER CORPORATION OF AMERICA 423 went 9. On January 21, 1937, about a week after her transfer to department 12, she asked Leary for a transfer back to department 9. Leary referred her to Deutsch. Both Deutsch and Greenberg 6s in- dicated that they would take her back, and Del Pappa so reported to Leary. Leary balked and said she had not told Del Pappa to submit her name to Deutsch at that time. When Del Pappa ex- plained that it was Greenberg who was agreeable, Leary became enraged and swore : To hell with Mr. Greenberg. I will slap his damned face. Del Pappa then said she would rather be laid off until needed else- where than to return to work in department 12. Leary replied: I will give you a lay-off ... You are getting a good one .. . In an attempt to refute this testimony, Leary testified that Del Pappa heaped abuse upon her before the employees of department 12 charging that while others were being called back to department 9 she was being discriminated against. Leary testified that only stackers were being returned to department 9, and that Del Pappa was not a stacker . Leary testified Del Pappa refused to go back to work in department 12, and she therefore told her to leave. Leary also signed a discharge slip for Del Pappa listing as the reason for discharge, "Insolence, disobedience , refused to work," and listing with respect to rehiring the comment, "No." However, Leary did not attempt to deny that Del Pappa told her that Deutsch and Greenberg were willing to take her back to department 9. We therefore find unworthy of credence Deutsch's testimony that after a week's trial, Del Pappa did not know how to perform the stacking operation. The great majority of the employees of South Plainfield were local unskilled labor and were taught the various operations in the plant. Del Pappa's transfer to an extremely objectionable job on the day after she encountered Deutsch on her way from the mass meeting of the United , and Leary's refusal to return her to her previous posi- 'tiori although her foreman was willing to take her back along with a group of other stackers being reinstated, considered in connection with the campaign of the respondent Condenser against the United as evidenced by the numerous discriminatory discharges previous to January 21 , 1937, and the attempt to launch the Independent on that date or the day before, all lead us to the conclusion that Leary took advantage of slack work in the stacking department to relegate Del Pappa to an obnoxious and inferior job because she joined and as- sisted the United . Del Pappa might have accepted the discriminatory transfer or demotion and subsequently filed charges alleging that NGreenberg was the foreman in charge of department 9 He -eas Deutsch 's superior 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the employer was engaging in an unfair labor practice. It was equally justifiable for her to have refused to continue to perform the relatively obnoxious work to which she had been discriminatorily transferred and to have resigned. Thus her refusal to submit to an unfair labor practice under these circumstances cannot be con- sidered acts of insubordination and cannot justify her discharge.57 We therefore find that Gladys Del Pappa was discharged by the respondent Condenser on January 21, 1937, because she joined and assisted the United. By that discharge, the respondent Condenser has discriminated in regard to her hire and tenure of employment and the terms and conditions of her employment, thereby discourag- ing membership in the United, and has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. John Higgins. John Higgins was discharged on January 27, 1937. He joined the United in January 1937 prior to his discharge. When he returned from lunch on the afternoon of January 27, 1937, he saw Rose Kent,511 supervisor in his department, distributing application cards for the Independent. Higgins himself distributed about 15 United application cards before the end of that lunch1peridd:' Higgins testified with reference to Kent as follows : It was after I started giving out my cards, she said to me, "you better stop giving out these cards, you will get into trouble." I said, "you were giving out cards, weren't you ?" At quitting time at 5:30 that afternoon, Fidel, Higgins' foreman, told him that Leary wanted to see him. Higgins testified that Leary was at a loss to know why he was sent to her. Leary's secretary said that she had some final pay checks for Higgins. Leary told Higgins that he would have to see his foreman if he wanted an explanation for his discharge. Higgins worked as a tester to detect oil leaks in oil condensers. Fidel, his immediate supervisor, was the chief tester. Fidel, ex- plained to Higgins that there was some bad work of his that had been rejected by customers. Higgins testified that he had not done any bad work that afternoon and that he had not been criticized for bad work that afternoon. But it is clear upon the basis of the testi- mony of Fidel and Munn 69 that the unsatisfactory work which they assigned as the reason for the discharge was performed weeks and perhaps months prior to the discharge. Higgins was a, tester whose job "'Matter of Waggoner Relining Company , Inc, and IV T Wagponet E5tnte and Interno- tconal Association of Oil Field, Gas 1Vell and Refine) y Wo,teis of America . 6 N 1, R R 731 S' The name of this individual sometimes appeai s in the i e4_oi d as `Rump 69 Munn was the foreman in charge of Higgins ' department A CONDENSER CORPORATION OF AMERICA 425 was to inspect oil condensers and to reject those from which oil leaked. It was vital that the oil be hermetically sealed in the condensers. If Higgins allowed defective condensers to pass, they would be sold to customers in that condition. The customers would not discover the defect until the condensers were used in radio or telegraphic instruments long after Higgins' inspection. Munn testified that he had received a complaint from the Submarine Signal Company with respect to defective oil condensers. The Submarine Signal Company is one of 'the respondent Condenser's most important customers. Upon receiving the complaint from the Submarine Signal Com- pany, Munn immediately saw Fidel, the chief tester, and he also spoke to Bleich. Munn testified that he then inspected the final test line and the packing department and found further leaky units packed and about to be packed for the Submarine Signal Company. Munn tes- tified he showed some of the returned units and some of the defective units taken from the packing department to Higgins. He later signed a• discharge slip for Higgins stating as the reasons for dis- charge, "Allowed leaks thru final test," and under the rehire column, "No." This alleged reason for the discharge is supported by Leary's records. Fidel testified that he had noticed that Higgins had passed leaky condensers once or twice previous to the time of his discharge and that Fidel had warned him of the gravity of this defect. Fidel testified that he had not thought Higgins' carelessness sufficient cause for discharge until Bleich spoke to him of the Submarine Signal Company complaint and suggested the discharge. During the period in question, Higgins was the sole tester for leaks in oil condensers. The test for oil leaks was of such a nature that no defective condensers could have been approved for shipment if Higgins had clone his job properly. We find that the testimony of Munn, Fidel, and Leary with re- spect to the reason for Higgins' discharge is in accordance with the facts. At the beginning of April 1937, Higgins approached Diana for .the purpose of reinstatement. Diana demanded that Higgins agree to join the Brotherhood if he was reinstated and Higgins agreed that he would. Diana sent him to Leary. Leary offered Higgins reinstatement to a different testing position, which Higgins declined on the ground of unsatisfactory hours and working conditions. The wage for this position was lower than that he had formerly been earning. Leary told Higgins that that was the best she could do at the time. Higgins testified that when he again asked Leary for a job, she said she had nothing for him. Leary testified that he never returned after he declined reinstatement. In any case, since Higgins was willing to submit to Diana's demand, it is clear that he was not refused reinstatement to his former or an equivalent position on the 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ground that he belonged to the United or that he refused to join the Brotherhood. We find that John Higgins' discharge was not the result of union activity. The allegations of the complaint with respect to the dis- charge of John Higgins will therefore be dismissed. Katherine Kane '60 Augusta Kane, and Beatrice Mundy. Kathe- rine Kane, Augusta Kane, and Beatrice Mundy were laid off on February 1, 1937, and have not since been recalled to work. Katherine Kane joined the United on January 18, 1937. Sometime within the next week, she persuaded Mundy to apply for member- ship. Augusta Kane joined the United on January 14, 1937, at its first mass meeting. She and Katherine Kane are sisters. On the afternoon of Friday, January 29, 1937, Katherine Kane helped to distribute copies of the People's Press, a newspaper described. on, its masthead as the official organ of the United, on the sidewalk in front of the plant of the respondent Condenser. She was arrested by the South Plainfield police for distributing the papers. Augusta Kane and Mundy were employed as stackers and Katherine Kane as a clincher, all situated in department 9. At the completion of the speech made by Diana in behalf of the Independent on Feb- ruary 1, 1937, in department 9, Katherine Kane was handed an In- dependent card by Rose Rosella, her forelady. When Rosella re- turned a half hour after Diana's speech to collect the cards, Katherine Kane had not signed hers. Katherine Kane testified, and we find, as follows : I told her I didn't have any intentions of signing and she asked me why and I told her that in comparison with the outside union"" the Independent Union had nothing for us,. and she asked me why I thought so and I said, "In my estimation the inside union is more or less a union for the bosses and not for the workers." That is all that was said. Rosella returned at about 4: 30 that afternoon and told Katherine Kane that Greenberg, the head foreman, wanted to see her at his desk. Mundy and Augusta Kane, who worked side by side, encountered on February 1, 1937, experiences similar to those related by Katherine Kane. Cards were distributed in the morning by three persons close to the management, viz, Deutsch, Henrietta Schaeffer,62 and one "Gertie," supervisor of Mundy and Augusta Kane. On the afternoon ° The third amended complaint names Katherine Lane ; on motion of counsel for the lioai (1, the name was amended to read "Katherine Kane." 61 The United 11 Henrietta Schaeffer was Greenberg's secretary. lJ CONDENSER CORPORATION OF AMERICA 427 of February 1, 1937, Deutsch, Schaeffer, and Gertie came to their table. Augusta Kane testified : Well, about 2: 30 on February 1 he [Deutsch] came around to me and he asked me where my card was. I said, "Well, I am not handing in my card, I am not signing this card, at all." He said, "Why aren't you?" I said, "First of all, what are these cards for?" He said, "Well, it's going to be an inside union." Q. What else did Mr. Deutsch say? A. Mr. Deutsch said to me, he said-it was going to be an inside union and I said all right and he said that this inside union, well, he said it was going to give us recreation such as ball games and dances. And I said, "We are not going to be foolish and sign up just for recreation." I said, "We are in- terested in wages." I said that the C. I. O. guaranteed us more wages, so he looked at me and he said, "Oh, you're one of them? " I didn't know what he meant by that and this Miss Schaeffer, she said, well she said, "If this C. I. O. gets in here" she said, "We are going to pack up and get out of town." She said, "That's what we did in New York." Q. Just a minute. Was Miss Schaeffer standing alongside of Mr. Deutsch when the statement was made? A. Yes, there were three of us, Mr. Deutsch, Miss Schaeffer, and Gertie." Although Deutsch was beside Schaeffer, he remained silent thus giving the impression that these were his sentiments as well. We believe that Augusta Kane's testimony, just quoted, accurately pre- sents the facts and that Deutsch's version of the same conversation is iriacctirate. - Mundy also openly refused to sign her card although urged to do so by Gertie. Like Katherine Kane, Augusta Kane and Beatrice Mundy were summoned to Greenberg's office. Ann Jacobs and Helen Mack were also called in. Mundy testified : ... we went up to his desk and Mr. Greenberg told us that we were being laid off because there wasn't any work and I didn't think it could be possible to lay us off when we had been working until 5: 30 the past week and usually when we were laid off, it was for no work, and we would get off at 3: 30 and there seemed to be plenty of work and I asked him, Mr. Greenberg, if the reason that we were laid off was because we didn't sign these cards and he said "No, it had nothing to do with it." And I said, "Well, then, how come, we five girls didn't sign and we are laid off," and the ones that did sign why, they were still kept on 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and he didn't answer me, so he said, "Go into Mrs. Leary's office and return your button and you will have your checks up to- date of the same day, February 1st, all made out." Mundy's testimony with respect to the circumstance of their dis- charge by Greenberg is substantially corroborated by Katherine and Augusta Kane, and we find it accurately presents the facts. Although Leary informed them that they were merely being laid off, it is clear that these three employees were permanently discharged rather than temporarily laid off on February 1, 1937, because their employees' identification buttons were taken from them by Leary, and the references which they had submitted upon being employed were returned to them. Although they were told they would be sent for when work should become available, they have never been recalled to work. The pay orders of the Kanes and Mundy, signed by Deutsch, all listed "Slack Period" or "no work" as the reason for the discharges. Leary advanced the same reason. The pay orders also noted that before these employees could be rehired, the person hiring them was to "See Walter." 88 It is not clear whether it was necessary to reduce the staff of de- partment 9 on February 1, 1937, particularly with respect to stackers and clinchers. Deutsch was asked, assuming that the reduction was necessary be- cause of lack of sufficient work, the reason for selecting the Kaiies and Mundy from the rest of the employees for dismissal: Q. (By Mr. MASLOW) Assume for a moment they were all laid off for lack of work, I am asking you now how did you select them; did you select them for inefficiency or for bad conduct? A. Bad conduct. Q. Was Augusta Kane selected for inefficiency or bad conduct? A. Bad, bad conduct. Q. Katherine Kane? A. The same reason. Q. Katherine Fedoruk? 84 A. The same reason. Q. All those four 61, were selected for bad conduct? A. That's right. 11 Walter Deutsch. e1 The name of this individual is incorrectly spelled "Feodorik" in the third amended complaint There is no allegation in the complaint that her dismissal on February 1, 1937, was because of her union activities. 0 Ann Jacobs had previously been associated with this group. There is no allegation in the third amended complaint that her dismissal on February 1, 1937 , was because of her union activities. I CONDENSER CORPORATION OF AMERICA 429 Q. How about Beatrice Mundy? A. She was amongst those five or six girls laid off. Q. Also selected because of bad conduct? A. Yes, the very same reason. Deutsch explained that their bad conduct consisted of talking too loudly and laughing during working hours. He admitted that the other girls also talked, but asserted that these girls "always started the talking." He testified that he had warned them 150 times and practically every day. He further testified that although this -bad conduct might not interfere with speed, it lowered the quality of the output. In view of the refusals of the Kanes and Mundy to sign the Inde- pendent application cards at the request of supervisory employees, the nature of the remarks and threats made by the supervisory em- ployees when the Kanes and Mundy stood firm in their refusals, Katherine Kane's arrest for distributing the People's Press in front of the plant, and the circumstances surrounding their discharges, considered in connection with the campaign then being waged by the respondent Condenser against the United and in behalf of the Inde- pendent, we are convinced that the reason for selecting the Kanes and Mundy for discharge was not "bad conduct" but rather the forthright and open refusal by these three employees to submit to the demands of the supervisory employees that they join the Indepen- dent, and the fact that they had joined and preferred to continue to support the United. With respect only to the failure of the respondent Condenser to reinstate Mundy, Leary testified that although Mundy was laid off because-there was no work,* she never subsequently recalled her be- cause she had a weak heart as indicated by the record of her physical examination made at the time of her employment in October 1936. We cannot believe Leary's testimony on this point because Mundy was allowed to continue to work for a number of months after Leary had knowledge of her heart condition. Moreover, Leary, in the follow- ing testimony, virtually admitted that Mundy's condition need not prevent her from working : A. Well, systolic and mytrolic radiation means that there is an organic condition in your heart. Q. That condition, you say, is such that a person should not work? A. No, I don't say that, I say that it is such that I did not wish to recall her. The record is bare of evidence with respect to why neither of the Kanes was subsequently recalled to work despite the fact that the 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pay roll for their department climbed sharply at various times during and after April 1937. We therefore find that Katherine Kane, Augusta Kane, and Beat- rice Mundy were discharged by the respondent Condenser on Febru- ary 1, 1937, because they refused to join and assist the Independent, and because they joined and assisted the United . By these dis- charges, the respondent Condenser discriminated in regard to hire and tenure of employment , thereby encouraging membership in the Independent, and discouraging membership in the United , and inter- fered with, restrained , and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. Marion Panzarella. Marion Panzarella was discharged on Febru- ary 1, 1937 . He joined the United prior to January 29, 1937, but his union activities were confined to attendance at union meetings. On Friday, January 29 , 1937, without consulting the United, an employee named Chliecthen canvassed the solderers, of which group Panzarella was a member , and was assured by the men that they desired to have him present their demand for a raise of 5 cents an hour to Somers, their foreman. Somers promised to see Bleich, production superintendent , that night and let them know his answer on Monday morning, February 1, 1937. Somers was unable to see Bleich that night, and when Panzarella approached him on Monday morning at 8 o'clock, he promised to see Bleich in the course of the day. By agreement among themselves, the solderers then checked in and immediately thereafter refused to work. Somers told Pan- zarella that they were checked in and therefore had to work. Pan- zarella said they would refuse to work until they received an answer. Somers then called Bleich and told him what had happened. Bleich took the solderers , approximately 14 in number , into a stockroom adjoining the department in which they worked, and asked for their version of the difficulty . Panzarella, speaking for the group, an- swered that they would not work until they received the increased wage. Bleich then told the men that they were foolish in their attitude, that they ought to go back to work, and that at the end of the day's work he would be glad to sit in with them and try to iron out any difficulties . The solderers decided to resume work. After the noon hour, they returned to their benches and again refused to work. Upon inquiry , Somers was informed that the answer to their demands must be forthcoming immediately . Somers called Bleich again. Bleich ordered the checkers to check out all the men who refused to work. Both Bleich and Somers testified that the entire group including Panzarella , were discharged because of their refusal to work. This is also the reason noted on Panzarella's discharge slip. CONDENSER CORPORATION OF AMERICA 431 In their briefs docketed February 1, 1940, counsel for both respond- ents contend that Panzarella was "discharged" for engaging in an unlawful sit-down strike. The record plainly shows that there was never a refusal to leave the premises of the respondents upon request to do so by any representative of the respondents. As long as Panzarella refused to work, the respondents were free to put a stop to his compensation and to replace him in the same manner that any striking employees may be replaced during the period when they are on strike. However, discriminatory measures may not be taken against an employee because he has participated in a concerted demand with other employees to better working con- ditions or for other mutual aid and protection. Admittedly, Pan- zarella was discharged, not replaced, at the very outset of his refusal to work after the noon hour on February 1, 1937. We therefore find that Marion Panzarella was discharged because he participated in the concerted refusal by the solderers to work until their wage rate should have been increased. By discharging Panzarella because he participated in concerted activity for the purpose of collective bargaining and other mutual aid and protection, the respondents, and each of them, interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed by Section 7 of the Act.66 In addition, a discharge for that reason discourages concerted activity for the purpose of collective bargaining, and has the effect of discouraging the forma- tion of and membership in a labor organization, which is the cus- tomary instrument utilized by employees to achieve collective bargaining.61 Frank La Vecchia. Frank La Vecchia was discharged on March 31, 1937. He joined the United prior to February 1, 1937. He sub- sequently joined the Independent and then the Brotherhood, in each case at the solicitation of a supervisory employee. Nevertheless, he continued his active interest in the United and his attendance at the United meetings. Prior to March 31, 1937, La Vecchia, cSimon,68 and- De Filippo 68 consulted the president of the United local con- cerning a strike proposed to be called in protest against discharges of members of the United. During lunch hour on March 31, 1937, La Vecchia, Simon, and De Filippo decided that the strike should be called that afternoon. They spread word of the strike among the United sympathizers in departments 15 and 16. At 2 o'clock that afternoon, the same three men ceased work and walked about the 60 Matter of Indianapolis Glove Company and Amalgamated Clothing Workers of Amer- sea, Local No 1y5, 5 N L R B. 231 67 Matter of Stehli and Co., Inc. and Textile Workers Union of Lancaster, Pennsylvania and Vicinity , Local #133, 11 N. L R B 1397 ' Two other employee members of the United 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD two departments telling the other United sympathizers to quit also. When they returned to their places, Avis, foreman in department-15, called them to him. They explained that they were conducting a protest strike and its purpose. Production was halted, in, bath de partments for approximately 10 minutes. At the end of that time, McCarthy, the chief of police of the Borough of South Plainfield, arrived in the company of another policeman and arrested the three leaders and led them into an alleyway on the plant property. The rest of the employees resumed work as the leaders were led away. La Vecchia, Simon, and De Filippo were held in the alley by the police until Beyer e° arrived about 5 minutes later. We find that the following testimony of La Vecchia accurately presents the facts : Q. (By Mr. MASLOW.) What did Police Chief McCarthy say to Mr. Beyers? i0 A. Do you want these boys to work or don't you? Q. What did Mr. Beyers 70 say? A. Mr. Beyers 70 says, the boys don't want to work. We said, "no, we want to work." He said, "Well I don't want you to work, you are fired." Beyer then told McCarthy to take the men to Leary's office. There their employees' identification buttons were taken and they were paid their final wages. Diana testified that he arrived at the plant after the men had been taken to Leary's office, and that when they told him what they had done, he notified Leary that they were suspended from the Brother- hood and therefore subject to discharge under the closed- shop con- tract of February 19, 1937. Leary was positive, nevertheless, that she was not notified of any suspension and that La Vecchia °was discharged for attempting to start a "sit-down" strike. We accept Leary's version of the reason for the discharge in so far as she asserts that La Vecchia was not discharged because of his suspension from the Brotherhood. It should be noted, however, that the protest strike involved no element of property damage or property seizure. There was never a refusal to leave the premises of the respondents upon request to do so by any representative of the respondents. The employees merely participated in a peaceful stoppage of work while in the plant.71 Upon the basis of the evidence, it is plain that La Vecchia was discharged for his leadership in the strike called to protest against the discriminatory discharges prior to and including March 30, 19 Beyer is the secretary and treasurer of the respondent Cornell 70 Beyer. 71Matter of Indianapolss Glove Company and Amalgamated Clothing Workers of Ame;- sea, Local No 145, 5 N. L R B. 231, 236. CONDENSER CORPORATION OF AMERICA 433 1937.72 His conversation with Beyer indicates that La Vecchia did not choose to terminate his employment. With the exception of the leaders, none of the striking employees were discharged , and in fact they all resumed their work. We can only conclude that La Vecchia was discharged, not because the strike which he attempted to start was allegedly to be conducted in an unlawful manner, but because he was a leader of and participant in concerted activity. We therefore find that Frank La Vecchia was discharged by the respondents on March 31 , 1937, because he joined and assisted the United and because he engaged in concerted activities for mutual aid and protection . By discharging La Vecchia because he partici- pated in concerted activity for the purposes of collective bargaining and other mutual aid and protection, the respondents interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed by Section 7 of the Act.73 By discharging La Vecchia because he joined and assisted the United , the respondents, and each of them, discriminated in regard to his hire and tenure of employ- ment and the terms and conditions of his employment, thereby dis- couraging membership in the United, and interfered with, restrained, and coerced their employees in the exercise of rights guaranteed in Section 7 of the Act. Ann Mae Thee-ney. Therney was laid off on March 30, 1937. Before reinstatement, and on April 7, 1937 , she was permanently discharged from the employ of the respondent Condenser. Sarah Martin , supervisor in charge of the presses, was her immediate superior, and Catherine Heslin was the head forelady in charge of the entire department. Therney joined the United during January 1937. From the time she joined , she participated very actively in its affairs . About Feb- ruary 8, 1937, she was elected to the executive board of the United. Zieborak was also a member of that board . She distributed circulars, solicitedin_embers, and obtained signatures for application cards both in the ladies' room of the plant and at her press. ' She also attended all mass meetings of the United from January 14 through April 6, 1937. After February 15, 1937 , Martin requested Therney to sign a Brotherhood application card. Therney signed the card and remained a member of both labor organizations until the time of her discharge. On one occasion , Martin approached Therney at her foot press to ask whether she had attended one of the United mass meetings. Therney replied that it was none of her business . Martin then said, 72 The discriminatory dhschaiges of several membeis of the United on March 18 and 30 1'134, because of their suspension from the Brotherhood, and discussed below in Section III, G, 2 "See footnote 40, above. 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "If you don't stop attending these meetings, you'll be fired." Not- withstanding this threat, Therney attended a meeting held on the night of March 29, 1937, at the Hubbard School in Plainfield, the night before her lay-off and a little more than a week prior to her discharge. On March 30, 1937, Martin informed Therney that the head forelady, Heslin, wished to speak with her before Therney left for home. Heslin told Therney that she was being laid off. Therney asked whether this meant that she was fired. Heslin replied that she did not know. A pay order or discharge slip for Therney, signed "C. Heslin," lists a dismissal on March 30, 1937, and states the reason as "Slow," mean- ing that there was not enough work to warrant her employment. However, a graph introduced by the respondent Condenser to show the fluctuations in employment as they affected other employees, indi- cates that on March 30, 1937, the pay roll of department 9 was increasing and that thereafter the upward trend continued more sharply during the entire month of April 1937. Department 7, in which Therney worked, supplied the materials for department 9. After her lay-off, she attended the mass meeting conducted by the United at the Saengerbund Hall in Plainfield on April 6, 1937: On April 7, 1937, she was discharged, and another pay order signed "C. Heslin" was made out for her stating : "Do not recall, making fuss outside." Leary testified that "do not recall . . ." is an instruction not to rehire the individual involved. After her lay-off on March 30, 1937, Therney was never recalled to work. Heslin testified that the reason for the discharge of April 7, 1937, was in conformity with her notation that Therney had been "making fuss outside." Heslin explained that during the few days of Therney's lay-off, her press was used for several hours by Mary Lane, another production employee, in order to bring up Therney's productions. Heslin testified: Mary Lane said that Anna Mae Therney 71 happened to be at her house the'night before. I said "that is just fine, have Anna Mae come in." She said, "Anna Mae Therney thinks," well, just the words that Mary Lane used was, "that you have a hell of a nerve to have anybody else working on her press.'' I said, "if that's the case then I don't need Anna Mae Therney." Q. Is that why you discharged her? A. That's the reason I discharged her. Heslin stated that she immediately reported Lane's remarks to Leary, and that Leary agreed that this was sufficient ground for Therney's discharge. This is corroborated by Leary, and it was 74 Ann Mae Therney. CONDENSER CORPORATION OF AMERICA 435 stipulated that Heslin would also have been corroborated by Martin if she had been called to testify. This testimony does not appear plausible. The records of the personnel department and of the pay- roll department of the respondent Condenser, indicate that Mary Lane had left its employ as of April 2, 1937, fully 5 days in advance of the date of Therney's discharge. Heslin was unable to make a satisfactory explanation when confronted with the discrepancy : Q. Now, can you explain why the records show that Many Lane was discharged on April 2 and Anna Mae Therney for the second time on April 7? A. No. Q. Mary Lane was not working at the time Anna Mae Therney was discharged? A. No. Q. Mary Lane was not working at the time Anna Mae Therney was discharged? A. The date is wrong there some place. These are the records of Mrs. Leary? A. There is something wrong there. Q. That's right, "making fuss outside" and it is signed C. Heflin.75 A. That's right, but I don't know the date, maybe it was, I can't explain that one very well. On redirect examination by counsel for the respondent Condenser, this witness attempted an explanation by venturing that she "may not have made out the pay order that day." It seems improbable that Heslin would immediately consult Leary about Therney's alleged "fuss," and then delay at least 5 days before making out the pay order. Within approximately 2 weeks of her discharge, Therney twice visited the Brotherhood headquarters to obtain reinstatement through the efforts of Diana. On the second occasion, Diana told Therney he did not know why she had been laid off but that she had been discharged for attending the meetings of the United and for being in the company of persons associated with the "C. I. 0." Therney was not suspended from membership in the Brotherhood. We are satisfied that the respondents knew Therney's official posi- tion in the United and her activities in its behalf prior to the con- tract of February 19, 1937; that they learned from Diana, or another 11 Heslin. 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD source, of her continued support of the United and particularly of her attendance at its mass meetings on March 29 and April 6, 1937; and that for these activities the respondents laid her off on March 30, 1937, and discharged her on April 7, 1937. We therefore find that Ann Mae Therney was laid off and dis- charged by the respondents because she joined and assisted the United. By the lay-off and the discharge , the respondents, and each of them, discriminated in regard to her hire and tenure of employ- ment, thereby discouraging membership in the United , and inter- fered with , restrained , and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. Peggy TVatt. Watt entered the employ of the respondent Con- denser on November 11, 1936, as a production employee in depart- ment 8. During the course of her employment , she was transferred to a position as a winder in department 16. She left the employ of the respondent Condenser on March 23, 1937, and was finally discharged on April 2, 1937, without having been again reinstated. In the third amended complaint, it is alleged that she was discrimi- natorily discharged on or about March 30, 1937. Her pay order or discharge slip is dated April 2, 1937. It contains the notation "Dis- satisfied with job, quit" and is signed "J . Brafman." No remarks are listed which might have impeded her reinstatement. Leary testi- fied that her private records indicate that: "She, came to me and asked me for a transfer . She did not like the work and I told her as soon as I possibly could find an opening I would transfer her and she did not give me an opportunity . She left of her own accord." Due to the confused nature of Watt's testimony , it is difficult to obtain a clear picture of her version of the circumstances surround- ing the severance of her employment. She testified in substance that she was laid off on Tuesday, March 23, 1937 ; that she was told by Leary to apply for work on the next day; that on the next day Leary informed her that she did not know when there would be work for her ; that thereafter she joined the United for the first time; that subsequently , and prior to her final discharge, she sold copies of People's Press, organ of the United, in front of the plant; that Leary purchased two copies of this paper from her and told her to report on the next day for her pay ; that on the next day she was discharged by Leary who demanded the return of her employee's identification button upon the receipt of her pay. Watt testified that she did not return to the plant subsequent to the time she received her last pay check, and apparently she had made no further effort to obtain reinstatement. Leary admitted seeing Watt and others selling copies of People's Press outside of the plant, but she asserted that she had no conver- CONDENSER CORPORATION OF AMERICA 437 sation with Watt at that time. She denied ordering Watt to present herself at the plant for her pay. Watt's testimony is somewhat confused . Leary's testimony with respect to Watt seems straightforward and plausible , and it is in accordance with the reason for the discharge assigned on the pay order. We are persuaded that Leary's testimony is in accordance with the facts , and we do not credit Watt's testimony in so far as it is inconsistent with Leary's testimony. Upon the basis of all the evidence , it is not clear that Watt was discharged for union activity. The allegations of the complaint with respect to the discharge of Watt will therefore be dismissed. Cecilia Dowling. Cecilia Dowling was laid off or discharged from the employ of the respondent Condenser on March 30 or 31, 1937. She had been employed as a solderer in department 8 since October 21, 1936, a time not long after the respondent Condenser commenced operations in South Plainfield. Cecilia Dowling is a sister of Lawrence Dowling, who, as we have indicated above, was discharged on December 18, 1936, for his par- ticipation in the concerted activity of the checkers. Shortly after his discharge, Mrs. Elizabeth Burch, a supervisor in department 8, informed Cecilia Dowling that she, Burch, would soon relinquish her position with the respondent Condenser, and that before leaving she would like to inform Dowling that Harold Brafman, head fore- man of department 8, had indicated to her that Dowling was on his lay-off list. Dowling testified with regard to Burch's conversation with her as follows : . . . Mrs. Burch wanted to know the reasons why he was laying me, off . . . And Mr. Brafman said because of my brother's activity in the union Q. Which brother was that? A. Lawrence ; he was a checker. Q. Mrs. Burch said that because of Lawrence A. No; she didn't mention the name. A. And Mrs. Burch said that I had done satisfactory work and that I was the only one at the time that soldered coppers on blocks and he had no reason -whatsoever to lay me off, just because my brother was active in the union , he had no reason to do it and it was no reflection on me. Q. What else did Mrs. Burch tell you? A. Well, she talked it over with Mr. Brafman and Mr. Braf- man said that lie would reconsider my case and I was allowed to stay on until March 30 or 31 when I was laid off. 283033-41-vol 22 29 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Harold Brafman denied his part in these conversations with Mrs. Burch. Since it appears improbable that Dowling constructed the reported conversation out of whole cloth, and since her testimony as a whole appears to us to be reliable, we credit the statements attributed to Burch in the testimony quoted above. Despite this warning, Dowling joined the United early in January 1937. In February 1937, she signed an application card for member- ship in the Brotherhood . She nevertheless retained an active interest in the United and attended its mass meeting at the Hubbard School in Plainfield on March 29 , 1937. On March 30 or 31 , 1937, she was laid off. On the afternoon of her lay-off, Dowling was ordered by her super- visor to report to Leary. Leary explained to her that she was on the lay-off list because of the lack of work and that she would be informed when there was further work. When Dowling returned for her pay on the subsequent Friday, April 2, 1937, she was required by a woman in Leary's office to surrender her employee's identification button although she remonstrated that she had not been discharged. The woman assured her that she was not discharged and that she would receive a new button when she returned to work. Leary also maintains that she has never been discharged . Nevertheless from March 1937 through the hearing in October 1937 Dowling never received word to report back to work. Cecilia Dowling's pay order, dated April 2, 1937, stated: "Laid off, slow season." With reference to rehiring , there appeared the instruction "No." It was signed "H. Brafman." Harold Brafman was the foreman in charge of department 8 in which Dowling was employed. He testified that Dowling was laid off by him in the beginning of April 1937. He stated : Well, just around that time we slacked up a little in work and we had to cut out a few people in each line. She being one, while being a pretty good worker, she was not as fast as some of the other girls, so I just had to lay her off. Brafman admitted that Dowling was the only employee in her line laid off for lack of work. His choice was the more remarkable because of Dowling's seniority, she having been employed shortly after the respondents commenced production in South Plainfield. We encounter great difficulty in finding an innocent explanation for Brafman's notation on Dowling 's pay order or discharge slip that she should not be rehired . If this were in truth a lay-off, due to^ the absence of work, of a satisfactory employee, such a proscription I CONDENSER CORPORATION OF AMERICA 439 would be inappropriate. Brafman himself was unable to advance at the hearing a reasonable explanation for his ban on reinstatement: Q. There was nothing wrong with her work, was there? A. No. Q. You can't explain that, can you? A. The only thing is she was a little slower than the other girls at her work. Leary testified that Dowling had never been discharged and that she has not been reinstated because the operation upon which she was working has never been resumed. No attempt was made by Leary to explain Brafman's recorded instruction not to rehire, or to indi- cate how Dowling could be reinstated, in the face of Brafman's ban,, if her operation had been resumed. Leary's testimony seems sub- stantially inconsistent not only with Brafman's recorded instruction not to rehire, but with much of the rest of Brafman's testimony. If we should accept Leary's reason for the failure to recall Dowling to her former operation, it would still appear strange that Dowling was not offered work on other operations. Extensive training and experience are not generally necessary for employment on the various operations in the plant as indicated by the rapidity with which the respondent Condenser initiated production in South Plainfield with a preponderance of unskilled local labor. Moreover, Bleich, treasurer and production superintendent of the respondent Condenser, testi- fied that it was the policy of this respondent to transfer employees in preference to laying them off. Employment must have been available from time to time as openings occurred by reason of normal labor turn-over. Some further light is thrown upon Dowling's discharge by Frank Diana. Diana testified that his records revealed that Cecilia Dowl- ing was suspended from the Brotherhood on April 1, 1937. Accord- ing to a notation appearing on the Brotherhood records for Cecilia Dowling, she had been "talking C. I. O. to I. B. E. W. men and going to meeting." Diana further recalled that she had been passing out notices of meetings of the United. In the event of a suspension, Diana's invariable practice, except in the case of Dowling, was to give oral notification of that fact to Leary as a basis for discharge. Both Diana and Leary testified that no notice of Dowling's suspen- sion had been communicated, and Leary stated that she had been unaware of the action of the Brotherhood with respect to Dowling. When Diana attempted to find Dowling for the purpose of question- ing her concerning her activities in behalf of the United, he found that she "was not in the plant and never did come back." It is not 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD likely that Diana would have allowed an opportunity to remain for the respondents to recall Dowling to work. We therefore interpret his testimony to mean that he discovered , upon inquiry as to Dowl- ing's status, that she had been discharged by the respondents and that they intended never to reinstate her. This is an additional indication that Dowling 's so-called lay-off was in fact a camouflaged discharge and for that reason suspicious. We are convinced that the alleged slack period in department 8 was of short duration if it existed at all, and that it was the occasion rather than the cause for Cecilia Dowhng's discharge . After the discriminatory discharges of Dowling's brother for concerted activ- ities in December 1936, the respondent Condenser withheld discrimi- natory action against her only until it was discovered that despite the invalid closed-shop agreement in favor of the Brotherhood, the United was carrying on its activities against heavy odds with re- newed vigor, and that Cecilia Dowling was active in its behalf by publicizing and attending its mass meeting of March 29, 1937. We therefore find that Cecilia Dowling was discharged by the re- spondent Condenser because she joined and assisted the United. By that discharge, the respondent Condenser discriminated in regard to her hire and tenure of employment, thereby discouraging member- ship in the United, and interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. Mary Lane. Mary Lane was discharged on April 2, 1937. She joined the United in January 1937 . On March 29, 1937, she attended the mass meeting of the United which was held at the Hubbard School . Catherine Heslin, the forelady in charge of Lane's depart- ment, spoke to her on the afternoon of March 29 , 1937, as indicated in the following testimony of Lane : The night that I went to the meeting, before I went home, she told me that I belonged to the C. I. O. and I told her "No!"", and she said "Mary," she said "watch your job" she said "You can see those other girls losing their jobs." Heslin denied this conversation, and it was stipulated that Sarah Martin, a supervisor in the same department , would testify to the same effect, but we find Lane's testimony to be worthy of credence, and we are mindful of the other anti -union activities in which we have found Heslin and Martin involved . Despite Heslin's warning, Lane attended the United meeting of March 29, 1937 . On March 30, 1937, Heslin called Lane to her desk and asked whether Lane was 76 Despite this statement Lane was in fact a member of the United at the time. CONDENSER CORPORATION OF AMERICA 441 one of those who had attended the meeting the night before. Lane an- swered in the affirmative. Then, according to Lane, Heslin said : You girls make me sick, . . . You are supposed to know where your bread and butter is earned, you ought to know by this time, you see one after another going out of here . . . Go back to your press. Heslin did not deny this conversation. We find that Lane's testi- mony in this respect accurately presents the facts. The conversation took place on Tuesday, March 30, 1937. Lane testified that she was discharged on Friday, April 2, 1937, under the following circum- stances : A. Well, Kitty 77 told Sarah Martin to tell me to speed up my work. Q. (By Mr. ROSENBLUM.) How do you know that? A. Because Sarah came to me, told me, she got the message to me. Q. Sarah carne over and told you to speed up your work on Friday? A. Yes. Q. Well, did you have any argument with her about it then? A. Well, I just told Sarah, I don't know what she means by speeding up, that I was a way head of my work. Q. Well, was that all? A. Kitty came over and jumped all over me and said she would lay me off. Q. What do you mean by saying she "jumped all over" you, did she have an argument with you? A. She was chewing at me. Q. She was what? A. Fussing at me. Q. What do you mean she was fussing with you? A.... she fussed about going to these C. I. 0. meetings. Q. You say she fussed at you and she scolded you and she jumped all over you, -what else did she do, what did she say which leads you to describe those things in that fashion? A. She told me she was fed up with me. She told me what I done things against the place and I asked her why, what did I do against the place and she said "Well, you went to those meetings." " Catherine Heslin. 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. And by "those meetings" you understood her to mean C. I. O. meetings, is that right? A. Yes. Q. What time of the day did she tell you to go to Mrs. Leary? A. 11 o'clock in the morning. Q. On Friday? A. Yes. Heslin's version of the argument described above, and it was stipu- lated that Martin would corroborate her testimony, was that first Martin and then Heslin criticised Lane because "she was going up and down with her work, and one day she was good and the next day she was bad, . . ." Heslin testified that when she thus criti- cised Lane, Lane accused her of favoritism, raised her voice, pounded on the table, and threatened to report her. Heslin further testified : I told her to go ahead, I did not want her, so she went out and that was the last I saw of the girl ... Heslin testified that as soon as Lane left the floor, she made out a discharge slip and sent it to Leary. The slip lists the reason for termination of employment as "Quit." Heslin testified that Lane voluntarily quit. She admitted, however, that she told her superiors that Lane should not be rehired. She testified that her reason for this action was because Lane walked off the floor and quit work. Leary also testified that Lane quit. If there were any heated words at the time of the discharge, we believe that Heslin delivered a share of them without prior provocation other than Lane's exception to the criticism leveled at her. It is at least clear that Lane was turn- ing out 45,000 to 50,000 pieces of work per hour when her standard of efficiency was set at 32,000 pieces per hour. We do not under- stand the basis of Heslin's criticism, and we believe that there was no legitimate ground for such criticism. Upon all the evidence, we conclude that in the manner asserted by Lane, Heslin either discharged Lane or deliberately picked a quar- rel with her in order to cause her to leave believing that she had been discharged. We find that Heslin desired Lane's discharge and barred her reinstatement because of Lane's attendance at the meeting of the United on March 29, 1937, and because of her previous mem- bership in and assistance of the United. We therefore find that Mary Lane was discharged by the respond- ents' on April 2, 1937, because, she joined, and assisted the United. By that discharge, the respondents, and each of them,' discriminated in regard to her hire and tenure of employment and the terms and conditions of her employment, thereby discouraging membership in CONDENSER CORPORATION OF AMERICA 443 the United, and interfered with, restrained, and coerced their em- ployees in the exercise of rights guaranteed in Section 7 of the Act. Margaret Gibbs. Gibbs was discharged on or shortly before April 2, 1937. In the third amended complaint, it is alleged that this dis- charge occurred on or about March 28, 1937. Gibbs joined the United in January 1937. Early in February 1937, she signed an Independent application card at the solicitation of Martin, her supervisor. In the latter part of February, Gibbs received a Brotherhood application card which had been distributed by Virginia Connors, another supervisor in Gibbs' department. Gibbs sought out Heslin, the head forelady in charge of her depart- ment, and asked if she was compelled to sign the card. Gibbs testi- fied, and we find, that the following conversation took place : She said, "Well, what's your objection?" I told her I didn't want to sign anything and she says, "Why not?" And I didn't want to tell her why, I just didn't want to join any more unions. So she says, "Well, I guess you'll have to sign or we won't be responsible for the consequences." Heslin undoubtedly had reference to the closed-shop contract between the respondent Condenser and the Brotherhood which had been executed on February 19, 1937. Gibbs then signed the Brotherhood card. By her expressed reluctance to sign the Brotherhood card, Gibbs marked herself in Heslin's eyes as an employee unsympathetic with the labor policy of the respondents. At that time, and there- after, Gibbs was in fact active in support of the United by reason of her regular attendance at meetings. The Hubbard School meeting of the United on the evening of March 29, 1937, was particularly well publicized in advance. Heslin made a determined effort during the day of March 29, 1937, to influence employees to refrain from attending, as the following testimony of Gibbs reveals : Q. . . . what did Kitty Hessler 78 say to you? A. Kitty says, "Any of you girls that attended the meeting will be discharged." She said, "We can't stand any of that." Q. Now, did she speak to you individually or many girls? A. Groups, she spoke to some groups. Q. How many were in your group? A. Well, I should say about six or eight. Just as far as her voice would carry beyond the machines. Q. Then did you see her talking to other groups? A. Yes, she went on. "Catherine Heslin 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. Where? A. To the different sections of the groups. Q. About how many groups did you see her talking to? The WITNESS : I should say about four. Notwithstanding Heslin's warning , Gibbs attended the meeting of the United on Monday, March 29, 1937. Between Tuesday and Friday of the same week, Heslin told Gibbs that she did not want her in the department, and sent her to Leary. Gibbs testified : ... so I went into Mrs. Leary and I says, I told her that Kitty Hessler sent me to her and she didn't want me in her department, so she said , Well, she just threw up her hands and looked at me and I said, "Does that mean I am discharged?" She nodded her head and said, "Yes." Heslin testified that she told Gibbs to report to Leary and that this was tantamount to discharging her. Heslin asserted, however, that she discharged Gibbs because she refused to work on a press to which Heslin had ordered that she be shifted . Leary, on the other hand, testified that Gibbs was dismissed because her children required too much attention to allow her to work a sufficient number of hours. Gibbs' discharge slip lists a severance of employment on March 22, 1937, because of "Irregular Attendance" and the comment with respect to rehiring is "No." Although this slip is signed "C. Heslin," Heslin testified that this was but one reason -and that the immediate cause for the discharge was Gibbs' alleged refusal to obey Heslin's orders to work on a certain press. Heslin could not explain why the alleged immediate cause of the discharge was not listed on the discharge slip. In their briefs docketed February 1, 1940, counsel for both respond- ents contend that the employer's records show that Gibbs was dis- charged on March 22, 1937, and that therefore she could not have been present in the plant on March 29, 1937, to receive the warning from Heslin described above. Counsel for the respondent Condenser asserts in the aforesaid brief at page 64 that "the correctness of that record (the afore-mentioned discharge slip ) is undisputed." On the contrary , the statements of counsel are demonstrably unfounded and the testimony of Gibbs is amply supported by the tabulations prepared from the records of the respondent Condenser and intro- duced in evidence by counsel for the respondent Condenser as Re- spondent Exhibit No . 68b. A similar tabulation prepared in a simi- lar way was introduced as Trial Examiner 's Exhibit No. 6a. Both the aforesaid exhibits set forth beside the name of Margaret Gibbs and in a column headed "Date of Discharge" the date April 2, 1937. CONDENSER CORPORATION OF AMERICA 445 Approximately in the middle of April 1937, Gibbs applied to the respondent Condenser for reinstatement. She was informed that no position was available for her. In view of the fact that Heslin knew Gibbs was not in sympathy with the campaign to join and assist the Brotherhood, and in view of, the fact that Gibbs',attendance at the March 29, 1937, meeting of the United was contrary to the express orders of Heslin, considered in con- nection with the other discriminatory discharges for attending the March 29, meeting, the discrepancies with respect to the reasons for the discharge between the records of the respondent Condenser and the testimony of Heslin, and the other acts of interference and coercion with respect to union activities in which Heslin and Martin have fig- ured, we find that Gibbs' version of the circumstances leading up to and surrounding her discharge are entitled to credence. We conclude upon the basis of all the evidence that Gibbs was discharged for her activities in support of the United. We therefore find that Margaret Gibbs was discharged by the respondents between March 30, 1937, and April 2, 1937, because she joined and assisted the United. By that discharge, the, respondents, and each of them, discriminated in regard to her hire and tenure of employment and the terms and conditions of her employment, thereby discouraging membership in the United, and interfered with, restrained, and coerced their employees in the exercise of rights guar- anteed in Section 7 of the Act. Certain other individuals named in the complaint. We hereby affirm the rulings of Trial Examiner Seagle granting motions to dismiss 79 the third amended complaint with respect to 23 individuals named therein.80 The evidence does not sustain the allegations of the third amended complaint with respect to any of the said individuals. 2. The discharges pursuant to the contract of February 19, 1937 It is alleged that the respondents, in discharging and refusing to reinstate 14 named employees, have discriminated against those em- ployees in violation of Section 8 (1) and (3) of the Act. It is not disputed that the respondent Condenser discharged said 14 employees on the following respective dates : John Sedon on March 28, 1937; Michael Santoro'81 Fred Vitto,82 Katherine Dolce,83 Mary Schumacher, 49 Several of these motions to dismiss were made by counsel for the Board, the remainder by counsel for the respondents. 80 Joseph Morelli, Charles Longo, John Huyler, Lou Faigle; Michael Jankowy, Norman Hinkle, Joseph J. Bruzdowski, Vito Morella,•Mike Mazza, Cono Morello, Dominio Ventrello, John Serido, Arvella Horne, John Golden, Louis De Filipo, May Boland, Margaret Pipick, Victoria Howell, Joseph Ejk, Thomas D'Amico, Carmen Ferrisi, Margie Dimuria, and Emily Raczyniski. 81 Spelled "Michael Santora" in some exhibits 82 Spelled "Vitto" and "Viotti" in some exhibits 13 Spelled "Catherine Dolce" In some exhibits. 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Arthur Chippendale on March 30, 1937; John DiVico,114 Ann Jacobs, Caroline Callecchio,SS Tessie Appezzatio,86 Michael Sabino, Herbert Rydberg, Katherine Fedoruk,87 and Frances Prohodka 88 on April 7, 1937. Motions were made by the respondents and the Brotherhood to dis- miss the third amended complaint with respect to the cases of each of the 14 employees named above, on the ground that they were dis- charged pursuant to the closed-shop provision of the contract of February 19, 1937. Upon notification from the Brotherhood of the suspension of the 14 employees named above, the respondents, through supervisory employees of the respondent Condenser, discharged the said em- ployees. The contract of February 19, 1937, provides : SECOND. The Employer is authorized to hire all of its help through its own personnel department but it is understood that all workers in the production departments will become members of the Union after completion of the satisfactory trial period of two weeks as hereinafter set forth. THIRD. All new workers hired as set forth in Paragraph Sec- ond may be discharged by the Employer during the first two weeks of their employmentt for any cause whatsoever. The meaning of the contract, as indicated by the quoted portions, is not entirely free from ambiguity. For reasons indicated below, however, it is unnecessary to decide whether the closed-shop provi- sion was applicable to persons already in the employ of the respond- ents at the time of its execution. For the purposes of the case it will be considered that such application was within its terms. This is in accordance with the position taken in this proceeding by the respondents and by the Brotherhood. Section 8 (3) of the Act provides: Sec. 8. It shall be an unfair labor practice for an employer- (3) By discrimination in regard to hire or tenure of employ- ment or any term or condition of employment to encourage or discourage membership in any labor organization : Provided, that nothing in this Act . . . shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in this Act as an s+ Spelled "John DeVico" in Board Exhibit 51. 8 Spelled "Caroline Collechio" in Trial Examiner's Exhibit 6. 5 Spelled "Tessie Appegata" in Trial Examiner 's Exhibit 6 87 Erroneously spelled "Katherine Feodorik " in- the third amended complaint and "Cath- erine Fedorik" or "Catherine Fredoric" in exhibits. 11 Spelled "Frances Prehodka " or "Frances Prehadka" in exhibits CONDENSER CORPORATION OF AMERICA 447 unfair labor practice) to require as a condition of employment therein, if such labor organization is the representative of the employees as provided in section 9 (a), in the appropriate col- lective bargaining unit covered by such agreement when made. There is no question but what the discharge and refusal to rein- state the 14 employees named above because of their suspensions from the Brotherhood were acts of discrimination in regard to tenure of employment. The respondents 'thereby encouraged membership in the Brotherhood and discouraged membership in its rival, the United. The question remains whether, as the respondents and the Brother- hood contend, the contract of February 19, 1937, protects the respond- ents. We have found that the Brotherhood had been, prior to the execution of the contract of February 19, 1937, established, main- tained, and assisted by the respondents by acts defined in Section 8 (1) of the Act as • unfair labor practices, and therefore that the closed-shop contract of February 19, 1937, was invalid. -Conse- quently the discharge and refusal to reinstate the 14 employees named above fall clearly within the prohibition of Section 8 (3) of the Act and do not come within the protection of the proviso thereto.89 We find that the 14 employees named above were discharged on the respective dates set forth because they had been suspended from membership in the Brotherhood. We find that by the above discharges the respondents, and each of them, interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act. We further find that by the above discharges the respondents, and each of them, encouraged membership in one labor organization and discouraged membership in another by discrimination in regard to tenure of employment. In view of these findings, motions made by the respondents and the Brotherhood to dismiss the third amended complaint in so far as it pertains to the cases of Katherine Dolce, Arthur Chippendale, and John DiVico on the ground of the absence of proof, as to which Trial Examiner Seagle reserved ruling, are hereby denied. H. The respondent Condenser and the respondent Cornell as an integrated enterprise We have described above the close business relationship between the respondent Condenser and the respondent Cornell.90 The re- spondent Condenser has been using plant facilities supplied to it 89 Matter of Mt. Vernon Car Manufacturing Company, a corporation and Local Lodge No 1256, Amalgamated Assocaattion of Iron, Steel and Tin Workers of North America, affil- iated with the C. I. 0., 11 N. L. R. B. 500. 10 See Section I B, above. 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and also used by the respondent Cornell, as well as manufacturing materials and operating funds advanced to it by the respondent Cornell.91 Both respondents were located in the South Plainfield plant together prior to the commencement of any of the unfair labor practices described above. The respondent Cornell has been pur- chasing almost all of the respondent Condenser's capacitors, and the respondent Cornell has been selling only capacitors manufactured by the respondent Condenser. Intercorporation charges between the re- spondents have been made at substantially the costs to the respective corporations, the transactions being adjusted by bookkeeping entries. The costs, upon which such charges have been based, have included the cost of labor. All manufacturing operations are performed by the respondent Condenser alone, and all production workers in the South Plain- field plant are directly employed by it. Nevertheless, the evidence adduced at the resumed hearing concerning the labor relations be- tween the respondents and the said production employees reveals a unity of interest and action on the part of the respondents and an active participation by the respondent Cornell, through its officers, in the labor policies and activities affecting the said production em- ployees. During the entire period with which we are concerned, Haim Beyer was the secretary and treasurer of the respondent Cornell. His chief duty was to act as inspector, in the interest of the respondent Cornell, of the respondent Condenser's production operations. We have already described the manner in which Beyer himself discharged Frank La Vecchia, a production employee, on March 31, 1937, because of his participation in concerted activities and support of the United.92 We have also found that Beyer and Reynolds together informed Edward Hughes of his discharge.93 Moreover, Diana's interview on January 21, 1937, at which reinstate- ment was obtained for a group of checkers, was with Beyer and Blake, both officers of the respondent Cornell, the latter being presi- dent, and neither officially connected with the respondent Condenser. We have described above the parallel activities of officers of both respondents, particularly Blake, Beyer, Arnold, and Bleich,94 as well as the activities of various lesser supervisory employees of the re- spondent Condenser, which resulted in our conclusion that the Inde- pendent was dominated and supported. We have also described the .dealings between the United and the respondent Condenser which were carried on entirely, until Arnold's letter of February 23, 1937, by Blake, and which involved among other things a temporary, oral 91 See Seel ion I B, above. 92 See Section III, above. m Id. 21 Treasurer and pi eduction superintendent of the respondent Condenser. CONDENSER CORPORATION OF AMERICA 449' status quo agreement between Blake and Carey providing that there were to be no strikes, lock-outs, or discharges in the South Plainfield plant and that past discharges claimed to be discriminatory were to be adjusted.95 We have also described above in Section III C the close relationship between the respondents in the publication of "The C-D Condenser" with particular reference to the issue of February 11, 1937. It is not necessary to set forth in further detail the evi- dence. The record plainly shows that since the respondents moved into the South Plainfield plant, the respondent Cornell, through its officers, has actively participated in and helped to formulate the labor policies and practices of the respondent Condenser. We find, on the basis of the record in the resumed hearing, that the respondent Condenser and the respondent Cornell, since the commencement of operations at the South Plainfield plant, have functioned together as one integrated business enterprise.96 Section 2 (2) of the Act provides that the term "employer" as used in the Act ". . . includes any. person acting in the interest of an employer, directly or indirectly . .." Section 2 (1) of the Act provides "The term `person' includes . . . corporations . . ." On the basis of the considerations set forth above, we find that the respondent Cornell acts directly and indirectly for the respondent Condenser and that both respondents are employers of the employees here involved. 06 See Section III D 2a, above 9b National Labor Relations Boas d v Pennsylvania Greyhound Lines, Inc, 303 U S. 261 Mattes of Consolidated Edison Company of New York, Inc and United Electrical and Radio 11 of kers of America, affiliated with the Committee for Industrial Organization, 4 N L. R B 71, modified on other grounds and enforced as modified, 305 U S 197; Matter of Todd Shipyards Corporation, Robins Dry Dock and Repau Co, and Tietlen and Lang Dry Dock Co and Industrial Union of Marine and Shipbuilding Workers of America, 5 N L. R B 20 , National Labor Relations Board v Wm Randolph Hearst, et al 102 F (2d) 658 (C C - 9th) , National Labor Relations Board v Christian A Lund, doing business as C A Lund Co and Northland Ski Manufacturing Co (C C A 8th) 103 F (2d) 815; Matter of Waggoner Refining Company, Inc . and 1V T. Waggoner Estate and International Association of Oil Field, Gas Well and Refinery Workers of America, Matter of Waggoner Refining Company, Inc, and 11' T Waggoner Estate and Waggoner Em- ployees Federation, 6 N L It B 731 , Matter of Art Crayon Company, Inc. and its affil- iated company, American Artists Color Works, Inc and United Artists Supply Workers, 7 N L R B 102 ; Matter of Bloedel-Donovan Lumber Mill and Columbia Valley Lumber Company and International Woodworkers of America, Local No yG, 8 N L R B 230 ; Matter of Kling Factories, an assumed title used by D D Kling, A J Kling, and C E. Helgren iii the management of Chautauqua Cabinet Go , Brockton Furniture Co , Herrick Furniture Co., John A Kling (successor to Crandall Panel Co ) and Frewsburgh Furniture- Co, and Locals 12, 13, 14, and 15, Organized Furniture Workers of Jamestown, N Y, 8 N. L R B 1228; Matter of Swift and Company, Iowa Packing Company and Newton Packing Company, Corporations and Local 630, Amalgamated Meat Cutters and Butcher Workmen of North America and Detroit and Wayne County Federation of Labor, 10 N L. R R 991, Matter of Watmman Steamship Corporation and Commercial Telegraphers Union, Marine Division, A. F. of L, 10 N L R B 1079; Roemer Bros. Trucking Co., Inc , and Roemer Garage, Inc. and International Association of Machinists, Lodge 340, A. F_ of L, 13 N L R B 549; Matter of The Press Co. Inc, and The Garrett Company and Tri-City Newspaper Guild of Albany, Troy and Schenectady, New York. 13 N L R B 630- 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent Cornell as set forth in Section III above, without reference to the activities of the respondent Condenser set forth in Section III G I above with respect to the individuals listed in Appendix A, occurring in connection with the operations of the respondents described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and have led and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. The activities of the respondent Condenser as set forth in Section III above, occurring in connection with the operations of the respond- ents described in Section I above, have a close, intimate, and substan- tial relation to trade, traffic, and commerce among the several States, and have led and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondents have engaged in unfair labor practices, we will order them to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act and to restore, as nearly as possible, the situation that existed prior to the commission of the unfair labor practices. We have found that the respondents have engaged in a course of conduct which effectively discouraged their employees from joining the United and unlawfully encouraged their employees to join, first, the Independent, and later, the Brotherhood. We have found that the respondents' course of conduct has established, maintained, and assisted the Brotherhood by various unfair labor practices. We shall, therefore, order the respondents to cease and desist from interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act. Moreover, in order to restore the status quo and to permit the employees full freedom in self-organization, without hindrance by reason of the respondents' unfair labor practices, we find it essential, and shall order, that the respondents cease and desist from recognizing the Brotherhood as a representative of any of their employees pending final action upon the petitions of the United for investigation and certification of representatives, and cease and desist from recognizing the Brother- hood as the exclusive representative of their employees unless and until the Brotherhood is certified as such exclusive representative or, after final action on the United's petition, the Brotherhood is duly designated by a majority of the employees, in the unit herein- after found appropriate, as their representative. We shall also affirmatively order the respondents to withold such recognition. CONDENSER CORPORATION OF AMERICA 451 In addition we have found that the contract of February 19, 1937, entered into by the respondents, through the respondent Condenser, with the Brotherhood, constituted an integral part of the respondents' campaign to establish, maintain, and assist the Brotherhood and dis- courage membership in the United by interference, restraint, and coer- cion. The respondents should not be permitted to retain the advan- tages of their unfair labor practices through the device of entering into a contract or a series of contracts with an organization they have unlawfully assisted. In order to restore the status quo and create a situation in the South Plainfield plant where the employees, who for at least 2 years have been subjected to the provisions of an unlawful closed-shop contract favoring the Brotherhood, will feel free to organize according to their own wishes, it is necessary that the respondents cease giving effect to the contract of February 19, 1937, any renewal or extension thereof,97 and any successor contract which may now be in effect. Although the Brotherhood's contract of February 19, 1937, has by its terms expired on February 18, 1939, any renewal or extension thereof pursuant to its terms set forth above must be considered merely as a continuation of the original un- lawful contract and unlawful plan. Moreover, in our opinion any subsequent contracts negotiated between the respondents, or either of them, and the Brotherhood stand in the same position as the con- tract of February 19, 1937, unless the respondents have meanwhile purged themselves of their unfair labor practices and the situation in the plant has been such as to insure the employees full freedom of expression in their choice of representatives. We cannot envisage such a situation in the plant in view of at least 2 years of unlawful closed-shop conditions favoring the Brotherhood under the original unlawful contract. Under such circumstances, the objectives of the Act can be secured only if the respondents cease giving effect to any [successor] contract with the Brotherhood as is now in effect. In their motions to reopen, the respondents and the Brotherhood requested opportunity to introduce evidence set forth in affidavits supporting these motions, to show that the respondent Condenser had negotiated with the Brotherhood beginning some 60 days prior to the expiration of the unlawful agreement of February 19, 1937, as provided therein; that these negotiations extended beyond February °' The contract of February 19; ' i937, although % it has expired by its terms on February 18, 1939, contains the following clauses looking to renewal TWENTY-FOURTH.-Sixty days prior to the termination of this Agreement, either party may submit to the other a proposed Agreement for an additional period of two years. In the event that the parties are unable to agree upon terms and conditions of said renewal agreement, then in that event the issues in dispute between the parties shall be submitted to arbitration in the same manner as provided in Paragraph Eighth hereof, proiided , however, that there shall be no changes in the provisions of Para- graph Sixth, Ninth, and Twenty-second 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 18, 1939, the date of expiration; that the unlawful agreement was extended pending the consummation of negotiations for a new agreement; that such new agreement was finally consummated be- tween the respondent Condenser and the Brotherhood under circum- stances set forth; and that the said new agreement had been in effect for almost a year on January 30, 1940; and to show generally the nature of the labor relations and conditions in the South Plainfield plant since the execution of the contract of February 19, 1937. In our opinion, as we have pointed out above, subsequent contracts negotiated between the respondents, or either of them, and the Brotherhood stand in the same position as the contract of February 19, 1937, unless the respondents have meanwhile purged themselves of their unfair labor practices and the situation in the plant has been such as to insure the employees full freedom of expression in their choice of representatives. No such showing is made in the papers supporting the motions to reopen and we must presume that the conditions shown to exist at the hearing continue. As stated above, we find that under such circumstances the objectives of the Act can best be secured only if the respondents cease giving effect to such contract with the Brotherhood as is now in effect.98 Hereinafter we have directed that an election be held among the employees of the respondents in an appropriate unit to determine whether they desire the Brotherhood, the United, or neither of these labor organizations, to be their exclusive collective bargaining agency. That election is to be held after a period shall have elapsed sufficient to permit the respondents' employees to consider and determine free from any and all employer compulsions, restraints, and interference, which of the two labor organizations, if either, they wish to have represent them for collective bargaining purposes. Although we have found that the Independent was dominated by the respondents, in view of our finding that the Independent has not been in existence since February 1937, it will not be necessary to, order the respondent to disestablish that organization although we shall order them to refuse it recognition lest it be revived.9° We have found that the respondent Condenser discriminatorily discharged or laid off 17 employees listed in Appendix A. Since we have considered some or all of the evidence adduced at the former hearing in sustaining the allegations of the complaint with respect to the individuals listed in Appendix A, we shall dismiss the allega- 98 Matter of Pilot Radio Corporation and United Electrical d Radio Workers of America, 14 N L R B 1084. ss Matter of American Manufacturing Company, Inc and International Association or Machinists, Local Union No. 79, 7 N. L. R. B. 375, Matter of Yates-American Machine Company and Amalgamated Association of Iron, Steel and Tin Workers of North America,. Lodge 1787, 7 N. L. R. B. 627. CONDENSER CORPORATION OF AMERICA 453 Lions with respect to said individuals in so far as the respondent Cornell is concerned. But we find that, to effectuate the policies of the Act, these employees must be restored to their status before the respondent Condenser's discrimination against them by an offer of full reinstatement to their former or substantially equivalent posi- tions, with back pay. Our order with respect to the employees listed in Appendix A will be directed, however, only against the respondent Condenser. We have further found that the respondent Condenser and the respondent Cornell discriminatorily discharged or laid off the 19 employees listed in Appendix B. We shall order the respondents to offer them immediate and full reinstatement to their former or substantially equivalent positions, with back pay. Such reinstatement shall be effected in the following manner : All employees hired after the respective lay-off or discharges which we have found to be discriminatory shall, if necessary to provide posi- tions for those to be reinstated, be dismissed. If thereafter, by rea- son of a reduction in force there are not sufficient positions available for the remaining employees, including those to be reinstated, all available positions shall be distributed among such remaining em- ployees in accordance with the respondents' loo usual method of re- ducing their force, without discrimination against any employee because of his union affiliation or activities and following a system of seniority to such extent as has heretofore been applied in the con- duct of the respondents' business. Those employees remaining after such reduction, for whom there are then no available positions, shall be placed upon a preferential list prepared in accordance with the principles set forth in the previous sentence, and shall thereafter, in accordance with such list, be offered employment in their former or substantially equivalent positions at the respondents' plant as such employment becomes available and before other persons are hired for such work, provided, however, that an employee shall remain on the preferential list until he accepts an offer of employment of the re- spondents in his former or substantially equivalent employment, or declines an offer of employment in his former or substantially equiv- alent employment. This proceeding was transferred and continued before the Board on October 18, 1937, and no Intermediate Report has been filed by either trial examiner. Pursuant to stipulation, further testimony was taken on October 30, 1937, by deposition on behalf of the respondents. The Proposed Findings of Fact, Proposed Conclusions of Law, and 100 As used in this paragraph, the word "respondents" has reference only to the respond- ent Condenser in so far as we have found that certain employees have been discriminated against only by that respondent. 283033-41-vol. 22--30 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Proposed Order was issued on December 2, 1939. The United, the Brotherhood, and both respondents argue that the delay has preju- diced each of them. Such delay as there has been since the inception of this proceeding has been occasioned in part by the injunction pro- ceedings in the United States District Court for the District of New Jersey brought by one respondent and invoked by the other respond- ent as stated above in Statement of the Case. At the commencement of the former hearing the respondent Condenser moved to hold the hearing in abeyance pending the first Supreme Court rulings on the constitutionality of the Act. The length of the record accounts for much of the time which elapsed between October 30, 1937, and Decem- ber 2, 1939. Taking into account all of the circumstances we shall order that the amount of back pay which would be due for the period from October 30, 1937, to the date of this decision if computed in the usual fashion shall be reduced by one-half. Before such reduc- tion the back pay to which the employees listed in Appendices A and B would be entitled would be sums equal to the respective amounts which they would normally have earned as wages from the date of the respective discharges or lay-offs to the date of the offer of rein- statement, less their respective net earnings 101 during the said period. In computing the amount of wages which would normally have been earned by the employees listed in Appendix C (all of whom are listed also in Appendices A or B), it will be taken into account that the said employees, if they had not been discriminatorily discharged or laid off, would have received an increase of 3 cents per hour after February 15, 1937, pursuant to the general increase effective in the plant on that date. VI. THE QUESTION CONCERNING REPRESENTATION We have found that the United represented prior td February 19, 1937, a substantial number of employees in the respondent's South Plainfield plant. On January 19, 1937, and January 25, 1937, the United requested recognition:' as the exclusive bargaining representa- tive of employees in the South Plainfield plant. The respondents have never recognized the United or bargained collectively with it as the exclusive representative of employees in an appropriate bargain-. 101 By "net earnings" is meant earnings less expenses , such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent , which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer- ica, Lumber and Sawmill 117orlers Union, Local 2390, 8 N L. R B . 440 Monies received for work performed upon Federal, State , county, municipal , or other work-relief projects are not considered as earnings , but as provided below in the Order, shall be deducted from the sum due the employee , and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal , State, county, municipal , or other government or governments which supplied the funds for said work-relief project. CONDENSER CORPORATION OF AMERICA 455 ing unit in the South Plainfield plant. On February 19, 1937, and thereafter, the respondents did recognize the Brotherhood as the exclusive bargaining representative of employees within the unit claimed by the United to be appropriate. Upon the basis of the evidence it is clear that at least by February 19, 1937, on which date the United filed two petitions requesting an investigation and certi- fication of representatives pursuant to Section 9 (c) of the Act, a question had arisen concerning representation with respect to em- ployees at the South Plainfield plant of the respondents. Since we have found that the Brotherhood was not entitled to recognition as the exclusive representative for the purpose of collective bargaining of employees in an appropriate bargaining unit in the South Plain- field plant of the respondents, the fact that the respondents have accorded the Brotherhood such exclusive recognition gave rise to rather than resolved a question concerning representation. The United and the Brotherhood each here claims to have been designated as collective bargaining representative by a majority of the respondents' employees 'in an appropriate unit, and, accordingly, to constitute the exclusive collective bargaining representative of all the employees in such unit. These units are substantially identical. We are unable upon the evidence adduced to determine whether either labor organization represents a majority of the respondents' em- ployees in the unit hereinafter found to be appropriate. Both or- ganizations appear to have been designated by a substantial number of the plant employees, and a material amount of duplication in their membership exists. Moreover, the contention of the Brotherhood regarding representation cannot be considered seriously because of the respondents' above-described unlawful assistance to the Brother- hood as a result of which that organization cannot presently con- stitute a freely chosen representative.102 We find that a question has arisen concerning the representation of employees of the respondents. While it may be that there now exists an agreement between the Brotherhood and the respondents, or either of them, granting the Brotherhood recognition as exclusive representative of the South Plainfield plant employees within a unit substantially identical with the unit hereinafter found to be ap- propriate, and/or providing for membership in that labor organiza- tion as a condition of employment, such an agreement, for the reasons set forth above, cannot be taken as resolving the question concerning representation here presented.103 Any existing contract between the 102 Matter of Pilot Radio Corporation and United Electrical & Radio Workers of America, 14 N L R B 1084 103Matter of Pacific Greyhound Lines and Imalganiated Association of Street, Electric Railway and Motor Coach Employees of America, etc, 0 N L R B 557, Matter of Pilot Radio Corporation and United Electrical & Radio Workers of America, 14 N. L R B. 1084. 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brotherhood and the respondents, or either of them, not made with recognition of the Brotherhood as exclusive representative of the South Plainfield plant employees within the unit hereinafter found to be appropriate is, of course, no bar to an election held to resolve that issue."' In any event, an agreement made subsequent to the commencement of representation proceedings before the Board con- stitutes no bar to a determination of such a question.105 VII. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the respond- ents described in Section I above, has a close, intimate, and sub- stantial relation to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstruct- ing commerce and the free flow of commerce. VIII. THE APPROPRIATE UNIT The respondents' production process at the South Plainfield plant is an integrated one involving a virtually continuous and interdepend- ent service of operations from the inception of production operations until the finished products arrive at the shipping department. The first collective agreement between either of the respondents and a labor organization at the South Plainfield plant was the Feb- ruary 19, 1937, agreement between the Brotherhood and the respond- Ent Condenser. That agreement provides, with reference to the em- ployees at the South Plainfield plant, as follows : This agreement shall apply to workers in production depart- ments and shall not apply to engineering, laboratory, shipping, receiving departments, watchmen, maintenance, office, foremen, supervisors, and clerical. The United admits to membership in its organization all produc- tion employees at the South Plainfield plant excluding precisely the categories of employees listed in paragraph nineteenth of the Brother- hood's said agreement as those to whom the said agreement shall not 104 Matter of Northrop Corporation and United Automobile Woileri, Local No 229, 3 N L. R B. 228 10 Matter of Wilmington Transportation Company and Inland Boatmen's Union of the Pacific, San Pedro Division, 4 N. L. R. B 750; Matter of American-West African Line, Inc. and National Marine Engineers' Beneficial Association, 4 N. L. R. B. 1086; Matter of California Wool Scouring Company and Textile Workers Organizing Committee, 5 N L R B 782 ; Matter of Pilot Radio Corporation and United Electrical & Radio Workers of America, 14 N L R B 1084 CONDENSER CORPORATION OF AMERICA 457 apply. Checkers are admitted to membership by the United although their duties include clerical, in addition to manual work. Manual work performed by checkers involves aiding production workers to obtain material. The remaining duties of the checkers, which have been amply described above, are intimately associated with the opera- tions of the production departments. The checkers perform their duties in and about the departments where the production employees are stationed. The history of labor relations at the South Plainfield plant, as described above, indicates clearly that the checkers identi- fied their interests with those of the production workers generally and have constantly joined with production workers in concerted activi- ties looking toward collective bargaining and mutual protection. The Brotherhood and the respondents neglected to express any viewpoint with respect to the appropriate unit at the hearings. On the basis of these facts we are of the opinion, and find, that all the production employees of the respondents in the South Plainfield plant, excluding engineers, laboratory employees, shipping- and receiving-department employees, watchmen, maintenance, office and clerical employees, supervisory employees and foremen, but includ- ing checkers, constitutes a unit appropriate for the purposes of col- lective bargaining and that this unit will insure to employees of the respondents the full benefit of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. IX. THE DETERMINATION OF REPRESENTATIVES For reasons already sufficiently appearing we are unable upon the record to determine the question which has arisen concerning repre- sentation of employees of the respondents. We find that this question can best be resolved by means of an election by secret ballot .1011 In view of the desirability of affording to the employees within the appropriate unit an opportunity freely to consider and determine their choice of representatives, the election will be held at such time as we shall in the future direct. At the time the date of the election is set we shall determine the pay-roll date as of which eligibility to vote shall be calculated. Upon the basis of the above findings of fact and upon the entire record in the case, except in so far as the record prior to the resumed hearing is being applied only to the respondent Condenser, the Board makes the following : 106 Matter of The Cudahy Packing Company and United Packinghouse Workers of Amer- ica, Local No 21, of Packinghouse Workers Organizing Committee, affiliated with the Con- gress of Industrial Organizations, 13 N L R. B 526. 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. The respondent Cornell-Dubilier Electric Corporation is an "em- ployer" of the employees here involved within the meaning of Section 2 (2) of the Act. 2. The respondent Condenser Corporation of America is an "em- ployer" of the employees here involved within the meaning of Section 2 (2) of the Act. 3. United Electrical and Radio Workers of America, Local No. 1041-B, International Brotherhood of Electrical Workers, and Con- denser Workers Independent Union, are labor organizations within the meaning of Section 2 (5) of the Act. 4. By dominating and interfering with the formation and adminis- tration of Condenser Workers Independent Union, and contributing support thereto, the respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (2) of the Act. 5. By discriminating in regard to hire, tenure , and terms and con- ditions of employment of the employees listed in Appendix A, and thereby discouraging membership in the United Electrical and Radio Workers of America, the respondent Condenser has engaged, in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 6. By discriminating in regard to hire, tenure , and terms and con- ditions of employment of the employees listed in Appendices A and B, and thereby discouraging membership in the United Electrical and Radio Workers of America , the respondents , and each of them, have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 7. By interfering with, restraining , and coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 ( 1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 9. The contract of February 19, 1937, between the respondents, in the name of the respondent Condenser, and Local No. 1041-B, International Brotherhood of Electrical Workers , having been entered into as a part of the respondents ' interference with, restraint, and coercion of their employees in the exercise of the rights guaranteed by Section 7 of the Act , is invalid. 10. The provision in the contract of February 19, 1937, between the respondents, in the name of the respondent Condenser, and Local No. 1041-B , International Brotherhood of Electrical Workers , requir- CONDENSER CORPORATION OF AMERICA 459 ing membership in the, latter as a condition of employment by the respondents, having been made with a labor organization established, maintained, or assisted by unfair labor practices within the meaning of Section 8 (1) and (3), is invalid by reason of Section 8 (1) and (3) of the Act. 11. By discharging, laying off, or transferring their employees listed in Appendix D the respondents have not engaged in unfair labor practices within the meaning of Section 8, (1) or (3) of the Act. 12. A question affecting commerce has arisen concerning the repre- sentation of employees of the respondents within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 13. All the production employees of the respondents in the South Plainfield plant, excluding engineers, laboratory employees, watch- men, maintenance, office and clerical employees, supervisory employ- ees and foremen, but including checkers, constitute a unit appropriate for the purpose of collective bargaining, within the meaning of Section 9 (b) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondents; Condenser Corporation of America, and Cornell- Dubilier Electric Corporation, and their officers, agents, successors and assigns, shall : 1. Cease and desist from : (a) Dominating or interfering with the administration of Con- denser Workers Independent Union, or with the formation or admin- istration of any other labor organization of their employees, and from contributing support to Condenser Workers Independent Union, or to any other labor organization of their employees; (b) Recognizing Condenser Workers Independent Union as the representative of any of their employees for the purpose of dealing with the respondents, or either of them, concerning grievances, labor disputes, wages, rates of pay, hours of employment, and other conditions of employment ; (c) Discouraging membership in United Electrical and Radio Workers of America, or any other labor organization of its employees, by discharging or laying off their employees, or any of them, or in any other manner discriminating in regard to hire or tenure of employment, or any term or condition of employment, of their employees; 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Encouraging membership in Local No . 1041-B, International Brotherhood of Electrical Workers, in Condenser Workers Inde- pendent Union , or in any other labor organization of their employees, by discharging or laying off their employees, or any of them, or in any other manner discriminating in regard to hire or tenure of employment , or any term or condition of employment, of their employees ; (e) Recognizing or in any manner dealing with Local No. 1041-B, International Brotherhood of Electrical Workers, as the representa- tive of any of their employees for the purpose of dealing with the respondents, or either of them, concerning grievances , labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, pending final action upon the petitions of United Elec- trical and Radio Workers of America for investigation and certification of representatives. ( f) Recognizing or in any manner dealing with said Local No. 1041-B as the exclusive collective bargaining representative of any of their employees, unless and until said labor organization is certi- fied as such exclusive representative by the Board or unless and until, after final action upon the aforesaid petitions by the Board, said labor organization is duly designated by a majority of the respond- ents' employees within an appropriate unit to be their representative for purposes of collective bargaining; (g) Giving effect to the contract of February 19, 1937, with Local No. 1041-B, or to any extension or renewal thereof, or to any successor contract with Local No. 1041-B which may now be in effect; (h) In any other manner interfering with, restraining , or coercing their 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 purposes of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act ; except, however, that, with respect to employees listed in Appendix A, paragraphs (d) and (e) of the Order below shall apply only to the respondent Condenser and its officers, agents, successors, and assigns : (a) Refuse to recognize Condenser Workers Independent Union as the representative of any of their employees for the purpose of deal- ing with the respondents, or either of them, concerning grievances, labor disputes, wages, rates of pay, hours of employment , or other conditions of employment; CONDENSER CORPORATION OF AMERICA 461 (b) Withdraw and withhold recognition from Local No. 1041-B, International Brotherhood of Electrical Workers, as the representa- tive of any of their employees for the purpose of dealing with them, or either of them, concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, pending final action by the Board upon the afore-mentioned peti- tions ; (c) Withdraw and withhold recognition from said Local No. 1041-B as the exclusive collective bargaining representative of any of their employees, unless and until said labor organization is certi- fied as such representative by the Board or unless and until, after final action by the Board upon the aforesaid petitions, said labor organization is duly designated by a majority of the respondents' employees within an appropriate unit to be their representative for such a purpose; (d) Offer to those employees listed in Appendices A and B, and to each of them who has not since been fully reinstated, immediate and full reinstatement to their former or to substantially equivalent positions in the South Plainfield plant of the respondents, or place- ment upon a preferential list, without prejudice to their seniority rights or other rights or privileges in the manner set forth in the section entitled "The remedy" above; and place those employees for whom employment is not immediately available upon a preferential list in the manner set forth in said section, and thereafter, in said manner, offer them employment as it becomes available; (e) Make whole the employees listed in Appendices A and B for any loss of pay they have suffered by reason of their respective dis- charges, lay-offs, and transfers, by payment to each of them of a sum of money equal to an amount which each would normally have earned as wages during the period from the date of the discrimination against him to the date of an offer of reinstatement or placement upon a preferential list in accordance with 2 (d) above, determined in the manner set forth in the section entitled "The remedy" above, provided, however, that the respondent shall deduct from the amount otherwise due to each of said employees, monies received by said employees during said respective periods for work performed upon Federal, State, county, municipal, or other work-relief projects and shall pay over the amounts so deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other govern- ment or governments which supplied the funds for such work-relief projects; (f) Immediately post, and keep posted for a period of at least sixty (60) consecutive days from the date of posting, in conspicuous 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD places throughout their South Plainfield plant, notices to their em- ployees stating that the respondents will cease and desist in the man- ner set forth in 1 (a), (b), (c), (d), (e), (f), and (g), and that the respondents, with the exception noted for the respondent Cornell, will take the affirmative action set forth in 2 (a), (b), (c), (d), and (e) of this Order; (g) Notify the Regional Director of the Second Region in writing within fifteen (15) days from the date of this Order what steps the respondents have taken to comply therewith. IT IS FURTHER ORDERED that the third amended complaint, in so far as it alleges that the respondent Cornell discriminatorily discharged, laid off, or otherwise altered the terms or. conditions of employment of the employees listed in Appendix A, thereby discouraging mem- bership in a labor organization, be, and the same hereby is, dismissed. AND IT IS FURTHER ORDERED that the third amended complaint, in so far as it alleges that the respondents discriminatorily discharged, laid off, or otherwise, altered the terms or-conditions-of employment of the employees listed in Appendix D, thereby discouraging mem- bership in a labor organization, be, and the same hereby is, dismissed. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Rela- tions Act, 49 Stat. 449, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, it is hereby DIRECTED that, as part of the investigation ordered by the Board to ascertain representatives for collective bargaining with Conden- ser Corporation of America and Cornell-Dubilier Electric Corpora- tion, South Plainfield, New Jersey, an election by secret ballot be conducted under the direction and supervision of the Regional Di- rector for the Second Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations, at such time as the Board in the future shall direct, among all the production employees of the re- spondents in the South Plainfield plant, excluding engineers, labora- tory employees, shipping- and receiving-department employees, watchmen, maintenance, office and clerical employees, supervisory employees and foremen, but including checkers, to determine whether they desire to be represented by United Electrical and Radio Workers of America, or by Local No. 1041=B, International Brotherhood of Electrical Workers, for the purpose of collective, bargaining, or by neither. CONDENSER CORPORATION OF AMERICA APPENDIX A Edward Hughes Lawrence Dowling Joseph Russo John Spisso Joseph De Sepio Theodore D'Addario Herbert Peterson Vincent Binicasso William Wolf Harry Burr John Mazza Lucy Dell'Olio Gladys Del Pappa Katherine Kane Augusta Kane Beatrice Mundy Cecilia Dowling APPENDIX B Marion Penzarella Frank LaVecchia Ann Mae Therney Mary Lane Margaret Gibbs John Sedon Michael Santoro Fred Vitto Katherine Dolce Mary Schumacher Arthur Chippendale John DiVico Ann Jacobs Caroline Callecchio Tessie Appezzatio Michael Sabino Herbert Rydberg Katherine Fedoruk Francis Prohodka APPENDIX C Lawrence Dowling Joseph Russo John Spisso Joseph De Sepio Theodore D'Addario Herbert Peterson Vincent Binicasso William Wolf John Mazza Lucy Dell'Olio Beatrice Mundy Marion Panzarella APPENDIX D Joseph Morelli Charles Longo John Huyler Lou Faigle Michael Jankowy Norman Hinkle Joseph J. Bruzdowski Vito Morella Mike Mazza Cono Morello Dominio Ventrello John Serido Arvella Greve John Golden Louis DeFillipo May Boland Margaret Pipick Victoria Howell 463 464 DECISIONS OF NATIONAL Joseph Ejk Thomas D'Amico Carmen Ferrisi Margie Dimuria Emily Raczyniski Arnold Dowling LABOR RELATIONS BOARD Joseph Zsamba Esther Locke Ann Coley Phillis Fisk John Higgins Peggy Watt MR. WILLIAM M. LEIsERsoN took no part in the consideration of the above Decision, Order, and Direction of Election.