Paul Uhlich & Co., Inc.

In the Matter Of PAUL UHLICH & CO., INC. and PAINT, VARNISH AND ALLIED PRODUCTS DIVISION, UNITED MINE WORKERS OF AMERICA, DISTRICT No. 50, C. I. O. Case No. C-1495.-Decided August 16, 1940 Jurisdiction : color product manufacturing industry. Unfair Labor Practices Interference, Restraint, and Coercion: anti-union statements; declarations of union preference; threats of interference with employees' tenure and other conditions of employment; interference with collective bargaining; attempts to induce employees not to remain members of union by offers of benefits. Company-Dominated Union: unsuccessful attempt to form-employer's partici- pation in formation of: supervisory employees' suggesting formation of, solicita- tion of employee support for, presenting to employees plan for. Discrimination. allegation of discrimination dismissed. Collective Bargaining- designation of representatives by majority of employees: by express authorization-failure to negotiate in good faith-employer's failure to advance counter-proposals; imposing acceptance of demands as prerequisite to bargaining; refusal at outset to enter into signed agreement; attempts to form company-dominated union while ostensibly conferring with union. Remedial Orders : order to bargain; to put agreement into writing if one is reached;,and to cease dominating or contributing support to any union among employees. Unit Appropriate for Collective Bargaining : all production, maintenance, and shipping employees of respondent, exclusive of supervisory and clerical em- ployees and research chemists. Practice and Procedure: Respondent's motion for subpoena duces tecuni directing Board's Regional Director to produce data and documents in Board's possession bearing upon the charges filed and the complaint issued against said respondent denied on the grounds, inter aria, that wholesale publication of information and confidences gained by the Board in its preliminary investigations of cases would deter persons from supplying material information. Mr. Richard J. Hickey, for the Board. Wingate & Cullen, by 111r. Platt K. Wiggins, Mr. Cyrus S. Jullien, and Mr. Joseph F. Kelly, of Brooklyn, New York, for the respondent. Mr. Samuel Machlis, of New York City, for the Union. Mr. Leonard Lindquist, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Paint, Varnish and Allied Products Division, United Mine Workers of America, 26 N. L. R. B., No. 70. 679, 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD District No. 50, C. I. 0., herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Second Region (New York City) issued a complaint dated June 21, 1939, against- Paul •Uhlich• & 'Co., Inc., herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2), and (5). and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. The complaint alleged in substance that the respondent through its- officers and, agents, at its Brooklyn plant, (1) on and after October 6, 1938, urged, persuaded, and warned its employees to refrain from becoming or remaining members of the Union and threatened to close down its plant if, the employees continued to engage in union activity; (2) on or about October 10, 1938, Iiutiated, formed, and sponsored'a labor organization of its emplovees,,herein referred to as the Plan; (3) on and after October 10, 1938, refused to bargain with the Union although a majority of the production and maintenance employees comprising an appropriate unit had designated the 'Union as their bargaining representative; and (4) by the foregoing and other acts, interfered with, restrained,, and coerced its employees in the exercise of the rights guaranteed in Section 7, of the Act. Copies of the com- plaint, accompanied,by notice of hearing, were duly served upon the respondent, the Union, and Erza A. Wethered as it representative of'the Plan. On "July 21, 1939, the respondent filed its answer denying that it had engaged in the unfair labor practices alleged in the complaint. On-July 20, 1939, the^Board, by its Regional Director, amended its complaint to include an allegation that the respondent had discharged and refused to reinstate William Volz because he had joined and assisted the Uiiion, thereby discriminating in regard to his hire and tenure of employment and discouraging membership in the Union. Copies of the amendment to the complaint were duly served upon the respondent, the Union, and We'thered. ' On,'July 28 the respondent filed its amended answer to the com- plaint, as amended, denying the material allegations thereof and setting up, by way of affirmative defense, that (1) the Union never submitted proof of its majority representation to the respondent and was never authorized to act as exclusive bargaining representative for the respondent's employees; (2) the respondent at divers times and places conferred with representatives of the union and these con- ferences constituted collective bargaining; (3) the Board cooperated with the Union in initiating this proceeding not because of any alleged violation of the Act by the respondent, but for the purpose of com- pelling the respondent to comply with various demands of the Union PAUL UHLICH & CO., INC.. - not required by the Act;, and (4) the proceedings against the respond- ent were irregular and void in that the complaint ,was based on amended charges which were dated and served after the complaint was issued, and the charges did not comply with the, Board's Rules and Regulations in effect when the charges were filed. Pursuant to notice, a hearing was held at New York City from S'ep- tember 18 through October' 7, 1939; before' Charles E. Persons;. the Trial Examiner duly designated by the Board. At the commence- ment of the hearing, the Trial Examiner granted certain=parts of'a request for a bill of particulars by the respondent. He denied a motion by the respondent for a subpoena daces tecum addressed to Samuel Machlrs, field organizer for the Union, requiring him to pro- duce certain documents, including the mmutes of all meetings held by the Union with respect to the filing of the charges hereni, and for a 'subpoena daces tec'dm to' the Regional Director for the Second Region directing that the latter produce, among other things, All notes, memoranda, data and documents whatsoever made by or in the possession of said Board or its Directors, Examiners or agents in any way relating to, bearing upon or forming the basis of the several charges of said Union and/or the complaint and amendments to the complaint issued in the above entitled case. The motion was renewed in whole, of in part, at various stages of the hearing- and was consistently denied by the Trial Examiner on the ground- among others, that the request was,too general and inclusive. We have reviewed the record and conclude that the Trial Examiner's denial of this motion was proper.' At various times during the hearing, the respondent moved to dis- miss the complaint on the grounds that the amended charges on which it allegedly was based were dated and filed after the complaint was issued. This motion was at all times, denied by the Trial Examiner. We have reviewed this ruling and it is hereby affirmed. It is clear that charges herein were duly filed before the complaint was issued: that the amended charges filed after the issuance of the complaint merely amplified the original charges; and that second amended charges also were duly filed prior to the issuance of the amendment to the complaint. ' The respondent also moved to dismiss the complaint on the ground that the charges on which the complaint was based did not comply with the Board's Rules and Regulations in effect when the I Tn this connection it may be pointed out that (1) the blanket nature of the respondent's request indicates merely a general exploration which would hare prolonged this hearing indefinitely with no promise of iesults, (2) union records are generally of a confidential nature and their production ought not lightly to be required over the Union's objections, and (3) any wholesale publication of the information and confidences gained by the Board in its preliminary investigation of charges filed pursuant to the Act to' determine their substantial character would unquestionably deter certain employees involved in such charges from supply- mg the Board with information material to its investigation, - 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . charges were filed. The Trial Examiner denied this motion We have reviewed this ruling and it is hereby affirmed.' During the hearing, the respondent moved that the Trial Examiner be disqualified in that he had shown "bias and prejudice" by his examination and 'cross-examination of certain of the respondent's witnesses. ,This motion was denied by the Trial Examiner. In affirming this ruling, we believe that the Trial Examiner in his exami- nation of the witnesses properly exercised a judicial prerogative, and there is no evidence to support the respondent's contention that such action manifested a bias and prejudice against the respondent, or in any manner limited the right of the respondent to present its side of -the case.3 At the close of the Board's case, the respondent moved to dismiss-on the ground that the evidence adduced did not sustain the allegations of the complaint. The Trial Examiner denied this motion. At the close of the Board's case and again at the close of the hearing, counsel for the Board moved to conform the pleadings to the proof. The Trial Examiner granted this motion. ,During the hearing, the Board and the respondent were represented by, counsel and the Union by an official; all participated. Full oppor- tunity to be heard, to examine and to cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of they hearing, the Trial Examiner ruled on various motions other than those mentioned above and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. At the close of the hearing, counsel for'the Board moved to strike that part of the respondent's affirmative 2 In Consumers Power Company v N. L R B (C C A 6), decided June 27, 1940, the Court, in dis- missing the respondent's contention that the charge therein did not comply with the Board 's Rules and Regulations and was therefore inadequate to confer jurisdiction , stated The Act contains no specification of what constitutes a proper charge, save that it shall state that the respondent has engaged , or is engaging in any unfair labor practices affecting commerce . It would seem'clear, therefore , that the provisions of Article 11, S 4, of the Board 's rules and regulations , are for the information of the Board , to apprise it of the nature of the unfair labor practices alleged with suffi- cient particularity to enable it to determine that the charges are substantial and not frivolous, and so that it may enter intelligently upon the exercise of its exploratory powers. a Cf Code of Evidence, Tentative Draft No 1, American Law Institute (April 18, 1940), Rule 111, wherein the following principle concerning the calling and examination of witnesses by a judge is stated: The judge may calla witness of his own motion, or at the request of a party He may also interrogate a witness , by whomever called, in such manner as be may deem expedient. Comment It is generally recognized in this country that the judge may in the eercise of his discretion call a witness whether requested to do so by a party or not, and that he may examine any witness called by a party His action in so doing , however, is often condemned as amounting to a comment upon the weight of evidence or credibility of witnesses. This rule confirms the power of the judge to call and examine witnesses , and removes any restrictions which may be thought to exist as to the form and extent of examination It also should be noted that , after the hearing had been in progress for approximately 10 days, counsel for the respondent stated that he had no complaints as to the manner in which the Trial Examiner was conducting the hearing, but continued , "I am complaining about the law, which I think is wrong in principle." PAUL UHLICH & CO., INC. 683 defense which alleged that the Board cooperated with the Union in initiating this proceeding not because of any violation of the,Act by the respondent, but to compel the respondent to comply with various demands of the Union not required by the Act. The Trial Examiner reserved ruling on this motion . At the close of the hearing the respondent again moved to dismiss on various grounds, including that of lack of substantial proof to support the allegations of the complaint. The Trial Examiner also reserved ruling on this motion. On February 20, 1940, , the Trial Examiner filed an Intermediate Report, copies of which were duly served upon all parties. In his Intermediate Report, the Trial Examiner stated that the respondent had failed to produce any evidence to substantiate its charge of col- lusion between the Board and the Union in initiating this proceeding. Accordingly , he granted the motion made by counsel for the Board to strike that part of the respondent's affirmative defense which alleged such collusion , on which motion he previously had reserved ruling. Also, the Trial Examiner , in his Intermediate Report, denied the respondent's motion to dismiss, on which he previously had reserved ruling. The Trial Examiner found that the respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (1), (2), (3),-and (5) and Section 2 (6) and (7) of the Act, and recommended that it cease and desist therefrom and take certain specified affirmative action to effectuate the policies of the Act. Thereafter, the respondent filed exceptions to the Intermediate Report and a brief in support thereof. The Board has considered the exceptions to the Intermediate Report and , save as they are consistent with the findings , conclusions, and order below, finds them to be without merit. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Paul Uhlich & Co., Inc., a New York corporation , with its office located at New York City , and its plant at Brooklyn, New York, is engaged in the import and export business , and in the manufacture, sale, and distribution of dry colors and related products . The dry colors manufactured at its Brooklyn plant, here involved, are used in the manufacture of paint, printing inks, linoleum, plastic products, buttons, paint , varnish, lacquer, and rubber products. The principal raw materials used by the respondent are coal derivatives , approxi- mately 10 per cent of which are obtained "outside the State of New York. From July through December 1938, approximately 72,000 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pounds of its finished-products , constituting 67j2 per cent of its out- put for that period, were shipped to destinations outside the State of New York. Since the death of the'fdunder, Paul Uhlich, on December 23, 1935, the business of the respondent has been operated by four trustees, provided for in Uhlich's will. The trustees are, Mrs. H. Madeleine Uhlich, widow of the founder, Miss Catherine Fair, Mr. Frank Meyer,, and the Kings County Trust Company., These trustees, through their control of the respondent's stock, elect directors for the respond- ent and have general supervision of its affairs under terms laid down in the will. II. THE ORGANIZATION INVOLVED Paint, Varnish and Allied Products Division, United Mine Workers of America, District No. 50, C. I. 0 , is a labor organization admitting to its membership all production, maintenance, and shipping em- ployees of the respondent, but excluding supervisory and clerical employees , .and research chemists. III. THE UNFAIR LABOR PRACTICES A. Inte7ference, restraint, and coercion 11 In the fall of 1938 the Union began a membership drive among the employees of the Brooklyn plant, and by October 8, 1938, a majority of the employees had designated the Union as their. bargaining agent. When Edward E. Griffith, the plant superintendent, returned to the Brooklyn plant from a business trip on October 10, 1938, lie received a call-from Samuel Machlis, a representative of the Union , requesting an immediate conference at the plant. Griffith granted the request, and subsequently met with Machlis and employee members of the bargaining committee. Machlis informed Griffith that a majority of the men had joined the Union and that thereafter he would represent them. Griffith replied, "This is rather a shock to me. I have always been very close to these men. Their troubles were my troubles." He further stated that he felt the employees should have informed him of their -organization plans. Machlis stated he would submit a contract and Griffith replied that he would be willing to consider it. Later in the day and during working hours, Griffith called a meeting of,all the employees in the plant and in substance stated- It was not a fair and honest thing to knife a person in the back, When they could have joined a union any time. It was their privilege: To do it while I was away. After all, it does not make any difference, but I do feel a little hurt about it after the treatment I had given the men. PAUL UHLICH & CO ., 'IN C. '685 Griffith testified that at the meeting he said to John O'Brien, 'a member of the Union ,- that he did not think that O'Brien would "do a thing like that." This statement Griffith explained as based on his feeling that O'Brien " should have come to me because at that particular time he was one thousand dollars, or' approximately one. thousand dollars in my debt." After asking the employee representatives of the Union to remain, Griffith dismissed the other employees from the meeting. He then asked the members ' of the committee what they wanted, and in reply they mentioned various grievances including the need for better respirators , rubber gloves , and a place in which to eat lunch. William Volz, a member of the committee , testified that Griffith then said: All right, there 'll be no bonus this year. The bonus is definitely stopped. And you, Volz, I promised you a ,raise before I went away. You remember that? Well, there can't be-there can be nothing like that now; you may as well . forget about it. Not after this I can't give it to you. Griffith admitted that Volz , with others , had been promised a raise, and that about November 1 , 1938, he informed Volz that the respond- ent then was unable to grant it. He explained that the failure to grant this promised increase was due to complications arising because of the financial condition of the respondent , and the requirements of the Federal Fair Labor Standards Act, the provisions of which were just becoming effective. Whatever the real reason for not granting the increase, it is clear that Griffith 's statement to Volz was intended to express , and in fact conveyed , his resentment toward union organi- zation, and therefore was an act of coercion . After promising the committee that he would build , a lunch room and -supply good respi- rators, Griffith further said, according to Volz's testimony: there could be no C. I. O. union there. He wouldn't mind any other union under the A. K of L. or any other union but not the C.I.O. On October 21 a vote was taken by''12 of the 13 union members, constituting a majority of the employees in the respondent 's, plant, as to whether or not they desired to be represented by the Union. The result of the vote was 11 to 1 for ' the Union . Several of the Board's witnesses , supported in part 'by testimony given by certain of respondent 's witnesses , testified , and we find , that this vote `was taken at Griffith 's request, that he had made special ' arrangements for the extension of the work week in order that the men might be present to take this vote , and that the results of the•vote were thereafter reported to him by Joseph Whitman, a member of the Union . 'Whitman testified that preceding this vote, he had a conversation ' with Griffith by whom he was ' advised to tell the-men that in case they gave.-Lip 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their C. I. O. affiliation, the respondent would do better than the proposed union,contract in some things. Griffith specified, according to Whitman,s testimony, "Well, a week's vacation and more holidays and a little more money." After, Whitman reported the result of the ballot to Griffith, the latter stated, according to, Whitman's testimony, "Well, I gave them their last chance.. You better, tell the men at quitting time to pack up their clothes. , I am closing up the place Saturday and I will advise you to,do whatever I want to." Going downstairs, Whitman met Volz and reported this matter to, him, whereupon they began to remove their clothes from their lockers and pack them up. Ernest Bossa, assistant superintendent, observed these activities and inquired as to the cause. They reported the orders they had received from Griffith. Thereupon, Bossa telephoned I to Griffith and, returning, told the men that Griffith had been misunderstood,, that he had meant only that Whitman should tell the .men to take their clothes- out in order that the inside of their' lockers' might be painted. Griffith acknowl- edged the telephone conversation with Bossa substantially as stated :by Whitman, but contended that he merely' had informed Whitman of his intention to paint the room and the inside of the lockers. Griffith testified that it was his belief that the room was painted the next day. Other witnesses testified that the room was painted, but at a much 'later date, and that the inside of the lockers never were painted. In view (of, the circumstances, we' do not credit Griffith's testimony as to this incident, and find that the act of coercion occurred substantially as stated by Whitman and as confirmed by Volz. James 'Hendren, , a pressman who had 8 years' service in the re- spondent's employ, testified as follows concerning advice given to, him on April 26, 1939, by Ezra Wethered, after the latter had been promoted to the position of acting assistant 'superintendent: "If you-if you men want to• play ball with •me," he says, "I can do a lot for you." He says, "I'm in a position to do plenty for you." He told me if we would do away with Machlis or any other third party and meet together, he, could guarantee us a bonus back again. , , We'd get paid for our sicknesses, two weeks' vacation with pay in the summer, and, he also spoke about an increase in wages. He then told, me that-he says: "You're not too busy this after- noon," he says,."you could get in touch with the rest of the men and have a meeting during working hours, talk it over with them, and I would like to know what you're going to. do by quitting time." . , Similar testimony concerning 'Wethered's anti-union activities was given ,.by employees Volz; Thomas Kenyon, and Edward Carroll. PAUL 'UHLICH & •CO., INC. 687' Their statements differed in details'but agreed that Wethered was in a supervisory position at the time, and that he promised various' benefits in case the men would abandon the Union. ''Wetlere'd did' not recall nor deny the making of these promises, and we find that this incident occurred substantially as stat'ed'in Hendren's testimony. Kenyon, a color maker in the plant'with. 7 or 8 years' service,' testified, and we find, that early 'in 1939 Griffith 'tol'd' him' that the respondent "wouldn't sign any contract with an outside' union, and that at any time the plant may close' down it doors." Volz also testified that, in connection with a conversation concerning ' union activities in the fall of 1938, Griffith''warned''that' he' was 'goingto "close up", the factory. Several of the Board's witnesses stated that' in May, Wethered notified the union members that he would no longer recognize Kenyon as their shop steward although he had' been 'so "designated by 'the employees, but that thereafter any grievances should be presented by the individuals concerned. ' Wethered's own version of this incident is•quoted from his testimony: I told Mr. Kenyon that he was the shop steward, but if ho 'could' not get his-his complaints straight, that I would not recognize that-him as the spokesman for the men; that I would recognize every man as an individual, "because you have told me some statements that is not true. Therefore I cannot accept your' word as the law for the rest of the men." That they ,all have an equal chance to come to me and state their cases. We find that Wethered by this admitted act interfered with the em- ployees' right to have their grievances handled through collective action. ' • • , , ' I I From the foregoing it is apparent,,and we find, that by disparaging the Union, threatening reprisals if the employees remained members thereof, refusing to recognize the representative chosen by the em- ployees for the presentation of shop grievances, and promising benefits should the employees abandon the Union, and by various other acts, the respondent has interfered with, restrained, and coerced,its em-, ployces in the exercise of the rights guaranteed in Section 7 of the Act. B. The formation of the Plan On October 10, 1938, shortly after the 'meeting of Griffith with the union committee as described above, Wethered called' Whitman and Volz into the washroom. According to Whitman's testimony., Wethered told them that, "Griffith' gave him the privilege' to talk to us to see,what he could do about joining a company union . We're willing to do, better . . .:than' what -you fellows ask for in the, contract, whatever it is," and further that "Griffith gave him the privilege to spend any amount of money." This testimony was con- Egg DECISIONS OF NATIONAL LAnOR RELATIONS BOARD firmed by. Volz. Wethered's testimony; shows that he had had a conversation, with Griffith that morning shortly after Griffith had learned of the. organization in the plant. Wethered further admitted. that, he had had a conversation with Whitman and Volz at the time and place indicated by their testimony. His version of the incident, however, states that this conversation with Whitman and Volz had to do, solely with the, question of why Wethered, had not been asked to .join ,the, Union. Wethered, at this time did not . occupy a super- visory, position, and Griffith denied that he had ever given Wethered authority„ to, sound out the men as to the possibility of securing their allegiance to, a company union. We are satisfied, however, that Wethered urged the formation of a company union substantially as stated by Whitman and Volz and, in view of the circumstances, includ- ing the fact. that Wethered began his activity shortly after Griffith made. known his hostility toward the Union, we also conclude that Griffith encouraged Wethered's organization efforts. This conclusion is confirmed by the undisputed evidence of other events-occurring in the plant at about the same time, particularly the fact, as. found below, that Wethered, together with Oroshnik, Charles Scholz, and others, signed on'October 17 a 'document presented by Griffith pro- viding for a.p'lan't union. 'On October 12, 1938, Oroshnik, who at the time was chemist in the plant and whom Griffith regarded as a supervisory employee, told various employees that he had permission from Griffith to inquire whether they would be willing to join a company union and withdraw from the Union. Testimony to this effect "was given by Volz, Molini, Hendren, 'and Whitman. Oroshnik, who resigned from the respond- ent's employ on January 1, 1939, did'not appear as a witness. Griffith, in his testimony, beyond stating that he had not authorized such a canvass, did not dispute this occurrence. The employees' testimony stands unrefuted on the record and is credited by us. On October 17; near quitting time, Griffith called the men together, and read to them a document 'which had been prepared for him by one Ballieson, a labor relations' counsellor attached to the Brooklyn Chamber of Commerce. The introductory paragraph of the document refers to the fact that a' week earlier, Machlis' had called upon Griffith and that he had since presented a proposed contract. -It then stated, "We have studied this contract and have come to the conclusion that we cannot sign it." After enlarging upon.the benefits received by the employees' through labor policies laid down by Paul Uhlich, the founder of the Company, the statement declared that the respondent' would not enter into any closed-shop contract and further said, "The company also will not sign a contract and, as you know, the record proves that it has always maintained its promises' and pledges." The -r- PAUL UHLICH & CO.; INC. 689 essence of the respondent's proposal as it relates to a company union is contained in the following paragraph: While the company will not sign a contract for a closed shop or sign a contract with any union, nevertheless, if you employees-so desire, the company will recognize any collective bargaining agency you may elect consisting of your fellow employees and you may have on that committee any outsider you choose, and in this way we believe a method can be found for carrying on the same cordial and satisfactory relationship which has existed from the beginning of this company. The closing paragraph reads as follows: In closing let us emphasize the fact that we'have no interest in your union or non-union affiliations. We cannot and will not object to your having any one represent- you in collective bargaining that you choose. 'We sincerely hope that you will give this matter your deep consideration and, we will be glad to abide by the wish of the majority in this respect. After reading the statement, Mr. Griffith produced another paper which he requested certain employees to sign. The introductory para- graph of the document read, "'We the undersigned employees'of Paul Uhlich & Company have this day formed a committee that we wish to' have represent us in collective bargaining . . . " The document further set forth that the committee had no connection with any out- side organization, and that its members were authorized to negotiate with the respondent, provided they were bound by the provisions con- tained in the document previously read by Griffith. The third and final paragraph was as follows: "We also hereby notify you that we have not authorized any other group to represent us in collective bar- gaining with you as our employer." Wethered, one of the signers of the document, testified, "It was just an agreement that there was satisfaction, satisfactory satisfaction, among the men, the way we had been treated, and so forth." Other of the employees who signed were Bossa and Oroshnik, supervisory employees, and William McCartney. and Scholz. Scholz was the only union member among the signers. Andrew Molmi, another union member, testified that on presenting the document Griffith said to him, "How about you Andy?" Mo- lini replied, "I don't know what to do." Whereupon Griffith said, "I thought you were a friend of mine but I guess I'm wrong." Edward Carroll, also a union member, testified that he was asked by Griffith to sign the paper, but demurred, saying, "I am going to see what the rest" of the men do." Griffith thereupon said, according to Carroll, "lie didn't think I'd do that; I was in the factory because I was a friend of, the family." Griffith admitted having asked Molini and 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Carroll to sign.. We find that this incident was correctly stated by them. ' The document bearing, the various signatures, according to Griffith's testimony, was thereafter taken to Ballieson's office. Some time in December, at a date not definitely fixed in the record, 'Wetheinvited' employees Andrewv Melini,, Julio Burgos and serratte Rodriguez 4 to meet with him at a nearby inn and indulge 1 . 1 el in a social drink or two.' Molini and Burgos reported this invitation to union. committeemen, Whitman find Volz, and were advised to accept and find out what Wethered had in mind. When they arrived at the inn,' th'ey' found that Wethered was accompanied by Scholz, the day engineer in the plant and, as stated above, a signet of the paper presented by Griffith 'on October 17. Whitman and Volz were accustomed to f working somewhat later than the other men concerned,;but after finishing their duties they went to the inn arriv- ingtsome 45.minutes later than the.five other men. What happened there. can best be presented by the testimony of Molini. According to.Molini; Wethered first asked if the men still wanted to belong to the "C. I. 0." He received no answer. Molini went on to testify: So,he started telling us that he had seen Mrs. Ublicli and he knows, the place is going to close down after Christmas, and if we join a company union that he knows we-could get whatever we wanted. , We'd get our bonus back and a raise and vacation and , Then Charley ,Scholz spoke up and .he told us the. same thing. He started telling us about that he thought the company would treat us all right, would give us what we ask them for. And he (Scholz) said he belonged to unions before, that he went out, on strike once and he-when it was time to pull out he was the only one out, and, he was-left out in the cold. So he says: "I, don't, believe in unions no more." So he said: "Why don't you fellows get wise and stick with us," stick with the com- pany? I-I think the company will treat you all right. Since neither Rodriguez 'nor Burgos could furnish any clear recol- lection of what happened on this occasion, and the testimony of Wethered was 'very' vague, the testimony of Scholz assumed large importance. He testified: Well,•we all had our little talk about unionization and different topics. I ,don't know. I had"my say. I tried to get the boys to 'get out of the union, I myself. I tried to put them out of the ether, so to speak, that the C. I. O. put them under. The whole set-up was all wrong, the whole set-up. , 4 Known in the plant as "Frank" and frequently referred to under that name in the transcript, PAUL ' UHLICH '& 'Co.; INC. 691' Wethered admitted that he "wanted to form some sort of committee whereby we could band together to' wo'rk' for' one common cause, the interests of all." Moline further testified that', within a' few days-after this social occasion,' Griffith came to him and asked, "Did you make 'up your mind?" Molini inquired "About' what," whereupon Griffith replied; "what Mr. Wethered told you the other day." When Molini replied that he had not yet made up his mind, Griffith said, according to Molini's testimony, "I thought you was a friend of mine but I guess I'm wrong" and further stated, "something about the plant was going to close down that Thursday, to clean up the place and getting ready to close it down." Griffith denied any such conversation with- Molini. After considering the demeanor' of the various witnesses,' and the consistency of the events narrated by Molini with the undis- puted record of other occurrences in the plant at about this time, the Trial Examiner gave no credence to Griffith's testimony as to this event. We agree with the Trial Examiner's conclusion. Scholz's testimony shows that on August 13, 1939, he called a meeting, attended by eight employees, for the purpose of urging the employees "to sign a petition against unionization in the place." Scholz assured the employees present that Griffith would not sign a contract with the Union, and stated that he would speak' to Griffith concerning concessions- that'might be granted to an inside organiza- tion. Scholz admitted that he had been accustomed to speaking to Griffith frequently each week about the union problems' of the plant, and that in October 1938, he had questioned Griffith as to what concessions he would grant to an inside union. At that time, Griffith stated, "I will give the men the same thing that the C. I. O.' can give them." It is apparent and we find, that the attempts by Wethered and Scholz to form an inside union were approved by Griffith and were in full accord with Griffith's original scheme to form an organi- zation within the plant. The activity of Scholz furnished the basis for an attempt made by five union men in the third week of August 1939, to enlist him in an effort to confer with Griffith, ostensibly to discuss what conditions he would be willing to give in case they gave up their union organiza- tion. At the time, as these union members testified, their prime purpose was to endeavor to secure the reemployment of Volz who had been discharged on July 14. Scholz accepted the commission and spoke to Griffith in the matter, returning the answer to Kenyon, the shop steward, that so long as the men were members of an outside union, Griffith "couldn't talk contract with us or offer us or give us anything.", It thus is established that efforts by the respondent to oust the Union and substitute an inside organization began immediately after 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD knowledge reached the superintendent of the plant that a union had been formed. It is clear that in such efforts a leading part was taken by three men who signed the Plant Union document on October, 17, presented by Griffith. Wethered and Oroshnik initiated the move- ment and the organization, efforts were continued by Scholz and Wethered, both of whom were admittedly close to Griffith and acted with his approval. Wethered formally was designated assistant superintendent in April 1939, and after January 13,, 1939, when Bossa left because of illness, had acted in that capacity. As noted in Section III, A, above, Wethered continued his antiunion and pro- inside union activities, after he had been promoted to a supervisory position. The admitted action of Griffith on October 17, while not successful in its purpose to enlist a majority of the employees in the Plan which he proposed, did succeed to the extent of securing five signatures to his proposal, three of which were of non-supervisory employees eligible to union membership and one of whom was Scholz, who had signed a union application card on October 7, 1938. The efforts to discourage union` membership in favor of an inside organi- zation were continued from October 10, 1938, to a date shortly before the hearing began on September 18, 1939., It is true that the move- ment initiated by Griffith did not result in a formal , structural, labor organization. That the respondent's attempt to form such an organization was abortive, however, does not condone activities which are clearly prohibited by the Act.' From the, foregoing facts and circumstances it is apparent, and we find, that the respondent dominated and interfered with the formation of the abortive Plan, and contributed support to it, and thereby inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. C. The refusal to bargain collectively 1. The appropriate unit The Union contends that the respondent's production, maintenance, and shipping employees, excluding supervisory and clerical employees, and research chemists, constitute a unit appropriate for the purposes of collective bargaining. At the hearing no evidence was offered to dispute' this contention. The parties differed, however, as to the 5 Matter of Canvas Glove .Manufacturing Works, Inc and International Glove Makers Union , Local No 88, 1 N L R B 519 In this case, the facts of which are strikingly similar to the instant case , the Board stated In our opinion , Section 8, subdivision (2) of the Act forbids domination or interference not only where it is successful , and a labor organization is actually formed , but also snakes it an unfair labor practice where the domination or interference is unsuccessful Since the Act is remedial, it is appropriate to require the respondent to cease and desist from unfair labor practices which may, at some future time, be more successful Cf Matter of Monticello Manufacturing Corporation and Steel Workers Organizing Committee , No 2085, Affiliated With the Committee for Industrial organization, 17 N L . R B 1091 , Matter of Swift-& Company and, United Packing I-louse Workers Local Industrial Union #814, 15 N L. R B 992 PAUL UHLICH & CO., INC. 693, propriety of including certain specific employees 'within the above- described unit. While the Union and the respondent agreed that the two regular engineers, engaged in maintaining steam and heat for the production of colors, should be included in the appropriate unit, the Union requested and the respondent opposed the inclusion of the extra engineer. The extra engineer is employed generally from October to May on the same type of work as is performed by the regular engineers. Although the extra engineer's work is seasonal, we do not believe that such a con- sideration should impair his status as an employee entitled to a voice in the determination of representatives; consequently, we shall include him, together with the regular engineers, in the appropriate unit. During the summer months, when the extra engineer is not em- ployed at the plant, the respondent keeps a watchman in its employ. The respondent contends that the watchman should be included in the unit, and the Union does not dispute that contention. We con- clude that, like the extra engineer, the watchman is a seasonal worker entitled to a voice in the determination of representatives, and we shall include him in the appropriate unit. The respondent claims that Oroshnik, a research chemist who resigned from the respondent's employ in January 1939, should be be included in the unit as a production employee. The Union opposes the inclusion of Oroshnik. Griffith testified that he considered Oroshnik a supervisory employee, in that he checked up on colors and batches produced by the other employees to determine whether or not they were correctly made. Oroshnik, in October 1938, was one of the representatives of the respondent at a conference between the Union and the respondent. We shall exclude Oroshnik from the appropriate unit., Wethered, until he was elevated to the position of assistant superin- tendent in the spring of 1939, was a maintenance employee. That Wethered should be deemed within the unit at all times prior to the date of his promotion is not contested by the parties. It is clear that Wethered was within the unit during the time that he was engaged, as an ordinary maintenance worker. d Some question arises as to the status of Moran, a color maker and a member of the Union until the spring of 1939, when he was elevated to the position of laboratory chemist After assuming the duties of laboratory chemist, Moran resigned from the Union , and testified that he no longer considered himself a production worker. Griffith testified that, except for the independent research work performed by Oroshnik, Moran as laboratory chemist engaged in the same character of work as had been performed by Oroshnik prior to the termination of his employment with the respondent There is no dispute as to the propriety of including Moran in the appropriate unit during the period that he was engaged as a color maker, The respondent contends, however, that Moran should be deemed still within the unit despite his position as laboratory chemist, while the Union has taken no position as to his eligibility except that it excludes research chemists Moran cooperated with Griffith in conducting experiments for research , he engaged in substantially the same character of work as had Oroshnik , who was considered a supervisory employee by Griffith, and as a laboratory chemist, Moran considered himself out of the production unit Under the circumstances Moran, as laboratory chemist, no longer may be deemed to be within the appropriate unit. 323429-42-vol. 26-45 694, DECISIONS OF NATIONAL.LABOR RELATIONS BOARD We find that all the production, maintenance, and shipping em- ployees of the respondent, exclusive of supervisory and clerical employees, and research chemists, at all times material herein con- stituted and they now constitute a unit appropriate for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other, conditions of employment, and that said unit insures to the employees • of the respondent the full benefit of their right to self-organization and to collective bargaining and other- wise effectuates' the policies of,the Act. 2. Representation by. the Union of the majority in the appropriate unit The respondent's pay-roll 'lists for the weeks ending October 8, 1938, and June 21, 1939, within which period several 'bargaining conferences were held between the respondent and the Union, were introduced in evidence. These lists show 15 employees to be within the appropriate unit for the pay-roll period ending October 8, and 13 employees in the unit for the pay-roll period ending June 21. There also was submitted- in evidence 13 membership application cards designating the, Union I as bargaining representative-. , All • of these'cards were signed between October 6 and October 8, 1938. • The cards reveal that 43 of those employed in the unit for the pay-roll' period ending October 8; 1938, and 10• of those employed in the ' unit for the pay-roll period ending June -21, 1939, were 'members of • the Union. , , • Atthe hearing, Walter, Dowd, Rodriguez, Burgos, and Scholz, all, of whom had signed the Union's cards, testified, in response to exami nation by counsel for the respondent, that they no longer desired: to be represented by the Union for purposes of collective bargaining' with the respondent. In view of the various and numerous unfair labor practices of the respondent, we are satisfied that this professed defection from ' the, Union resulted from the respondent's unlawful' conduct and cannot be deemed to represent a free and untrammeled expression of the desires of these employees. Accordingly', we, are unable to give any weight to the testimony that these four employees no longer wish to be represented by the Union. We find that on October 8, 1938, and at all times thereafter, the Union was the duly designated representative of a majority of the employees in the appropriate unit, and, pursuant to Section 9 (a) of the Act, was the exclusive representative of all the employees in'such unit for the purposes of collective bargaining. 7 The name of the Union designated as bargaining agent on these cards is "Chemical Division of District No. 50, United Mine Workers of America", whereas, the name of the Union filing the charges herein is "Paint, Varnish and Allied Products Division, United Mine Workers of America, District No. 50, C. I. 0." At the hearing Machlis testified , in substance, that the Union to which the application cards were addressed is the parent organization of the Union filing the charges herein , PAUL UHLICI3 '& 'CO., ` INC. ' 695 3. The ,refusal to bargain As noted in Sections III A and B above, the respondent, after being notified by the Union that a majority of the employees had designated it ' as their bargaining representative , by various acts 'of coercion attempted to persuade the employees to abandon the Union in favor of an inside organization. Having met with little success in his attempt of October ' 17, 1938, to set up an independent organization , Griffith. on October 18 met with representatives of the Union to discuss a contract that it had submitted . Among other things, the contract provided for a closed shop, share-the-work method of operation, a fixed lunch hour; 11 named holidays with pay, hiring through the Union, review by the Union of discharges, fixed hours with time and one -half 'for ' overtime, increased wages, vacations with pay, and procedure for the presenta- tion of grievances . In 'a document entitled "Objections to the Union's Demands," which was read to the representatives of the Union at the October 18 meeting, the respondent refused all the Union's demands except those providing for a procedure for the presentation of grievances, time and one-half for overtime , and a week's vacation with pay. The concluding paragraph of this document read: In general , the company does not see fit to sign a written con- tract with this union because it feels that the union is not a responsible party. A true contract can only be written between responsible parties. The union could not be held for breach of contract nor has this Local , been in existence long enough to, prove that it is a reliable organization . The company has no objection to the union at any time presenting grievances for its members or bargaining with. the union for its members. The demands in general and in their entirety are so preposterous and out of line with the conditions under which our competitors operate that should we agree to its terms it would,mean that we would have to go out of business. Subsequent conferences between the Union and the respondent were held on October 24 and November 3, 1938, and January 4 and March 15, 1939. In these later meetings, the parties made no advance over the position reached on October 18.8 In the conference held on January 4, 1939, the Union "representative suggested that an arbitrator or mediator be called in. The Union e 9'lie respondent at the hearing contended that the majority representation by the Union had never been proven. After October 10, 1938, when Griffith was informed that a majority of the employees had designated the Union as their bargaining agent, the question of majority representation by the Union was not raised at any of the bargaining conferences. Griffith in his testimony named 10 men whom he had seen wearing union buttons in October 1938, thereby acknowledging notice that a majority of the employees had sub- scribed to membership in the Union. At the conference of October 18, the respondent admitted that the Union was entitled to negotiate for the employees Also, as noted above, Griffith was notified of the results of the election held at his behest on October 21, at which time a clear majority of the employees chose the Union as their bargaining representative. 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD also asked for a counterproposal from the respondent. Griffith, speaking for the respondent, stated that he had no counterproposals to make, and while he agreed to consider the arbitration or mediation suggestion, he later declined to enter into any such proceedings unless and until the charges filed against the respondent by the Union were withdrawn. As noted in Section III A above, Wethered, as assistant superin- tendent, notified the employees in May 1939, that he would no longer recognize the representative chosen by them for the presentation of shop grievances. At the hearing, Griffith testified that the essential difficulties which the respondent found with the men's demands were three: (1) the request for a signed agreement; (2) the closed shop; and (3) the demand that the Company should consult with the Union both in the hiring and in the discharge of its employees. From the beginning of bargain- ing negotiations between the Union and the respondent, until the dis- continuance, thereof because of the failure of the parties to agree on certain issues presented, the Union requested that regardless of the terms agreed upon, the parties be willing to incorporate those terms in a signed agreement. The respondent at no time during the bargaining conferences receded from the position that it would never enter into a signed agreement with the Union, stating as one of the reasons there- for, that it did not consider the Union a responsible party. The Trial Examiner in his Intermediate Report found that this insistence by the respondent that it would not reduce any understanding reached between the parties into a written contract was a factor in the final breakdown of negotiations. We agree in this determination. In numerous other cases we have found that the duty to bargain collec- tively encompasses the duty to reduce to writing the terms of any understanding reached if requested to do so by the employees' repre- sentatives.9 It is also apparent that there is no merit in the respond- ent's contention that the Union insisted upon a closed shop, preferen- tial hiring, and union review of discharges as conditions precedent to any agreement. It is undisputed that Machlis, during one of the bargaining conferences, suggested that a representative of the Division of Mediation for the State of New York be called in to "sit in with us as we negotiate our contract, and we will take his advice, or listen to his advice, as he offers it to either party." A suggestion such as this 9lllatter of Westinghouse Electric & Manufacturing Company and United Electrical, Radio and lvfachine Workers of America, 22 N L R B 147, and cases cited in note 23 therein , Matter of Producers Produce Company and Amalgamated Meat Cutters and Butcher Workers of No,th America , Poultry and Egg handlers Division, Local No 172, Affiliated with American Federation of Libor, 23 N L. R B 876, Cf Art Metal Con- struction Company v N L R B , 110 F (2d) 148 (C C A 2), decided February 26, 1940, mod'g as to other issues and enf'g Matter of Art Metal Construction Co and Int Ass'n of Machinists, Local 1559, 12 N. L R. B. 1307, N. L R B. v Highland Pork 1lfanufactuiing Company (C. C. A 4), decided March 11, 1940, enf'g Matter of highland Park Manufacturing Co and Textile Workers Organizing Committee, 12 N. L. R. B 1238. PAUL UHLICH & CO., INC. 697 emanating from the Union's representative indicates a willingness on the part of the Union to compromise these demands which Griffith claims to have considered as real obstructions to collective bargaining. As already noted, the respondent, (1) immediately after being requested to recognize the, Union as the majority representative, promised its employees certain benefits should they abandon the Union in favor of a plant organization; (2) on the day previous to its meeting with the Union for the consideration of a proposed contract, urged the employees to subscribe to its proposal for the establishment of ,in inside organization; and (3) while ostensibly conferring with the Union for the purposes of collective bargaining, continued its attempts to secure employee adherence to the Plan. In view of the circum- stances, we think the above conduct by the respondent clearly mani- fests that at no time during the negotiations with the Union slid the respondent intend to bargain collectively in good faith. We find that on October 18, 1938, and at all times thereafter, the respondent refused to bargain collectively with the Union as the representative of a majority of its employees within an appropriate unit, and thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. , D. The alleged discriminatory discharge of William Volz The amended complaint alleged that the respondent on July 13, 1939, discharged and refused to reinstate William Volz because he had joined and assisted the Union . Volz joined the Union when it began its membership drive at the respondent 's plant in the fall of 1938, and served on the Union's bargaining committee from the date of its incep- tion. He began working for the respondent as a pressman in 1922 and was employed as a color maker at the date of his discharge , having been granted several wage increases during this interval . Griffith described Volz as "Very capable . One of the best men we had in the place." On July 12 Wethered gave Burgos a formula and directed that he should go to Volz and aid him in producing the batch of color, which the formula represented, by weighing out the materials needed. Wethered also instructed ,Volz who, at the time was busy with another batch, to show Burgos where the materials needed for the operation were located . Volz testified that he twice showed Burgos three barrels from which materials were to be drawn in weighing off the batch. Burgos, however , who had never worked in this part of the plant before, testified that Volz declined to show him where the materials were located , but referred him rather to the formula which he had with him. During the time that Burgos was in the room with Volz, they had some discussion about union matters. Although Burgos had joined the Union in the fall of 1938, he subsequently had become 698 DECISIONS OF NATIONAL LABOR ' RELATIONS BOARD inactive therein, and other union members suspected that Burgos and Rodriguez had joined the inside organization sponsored by Wetherell. Volz testified that he inquired why Burgos no longer spoke to.the union members and that Burgos retorted that the failure to talk was due to the attitude of union members toward him. Burgos' version, however, was that Volz was disinclined to be helpful because Volz was doubtful of Burgos' loyalty to the Union. Burgos, after a short time, left the room and complained to Griffith that he was unable to carry out his assignment because Volz was unwilling to show him the material which he was supposed to weigh. Griffith thereupon turned the assignment over to Kenyon. Later Wethered reprimanded Volz; stating, "Bill, -when I send a man to you and tell you to show him something I expect you to do it." Volz contended that he had done exactly as Wetliered had directed him and suggested that if Wethered wished the formula read for Burgos, he should have given it to Volz. Wethered then responded that Volz's attitude was insubordinate and might lead to his' discharge. Volz retorted that Wethered's position also was not too secure, and that he knew many things about Wethered which might be reported to Griffith. The next morning, July 13, Wethered complained to Griffith con cerning this incident, and Griffith thereupon called in Volz and instructed him to tell all the union members that Wethered had full authority to hire and fire employees in the plant. Volz said, `,`All right," and left. During 'the same afternoon, Volz asked Rodriguez for the address of one Pechacho, a former employee in 'the plant, with whom Burgos had had some previous difficulties, including a fistic encounter. Rodriguez, being a close companion of Burgos, mentioned this request of Volz to Burgos, who voluntarily wrote the address of Pechacho on a slip of paper and gave it to Volz. Burgos testified that Volz, upon taking the address, stated, "I fix you." Volz admitted that Burgos handed him the address, at the same time stating, "Tell him (Pechacho) to come over here-I'll fix him myself." Shortly thereafter, Volz returned the address to Burgos. Volz testified that lie made inquiries of Pechacho's address for Whitman's brother who had some thought that he might find a job on the steamship on which Pechacho was working.I Whitman confirmed this testimony; however, no explanation was made eitlier'to'Burgos, Rodriguez, Wethered, 'or Griffith, that such was the reason for'Volz's inquiry. Burgos complained to Griffith concerning this alleged threat ' by Volz, and the matter was then' turned over to Wethered with instruc- tions to investigate and take appropriate action. Wethered then summoned Burgos and Volz, instructing Volz that he could not threaten anybody on company property 'and that he disapproved of, Volz's insubordinate conduct of the previous (lay. Although Volz denied having threatented Burgos,, Wethered informed him that it .PAUL UHLICH & CO:,' 1NC.. would be necessary to lay him off. According to Wethered's, testi- mony, Volz then responded, that Wethered, in laying. shim off, was merely acting • as a "puppet", for Griffith. Volz, admitted 'telling Wethered he was only a "Charlie McCarthy" for Griffith. Wethered stated; "When you feel that you know how to act toward a fellow man I may consider taking you back." At, the hearing, Wethered testified, "I laid off . Volz because there had been 'a charge, against him and because'he talked back to me and doubted the authority that I had." In view of the circumstances, we concluded that thee lay-off occurred for the reasons stated by Wethered rather than because of Volz's union membership or activity. On July 14, the morning following his lay-off of Volz, Wethered reported to Griffith concerning the incident, after which Griffith requested Kenyon, the shop steward, to investigate the alleged threat against Burgos by Volz' and that if it was' found that Volz had not threatened Burgos, he would be taken back. At the, hearing the respondent claimed that at this point Volz was temporarily laid off subject to being rehired if it was found that the charges made against him were false; and that subsequently he was permanently discharged due to the admission of, Volz that he was in possession of copies of a substantial part of the respondent's formulas which it used for'making colors. As to this alleged cause for the final discharge of Volz, Griffith testified that on the morning of July 14, Rodriguez reported, that in response to frequent requests by Volz some 6 or,7 months previous, he, had supplied Volz with copies of the weights and measures of various formulas that he worked on. Rodriguez at the time, of delivering this material to Volz was employed in the ice-color depart- ment while Volz was employed in the dry-color department. , When Volz appeared at the plant later in the morning to talk with Griffith concerning his lay-off by Wethered, Griffith questioned Volz con- cerning Rodriguez's report. Volz answered that Rodriguez had given him copies of a "lot of formulaes," and that, he was in possession of the "biggest part" of the respondent's formulas. Griffith responded, "You should be able to get a good job." At this,point,Volz left the plant and has not since been reemployed by the respondent. Although, Griffith admitted that anyone working as a color maker, as did Volz, would become familiar with,the formulas that he worked with, yet, he testified ,that the only legitimate possession of formulas, or copies thereof, by the, employees was,in connection with their actual work of making colors., It. was the uncontradicted testimony of all witnesses, including Volz,, that the formulas were regarded as the confidential property.of the respondent and that the employees on finishing the color which the, formula represented were required to turn the,formula back to the respondent for safekeeping. 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ,Griffith stated that, after this admitted violation of the respond- ent's regulations as to its formulas by Volz, he considered Volz ineligible for further employment, and that he so informed Kenyon, whereupon the union investigation of the alleged threat by Volz against Burgos was dropped. Since Volz admitted to Griffith that he had solicited information as to certain formulas from a fellow worker, we are satisfied that his additional statement that he was in possession of the major portion of the respondent's formulas provided a reason- able basis for the respondent's conclusion that Volz had misused the confidences entrusted him as a color maker. In view of the foregoing, we find that Volz was discharged for reasons other than his union membership and activity. Accordingly *e will dismiss the complaint insofar as it alleges such discrimination. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III A, B, and C, above, occurring in connection with the operations of the respondent described in Section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead' to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has interfered with, restrained, and coerced its employees in their exercise of the rights guaranteed in Section 7 of the Act, we shall order it to cease and desist therefrom, and to take certain affirmative action designed to effectuate the policies of the Act. We have found that the respondent has dominated and interfered with the formation of, and contributed support to, the abortive Plan. The fact that the respondent met with little success in this endeavor is no assurance that in the future it will refrain from engaging in unfair labor practices similar to those directed to the formation of the Plan. Thus, we shall enter an appropriate order that the respondent cease and desist from such unfair labor practices. We have found that on October 18, 1938, and at all times thereafter, the respondent refused to bargain collectively with the Union as exclusive bargaining representative of all its employees within an appropriate unit. In connection with its refusal to bargain, the respondent on several occasions expressed its determination not to sign any agreement with the Union regardless of the terms thereof. We shall order the respondent, upon request, to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, in respect to rates of pay, wages, hours of em- ployment, and other conditions of employment. We shall further PAUL UHLICH & CO., INC. 701 , order the respondent, if any understanding is reached on the afore- mentioned matters and the respondent is requested by the Union to do so, to embody such understanding in a signed agreement. Upon the basis of the foregoing findings of fact, and upon ,the entire record in the case, the Board makes the following:. CONCLUSIONS OF LAW 1. Paint, Varnish and Allied Products Division, United Mine Workers of America, District No. 50, C. I. 0., is a labor organization within, the meaning of Section 2 (5) of the Act. 2. The respondent's production, maintenance, and shipping em- ployees, excluding supervisory and clerical employees, and research chemists, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. Paint, Varnish and Allied Products Division, United Mine Workers of America, District No. 50, C. I. 0., was on October 10, 1938, and at all times thereafter has been, the exclusive representa- tive of all employees in such unit for the purposes of collective bar- gaining within the meaning of Section 9 (a) of the Act. 4. By refusing and continuing to refuse to bargain collectively with Paint, Varnish and Allied Products Division, United Mine Work- ers of America, District No. 50, C. I. O. as the exclusive representa- tive of its employees in such unit, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (5) of the Act. 5. By dominating and interfering with the formation of, and by contributing support to, a labor organization of its employees, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (2) of the Act. 6. By interfering with, restraining, and coercing its employees in, the exercise of the rights guaranteed them in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8 (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 8. The respondent has not engaged in unfair labor practices within the meaning of Section 8 (3) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations. Act, the National Labor Relations Board hereby orders that the respondent, Paul Uhlich & Co , Inc., and its trustees, officers, agents, successors, and assigns, shall: 702 DECISIONS OF -NATIONAL LABOR - RELATIONS BOARD 1. Cease and, desist from: 1 11 , - . . ,(a). - Refusing to bargain collectively with Paint; - Varnish, and Allied, Products Division, United Mine Workers of America, District No. 50, C. J. O:: as the exclusive representative of the respondent's produc- tion, maintenance, and shipping emplooyees, excluding clerical and supervisory employees, and research chemists; (b) In any manner dominating dr interfering with the formation or ;administration of any labor organization! of itsi employees, or con- tributing support, to any such labor organization.. (c) In any other manner interfering with, restraining, or coercing its -employees in. ,the exercise of their right - to self-organization, to form, join, or assist labor organizations, to bargain collectively through, representatives of -their own choosing, and to engage in concerted, activities for the purpose-of collective bargaining or other mutual aid, or 'protection, as guaranteed in Section 7 of the National Labor Relations Act. I , 2. Take the following, affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request bargain collectively with Paint, • Varnish and Allied Products Division, United Mine Workers,of America, District No. 50, C. I. O. as exclusive representative of its production, main- tenance, and shipping employees, excluding clerical and supervisory employees, and research, chemists, ,in respect to rates of pay, wages, hours of employment, and other conditions of employment; and if an understanding is reached on any such matters, upon request, embody' said understanding in a,signed agreement; (b) Post immediately in conspicuous places at its plant at Brooklyn, New York, and maintain for a period,of at least sixty (60) `consecutive days from the date,of posting, notices to, its employees stating: (1); that the.respondent will not engage in the conduct from. which' it is ordered to cease and -desist,in paragraphs 1 (a),-(b); and (c) 'of this Order;. (2) that the, respondent will take' the affirmative action. set forth in paragraph 2 (a), of the Order; (c) Notify the Regional Director for the Second Region' (New York City) in writing within ten (10) days from the date of -this Order what steps the respondent has taken to comply herewith. . IT, IS FURTHER, ORDERED, that the amended complaint be, and it hereby is, dismissed in so far, as it alleges that, the respondent has engaged in unfair labor practices within the meaning of Section 8 (3) of the National Labor Relations Act: 'MR. WILLIAM M. LEISERSON took no part in the coi ideration of trio above Decision and Order. - ' " It . . , 1 u !